No. 264-VOL. VI. COURT OF CHANCERY: JANUARY 14, 1854. PRICE, per Annum, £1 10s. NAMES OF THE CASES REPORTED IN THIS NUMBER. It is much to be regretted that the framers of the recent Civil Bill Consolidation Act, (14 & 15 Vic, c. 57,) did not more carefully consider the policy of the system of appeals from inferior jurisdic tions hitherto prevailing in this country. The appellate jurisdiction heretofore exercised by the judges of assize, aud, with some modifications, reenacted by the late Act, is in fact much more in the nature of a re-hearing of the action than of an appeal, as there is no restriction upon the parties with respect to the mode of conducting their several cases. Hence appeals are frequently resorted to, not so much for the purpose of reviewing the decision of the court below, as sustaining by fresh evidence a case which has failed in consequence of its own infirmity, and not of the error of the judge. The recent Act has endeavoured to impose an obstacle in the way of a party who has been nonsuited below, seeking to make good his complaint upon appeal, by the provision in section 127, which enacts that, except in ejectments, no appeal shall lie against a dismiss without prejudice, and sundry checks have likewise been interposed to prevent appeals merely to gain time. Notwithstanding, it too frequently happens that parties come to the hearing below with a less amount of prepara COURT OF EXCHEQUER-(Continued): M'GUINNESS v. HUNTER. Warranty of a horseContract of sale-Exceptions to judge's charge... 103 COURT OF ADMIRALTY: "THE MELISSA." Salvage-Towage-Bail-Costs 104 tion, from the conviction that they can subsequently mend their hand. This observation more especially applies to the defendant. We think that the authors of the 9 & 10 V. c. 85, and 13 & 14 V. c. 61, (English County Courts Acts,) with respect to the review of the decisions of the judges of these inferior jurisdictions, adopted a much more satisfactory course. We may here remark that the object of legislation in this department is to endeavour to hit the happy medium, wherein, while there shall be no denial of justice on the one hand, vexatious or futile litigation shall be avoided on the other; and again, that there should be an uniformity of judicial decisions as to the general law to be administered in these tribunals, as well as their particular practice. We have already adverted to the frivolous litigation, which an almost uncontrolled power of having a cause reheard must engender. Another objection lies to the nature of the appellate tribunal itself. Why should it be presumed that a single judge of assize, amidst his multifarious functions, should be more capable of deciding the questions brought before him on appeal than the judge whose attention has been particularly directed to matters comprised within his jurisdiction? We think that any such presumption is gratuitous. Even assuming that the learned judges of the land are preeminently qualified to rule these questions, it not unusually happens that the place of one is filled temporarily on Circuit by a locum tenens, himself fifty miles from their dwellings, and enabling him an Assistant Barrister. Why should such an one thus to subject the other to the risk of these expenses. be selected to sit in judgment on the decisions of We do not say that the English system is perfect; his fellows? Again, in the hurry of an Assize there are many details which might be advantageCourt, it is quite possible that a case, perhaps of ously supplied, such, for example, as enabling the small actual amount, but of great relative import- court of appeal to order a new trial in an adjoining ance to the humble suitor, may not receive that de- county, but it is a decided improvement on our own gree of time, patience, and attention, which it has plan, and we hope yet to see it in great measure already had below. Lastly, there is no guarantee adopted. for uniformity of decisions in our present Civil Bill system. A judge will not consider himself bound by the decision of another judge of co-ordinate jurisdiction, and he may decide the contrary. Hence it is not improbable that appeals have hitherto been taken, the parties speculating on the chance of a particular judge hearing the cause. GENERAL ORDERS IN THE QUEEN'S BENCH, COMMON PLEAS, EXCHEQUER OF IN Dated 11th day of January, 1854. The English plan may not be free from defects, but it avoids many of the evils of our system. The 9 & 10 Vic. c. 85, s. 89, gives the court below the power of ordering a new trial at its discretion; this gets rid of the hardship to which parties would be sub-tutes and powers in that behalf, it is ordered— jected in case of a surprize or of newly-discovered evidence. Then, in order to insure the due observance of the law of the land, and, as far as possible, uniformity of practice in the County Courts, the 13 & 14 Vic. c. 61, s. 14, provides that in case either party in any cause shall be dissatisfied with the determination or direction of the court in point of law or upon the admission or rejection of any evidence, such party may appeal from the same to any of the Superior Courts of Common Law at Westminster, two or more of the puisne judges whereof shall sit out of Term as a court of appeal for that purpose." Security must be given by the appellant as directed by the Act. The said court of appeal "may either order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be." The appeal by section 15 is to be in the form of a case agreed on by both parties, or their attorneys; or, in case of a disagreement, to be settled by the judge. Parliament holden in the 16th and 17th years pursuance of a Statute passed in the Session of of the reign of Queen Victoria, entitled, " An Act to Amend the Procedure in the Superior Courts of Common Law in Ireland," and of all other Sta It may be said that a bardship would be inflicted on a poor plaintiff or defendant, if he had to follow his case into the Superior Courts. However, it is the written case only that goes forward. No witnesses need be brought up. On the other hand, the beneficent intention of the Legislature in their attempt to bring justice to the doors of the poor, by the holding of District Civil Bill Courts, may be, and, no doubt, is often frustrated by the facility given to a wealthy appellant to harrass his opponent by dragging him and his witnesses to the assize-town, perhaps some 1. That the following shall be the general or ders of the Courts of Queen's Bench, Common Pleas, Exchequer of Pleas, and Exchequer Chamber; and that all other general orders of the said abolished, save and except as regards any step or courts, or any of them, shall be considered to be proceeding heretofore taken, and save as hereinafter provided. That all former orders which are hereinafter simply repeated, shall continue to operate as if the same had not been disturbed; and that all variations of former orders, and all new orders, shall take effect from the date of these rules, as to all actions thereafter to be commenced, and also as to actions then depending, so far as the same may be applicable thereto; and where the same shall not be so applicable, the general orders hitherto in force shall be deemed to be subsisting, and shall apply to such actions; provided, nevertheless, that nothing contained in this order or the following orders shall apply to or affect the orders of the Court of Queen's Bench at the Crown side, or actions of Quare Impedit therein; the orders and recoveries, or in relation to the Statute passed of the Court of Common Pleas in relation to fines in the 4th and 5th years of the reign of his late Majesty King William the Fourth, entitled, " An Act for the Abolition of Fines and Recoveries, aud for the Substitution of more Simple Modes of Assurance in Ireland," or actions of Quare Impedit therein; or the orders of the Court of Exchequer at the revenue side thereof; and it is further ordered the following general orders, importing the singu2. That whenever any word is used in any of lar number, or the masculine gender only, the same shall apply to several persons as well as one person, and to bodies corporate as well as to individuals, and to females as well as males; and the word "Judge" shall be taken to mean also "Baron;" and the word "county" shall include (when necessary and consistent) any county of a city or county of a town or city, or county of a place, or city and county, as the case may be; and the word "court" shall apply to a Judge or Baron sitting alone or in chamber, as well as to the full court; and the word "party" or "person" shall extend to and include any corporation or other public body; and whenever the entry of a side-bar rule, "as of course," is authorized, it shall be understood that such rule may be entered without the production of any affidavit or other document to the officer; and the word "affidavit" shall include an affirmation or declaration made by any person who is empowered to give evidence by affirmation or declaration in lieu of oath; and none of the following rules requiring the affidavit of, or any act to be done by the attorney, or the signature of attorney or counsel, or service on the attorney, shall apply to cases where plaintiff or defendant shall sue or defend in person; but all such acts shall be done by, and notices given to, the party so suing or defending in person. Course of Business of the Courts. 3. Motious for prohibitions or attachments, or for any relief or order against a sheriff or against an attorney, grounded on the jurisdiction of the court over them as officers, may be made on any day during the sitting of the courts. 4. On the last day of Term only, members of the bar shall take precedence according to juniority, without prejudice to the Attorney or SolicitorGeneral, moving officially in her Majesty's causes, at any time they may see convenient. 5. The days for the admission of attorneys shall be the first and last days of Term, and every Monday in Term. Computation of Time. 6. When, by any rule, order, or proceeding, time is to be computed by days, it shall be inclusive or exclusive of the holydays under the Common Law Procedure Amendment Act, (Ireland), 1853, as is by that Statute directed; and when by the month, it shall be considered a calendar month; and when by the year, twelve calendar months; and in all cases it shall be exclusive of the first and inclusive of the last day, unless the last be a holyday, under the Common Law Procedure Amendment Act, (Ireland), 1853, when the following day shall be included. Writ of Summons and Plaint. 7. In addition to the indorsement required by the Common Law Procedure Amendment Act, (Ireland), 1853, every writ of summons and plaint shall have the following memorandum endorsed thereon, before service thereof : "N.B.-This writ is to be served within six calendar months from the date thereof, including the day of such date, and not afterwards." [And if the action be for a liquidated demand, add :—“ And if the amount within claimed, and £ for costs, be paid to the plaintiff or his attorney, within six days from the service hereof, further proceedings will be stayed."] 8. When the sum claimed shall be paid, pursuant to such indorsement, the defendant shall be at liberty to call upon the plaintiff's attorney, by notice, for the taxation of the costs, and, if more than one-sixth shall be disallowed, the plaintiff's attorney shall pay the costs of the taxation, and return to the defendant or his attorney the amount overcharged, otherwise the defendant shall pay such costs. Affidavit of Service. 9. In every affidavit of personal service of the writ of summons and plaint, the process-server shall swear that he is acquainted with the person of the defendant whom he has served. Admission of Next Friend. 10. A special admission of prochein ami, or guardian, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified. Bail. 11. Where the defendant is described in the ca. pias or affidavit to hold to bail by initials or a wrong name, or without a Christian name, the defendant shall not therefore be discharged out of celled, if it shall appear to the court that due dilicustody, nor the bail-bond delivered up to be caugence had been used to obtain knowledge of the proper name. 12. Every affidavit to hold to bail shall be laid seeking a fiat, and every such fiat shall be written before the judge by the attorney for the party or printed on the same sheet with the affidavit or one of the affidavits to ground such fiat; and in case the judge shall refuse such fiat, he shall indorse his initials thereon, with the words "No. rule," and in such case such affidavit shall not be laid before another judge without apprising him of the fact of such refusal. 13. Every notice of bail and for security for costs shall, in addition to the description of the bail, mention the street or place, and number, (if any), where each of the bail resides, and all the streets or places, and numbers, (if any), in which each of them has been resident at any time within' the preceding six months, and whether he is a housekeeper, or householder, or freeholder. 14. Notice of more bail than two shall be deemed irregular, unless by order of the court. 15. In town cases, two clear days', and in country cases four clear days', notice of bail shall be given, and in town cases a copy of such notice shall be lodged with the Clerk of the Rules the day before such bail shall be given, and no rule to receive bail or to confirm bail shall, in any case, be necessary. 16. When bail to the sheriff shall be tendered as bail to the action, the plaintiff may object to the said bail, although he may have taken an assignment of the bail-bond. 17. No practising attorney, or clerk, or appren. tice to a practising attorney, shall be bail for any defendant, in any case whatsoever, without the leave of the court. 18. For the purpose of giving bail before a Com missioner or Judge of Assize, a side-bar rule may, in all cases, be entered, on an affidavit of the defendant's inability to give bail in Dublin, and such bail shall be given within a week from the entry of such rule. 19. In all cases where bail qualify, they shall sign a bail piece, which shall likewise be signed by the defendant's attorney. 20. In the case of bail taken before a Commissioner or Judge of Assize, it shall be the duty of the commissioner or judge's registrar, as the case may be, to transmit forthwith by post the bailpiece and affidavit of perfection to the master of the court in which the action is pending, to be filed by him in the proper office. 21. The sheriff may, in all cases, as of course, enter a side-bar rule to lodge in court the money deposited in lieu of bail to him, pursuant to Statute 43 Geo. III., c. 46, s. 2, and the defendant may, in all cases, as of course, enter a side bar rule for liberty to lodge money in lieu of bail at bar, pursuant to statute 10 Geo. IV., c. 35. 22. In all cases where the plaintiff or defendant shall be entitled to draw money lodged in lieu of bail, in pursuance of statutes 43 Geo. III., c. 46, and 10 Geo. IV., c. 35, or either of them, the application for that purpose shall be by motion on notice to the defendant or plaintiff, as the case may be, and to the sheriff, and the order thereon shall be absolute in the first instance, unless the court shall otherwise direct. 23. An action may be brought upon the bond by the sheriff himself in any court. 30. When the plaintiff shall proceed by action, or by scire facias, against bail to the action, the bail shall be at liberty to render their principal at any time within the time for the filing of their ap pearance and defence in such action or scire facias, but not at any later period; and on such render being duly made, and notice thereof given, the proceedings shall be stayed, on payment of the costs of the process, or scire facias, and the service thereof only; and they shall be at liberty to render their principal at any time during the last day for render, before the Marshalsea shall be closed for the night. 31. It shall not in any case be necessary to issue a writ of capias ad satisfaciendum before taking proceedings against bail to the action. Pleadings, up to final judgment. 32. The signature of counsel shall not be neces sary to any summons and plaint; but in all cases in which a summons and plaint shall be signed by counsel, and in which it shall appear to the taxing officer that same should have been settled by counsel, he shall allow such fee to counsel, not being less than ten shillings and sixpence, as from the length or difficulty of the summons and plaint, or the nature of the case, he shall think just. 33. All pleadings subsequent to summons and plaint shall be sigued by counsel; and the taxing officer shall at his discretion allow, on taxation, as against the party, such fee to counsel, not being bail-less than one guinea, for advising and preparing such pleading, as from the length or difficulty thereof, or from the nature of the case, he may consider just. 24. A plaintiff shall not be at liberty to proceed on the bail-bond pending a rule to bring in the body of the defendant. 25. No bail-bond shall be put in suit until after the expiration of eight days, exclusive of the return day of the Capias; and in case of several actions on the bail-bond, proceedings may be restricted to one action, on payment of costs, unless sufficient reason be shown for proceeding in more than one. 26. In all cases where the bail-bond shall be directed to stand as security, the plaintiff shall be at liberty to mark judgment on it. 27. Bail shall be only liable to the sum sworn to by the affidavit to hold to bail, and the costs of suit, not exceeding in the whole the amount of the sum for which they have qualified. 28. Where bail is to be put in before a judge of assize, twenty four hours' notice thereof shall be given to the judge's registrar; and the defendant's attorney, or some one on his behalf, shall attend the judge with such bail. 34. All writs of summons and plaint, appearances and defences, particulars of defence and setoff and subsequent pleadings, abstracts of issue, bills of exceptions, writs of inquiry, revivor, and scire facias, handed by the attorneys to the office shall be legibly engrossed or printed on parchment fifteen inches square, book wise, and shall contain thirty-six lines, or thereabouts, on each page, leav ing a margin on the left hand side of the front, aud on the right hand side of the reverse, of at least two inches; and each cause of action in a summons and plaint, and each further plea of a defendant, shall be commenced in a new paragraph. 35. When judgments shall be marked upon pleadings filed before the 12th of June, 1850, which are not engrossed on parchment of proper dimensions, so that same cannot be bound in the manner prescribed by the Act 13 Vic., c. 18, a new engrossment of the same in proper form shall be prepared by the officer, and substituted on the 29. No application shall be made to stay pro-judgment file, in lieu of such original pleadings: ceedings regularly commenced on the assignment of any bail-bond, or to set aside an attachment regularly obtained against the sheriff for not bring. ing in the body, unless grounded on an affidavit of merits, if made on the part of the original defen dant, or grounded on an affidavit showing that such application is really and bona fide made on the part of the sheriff or bail, at his or their own expense, and for his or their indemnity only, and without collusion with the original defendant. the expenses thereof to be paid as part of the incidental expenses of the offices, pursuant to the 13 Vic., c. 18, s. 45. 36. When a defendant shall be in actual custody of the sheriff, and a summons and plaint shall not have been served, or if served, shall not have been filed in due time, the defendant may at any time within twenty days from the day of his arrest, or where the defendant shall be in actual custody of the marshal, he may at any time, on affidavit that he is in custody, and has not applied for his discharge under the Insolvent Debtor's Act, obtain a side-bar rule that the plaintiff shall file a summons and plaint against him within four days, or that he shall be discharged; and in case no summons and plaint shall be filed within the time limited, on au affidavit of the service of the rule, and a certificate of no summons and plaint filed, the defendant shall be entitled to an absolute rule for his discharge. 37. After the expiration of six months from the service of the summons and plaint, or the arrest of defendant, whichever may first take place, unless the plaintiff shall have filed the summons and plaint, or a copy thereof, the defendant, if in actual custody, on an affidavit thereof, and a certificate of no summons and plaint filed, may obtain an absolute side-bar rule for his discharge at the plaintiff's suit. 38. Where a cause shall be removed by certiorari, the plaintiff shall be deemed out of court, unless he shall file a writ of summons and plaint within six months from the return of the certiorari. 39. The time for filing a summons and plaint shall not in any case be extended, unless by motion for that purpose. 40. No amendment whatever of any writ or pleading shall be allowed, except by consent or order of the court on motion, unless authorized by the Common Law Procedure Amendment Act (Ireland), 1853, sections 87 and 89. 41. Whenever a plaintiff shall amend the writ of summons and plaint, after notice by the defendant, or a plea in abatement by reason of a nonjoinder, by virtue of the Common Law Procedure Amendment Act (Ireland), 1853, sec. 87, he shall file a consent in writing of the party or parties whose name or names is or are to be added, together with an affidavit of the handwriting, and give notice thereof to the defendant, unless the filing of such consent be dispensed with by order of the court or a judge. 42. Where the plaintiff (to avoid the expense of a defence of payment or set-off) shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, or which the plaintiff admits the defendant is entitled to set-off, it shall not be necessary for the defendant to plead the payment or set-off of such sum or sums of money. But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand, states that he seeks to recover a certain balance, without giving credit for any particular sum or sums, or to cases of set-off where the plaintiff does not state the particulars of such set-off. 43. Where a defendant shall rely upon a judgment recovered in another court, by way of defence, he shall, at the foot of such defence, state the date of such judgment; and if such judgment shall be in a Court of Record, the number of the roll on which such judgment is entered, if any; and in default of such statement, the plaintiff shall be at liberty to sign judgment as for want of a defence; and in case such statement shall be falsely made by the defendant, the plaintiff may apply to the court by motion, on notice, for liberty to mark judgment, on a certificate from the proper officer or person having the custody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as stated in the pleading. 44. The affidavit to verify a dilatory pleading, pursuant to the statute 6 Anne, c. 10, s. 11, shall be annexed to such pleading, and entitled in the cause. 45. If either party, without a rule for that purpose, plead and demur, or reply and demur, or plead or reply several matters, for the pleading of which a rule is required by the Common Law Procedure Amendment Act (Ireland), 1853, the opposite party may mark judgment without motion. 46. A defendant shall not be at liberty, without the consent of the plaintiff, to file a confession of action, or consent for judgment, containing any stay of execution, or specifying a sum for debt or damages, less than that claimed by the plaintiff, or with a blank for debt or damages. 47. Confessions of action and consents of judg.. ment may be filed without the signature of counsel thereto. 48. On the filing of any confession, consent for judgment, or plea of plene administravit, or plene administravit præter, the plaintiff may enter a rule for the proper judgment, and mark such judgment thereon. 49. In case money be lodged in court upon a plea of tender, and the plaintiff shall be willing to accept the same in full satisfaction of the demand with respect to which the tender has been pleaded, the defendant shall be entitled to his costs of suit, so far as relates to such demand, the same to be deducted from the amount of such lodgment, and the plaintiff shall only be entitled to draw the balance; and if the sum so lodged be insufficient to answer the defendant's costs, the defendant shall be entitled to an order for the payment of the balance thereof. 50. When a demurrer shall have been filed, the party filing the demurrer shall, within six days thereafter, make up the paper books for the judges, and deposit the same in the office of the Clerk of the Rules, where they shall remain two days for the examination of the opposite party; on the expiration of which period they shall be delivered to the judges by the clerk of the rules, and the case set down by either party for argument by side-bar rule. And if the books be not made up and lodged within the specified time as aforesaid, by the party Alling the demurrer, the demurrer shall be considered as set aside, and the opposite party shall be at liberty to proceed as if no such demurrer had been filed; and if there shall be a demurrer on the part both of plaintiff and defendant, the plaintiff shall be considered as the party bound to make up the books within the meaning of this rule; and in case he shall fail so to do, his demurrer shall be considered as set aside, and the demurrer of the defendant allowed. And the costs of such books shall, in all cases, follow the judgment on demur rer. 51. All paper books for the judges on demurrer |