46

Superior Courts: Exchequer.

Littledale, J., thought the service insufficient, and therefore refused to allow the defendant's discharge.

Rule refused. George v. Fry, M. T. 1835. K. B. P. C.

or for a new trial, under the following circumstances. The action was for work and labour done, and was brought against the defendant, as vestry clerk of the parish of St. Marylebone, in pursuance of the local act, 35 Geo. 3. c.73. The action was tried before the sheriff. The present application was made on two grounds;

LORDS' ACT.—SERvice of notice on A CRE- first, that twenty-one days' notice of the com

DITOR.-MOTION TO BRING UP A PRISONER.

It is necessary to serve a notice of an intention to apply for leave to bring up a prisoner, under the Lords Act, at the usual pluce of abode of the creditors, and to give reasonable proof of the notice having reached

their hands.

mencement of the suit had not been given, pursuant to the provisions of the Act in question; and secondly, that a Mr. Eastwick, whose testimony was tendered for the defendant, was rejected as a witness, on the ground that at the time when the cause of action arose, he was one of the guardians of the poor of the parish, although when the trial came on he had ceased This was a motion under the Lords' Act, for to be so. In support of the first objection, a a rule to bring up a prisoner. The affidavit on case of assumpsit brought against a roll collecwhich the motion was made, set forth that the tor to recover back certain tolls which he had usual notice had been served upon all the cre- improperly taken from the plaintiff, was cited. ditors, but some doubt arose as to the legality In the act on which that action was brought, as of the service on one of them. It appeared well as in the present, a clause was introduced, that the attorney's clerk, by whom the affidavit by which notice of the commencement of the was sworn, stated that he had been several action was required to be given; and the Court times to the residence of the person sought to in giving judgment said that the question was, be served, and had not been able to meet with whether the provision was confined to actions him, notwithstanding his having made repeated for tort, or whether it extended to assumpsit. appointments. He in consequence left the The meaning of the clause was, that notice notice with the landlady of the house, to be should be given in order that the parties, against given to him. The Court, however, held this whom the action was brought, might tender to be an insufficient service. The Act required satisfaction. In the present case the defendant the notice should be left at the creditor's usual was a stranger to the plaintiff, and it was of place of abode, and leaving it at the door of importance that he should receive notice of the the house where he lodged, in the hands of a action, and that some time should elapse before person, who perhaps would never give it to the process was sued out, in order that he might him, was clearly not enough. Leave was, how-in the interim make inquiries into the case, and ever, given to amend the affidavit. A subsc- propose terms which might probably be attended quent application was made to the Court of with favorable results. King's Bench when the affidavit had been amended by the clerk stating that the landlady had said she acted as the servant of the creditor. This was also held insufficient, the deponent not swearing to his belief of the information, and in consequence the affidavit was now a second time amended. It now stated that the deponent believed the statement of the landlady to be true.

Littledale J. now granted the rule. Rule granted. Lilly v. Gompertz, M. T. 1835. K. B. P. C.

MARYLEBONE

Exchequer.

VESTRY ACT. ITS APPLICATION то TORTS OR ASSUMPSITS. EXGUARDIAN OF THE POOR.-WITNESS.

The Court said, with regard to the case now cited, the action there was in point of fact for extorting money by duress; and although the plaintiff was entitled to recover the money by assumpsit, yet the case was clearly different from the present. The present case was not distinguished from an ordinary action, and it was the duty of the guardians, for whom the defendant acted, to know what contracts they made, and of the defendant immediately to acquaint his employers with the circumstance of the commencement of the action, who could then pay money into court if they thought proper.

No case had been decided where it was held that a contract of the present description came within the provisions of the Act.

With regard to the second objection taken, it was submitted that the witness's evidence was admissible, and that having given up his office of guardian of the poor, any testimony he The provision of the Marylebone Vestry Act, could give would only affect him as a parishwhereby twenty-one days notice of proceed-ioner. It was expressly provided by the Act, ings is required, applies to torts only, and that a parishioner should be a competent witnot to assumpsits. ness, and that a guardian of the poor should A parishioner having been guardian of the not be personally liable for any action, &c. poor, at the time of the contract being made for which the action was brought, but having since vacated the office, is a compe

On this latter point a rule nisi was granted, to which cause was now shewn, when it was contended that the witness was in point of fact a defendant. A case was cited where the Court had held that trustees, being empowered A motion was made for leave to enter a nonsuit, to sue and be sued through their treasurer, were

tent witness under the Act.

Superior Courts: Exchequer.—Sittings.—Answers to Queries.

not competent witnesses for the defendant in such an action.

The Court, without hearing the arguments in support of the rule, said that the witness should have been heard. He was neither a real nor a nominal defendant. Not real, because the Act provided that he should not be personally liable; and not nominal, because the clerk was directed to be sued. The rule therefore must be absolute.

Rule absolute.-Fletcher v. Greenwell, T. T. 1835. Excheq.

47

whether the same has been issued by him, or
with his authority or privity; and if so, then
he shall also-in case the Court, or any Judge
of the same, or of any other Court, shall so
order and direct, declare in writing, within a
time to be allowed by such Court or Judge,
"the profession, occupation or quality, and
place of abode of the plaintiff, on pain of
being guilty of a contempt of the Court
from which such writ shall have been issued;"
and by the latter part of the same section, if
such attorney shall declare that the same was
not issued by him, or with his authority or pri-
vity, then the said Court or Judge shall and
may, if it shall appear reasonable so to do,
make an order for the immediate discharge of
any defendant who may have been arrested on
any such writ, on entering a common appear-
ance. Thus giving the Court, or any Judge,
power to make an order (after a demand in
writing) for a declaration in writing of the
profession, occupation, or quality, and place of
abode of a plaintiff, in an action commenced hy
any of the writs enumerated in that act; and
the same must be furnished by the attorney
within the time allowed, under pain of being
guilty of a contempt of the Court from which
such process issued. If the attorney shall de-
clare that the writ was not issued by him, or
with his authority or privity, then, if it shall
appear to the Court or Judge reasonable so to
do, they may, in the case of a cupias, order the
defendant to be discharged on entering a com-
mon appearance; which in the case of an ar-
rest must be considered as a sufficient punish-
ment; and although the act is silent as to the
punishment to be inflicted, if a writ of sum-
mons shall not have been issued by or with the
authority or privity of the attorney whose
name is indorsed, I have no doubt but that the
Court or Judge would stay all proceedings on
it, if not set the same aside with costs for irre-
gularity; as by the 12th section of the same
act, the name and place of abode of the attor-
ney actually suing out the same is to be in-
dorsed; and in case such attorney shall not be
an attorney of the court in which the same is
sued out, then the same is to be endorsed with
the name and place of abode of such attorney
in whose name the saine is sued out; and in
case of the writ being sued out by the plaintiff
in person, then a memorandum expressing such
to be the fact, mentioning the city, town, or
parish, and also the name of the hamlet, street,
and number of the house of such plaintiff.
H. P. J.

2. Yes. The Uniformity of Process Act, 2W. 4, c. 39, s. 17, makes no distinction between a Writ of Capias and a Writ of Summons.

PRACTICE.-RE-ENTRY.

P. 480.

N. G.

FI. FA. VOL. 10,

The safer, and by far the more satisfactory course for the plaintiff to adopt, would be to issue another writ of fi. fa. Although it seems a question whether, supposing the re

48

Answers to Queries.—Queries.-The Editor's Letter Box.

turn to the first writ to be unexpired, the sheriff might not justify a re-entry under it. If, however, the first writ of fi. fa. is made "returnable immediately after the execution of it," under 3 & 4 Wm. 4, c. 67, s. 2, then I think there can be no doubt but the day whereon it was executed would be considered the return day; and consequently, for a second entry under it, trespass might be maintained. The first writ of fi. fa. need not be returned previously to issuing a second fi. fa. See Edmond, assignee of Sheriff of Surrey v. Ross, 9 Price, 5, 12.

N.G.

Law of Property and Conveyancing. BEQUEST PROPERTY. VOL. 10, P. 416. 478. F. W. S., in his answer to this query, has omitted to notice two cases which appear to me to bear more immediately on the point than those cited by him, all of which (with the exception of Arnold v. Arnold) turn on the construction of the words "estate and effects,' and not on the word " property.” The two cases I allude to are Moore v.Moore, 1Bro. Ch. C. 127, and Flemming v. Brook, 1 Sch. & Lef. 318. In the former of which it was decided that, under the words "all my goods and chattels," bonds and other choses in action did not pass, on account of their want of locality; by the latter it was held that cash and notes, as they are quasi cash, passed by the words "all my property in my house in Duke Street;" but that it was otherwise as regarded bonds, bankers' accountable receipts, and other choses in action: since they (except as bona notabilia, to determine in what Court probate should be obtained) had no locality. B. M.

CORPORATION ACT. VOL. 10, P. 464.

An answer to the query with regard to lands devised to corporations for charitable uses, reverting to the heirs of the testator after the passing of the Corporation Act, will, I think, be found in the act itself, sec. 71, et seq. T. S.

RIGHT OF VOTING.-MORTGAGE.

p. 464.

VOL. 10,

perty, whether freehold or otherwise, I may be possessed of at my decease, to my niece, N. P., and do appoint her executrix of this my will." Does this will (duly attested), pass a freehold estate of which the testator was seised in fee simple at the time of his death? C. G.

Practice.

DECLARATION.-OATHS ABOLITION ACT.

Does a declaration under the 5 & 6 W. 4, being the act for the abolition of oaths, require the same stamp as an affidavit did, as the act is quite silent upon that subject? or will it be considered that the declaration, which the act states to be only a substitute for the oath formerly taken, is not liable under the Stamp Act, which act expressly states, that an affidavit not made for the immediate purpose of being filed, read, or used in any court of law or equity, for every sheet or piece of paper, parchment, or vellum, on which the | same shall be written or printed, 2s. 6d. N. O.

THE EDITOR'S LETTER BOX.

That part of the Legal Almanac for 1836, which is designed as an Office Diary,-containing all useful intelligence for each day throughout the year, collected from the vari ous acts of parliament as to legal proceedings, elections, and other professional matters, has been framed with a view to the use of subscribers in general: the few who require a larger space for memoranda can have it interleaved.

If C. will state concisely the error in his communication which he wishes corrected, it shall be noticed if the error he important; but we cannot allow him to indulge his spleen at the expense of our other correspondents. We do the best we can to please all parties.

rather antiquated.

We are much obliged to "Aspiro" for his communication, but think that none but opiPresuming there is a surplus of income over nions of the first authority are eligible. The the interest of the mortgage, and "a sub-name is not familiar to legal ears, and the date scriber, or some one on his behalf is in receipt of such surplus, it is very clear the votes would be allowed; in fact, in similar instances it has been decided so. Of course every thing depends upon that fact, which is omitted in the query.

QUERIES.

READER.

Law of Property and Conveyancing.

DEVISE.-FEE.

to.

The suggestion of E. W. shall be attended

The Queries and Answers of F. W. D. and
Tyro" have been received.

Several Books which we have received shall be noticed at the earliest opportunity. Our brethren are entitled to have a candid statement of the nature of their labours laid before the profession.

The Fourth Part of the Quarterly Digest of all Reported Cases for the present year, which completes the Volume, is now published. The "I, W. R., do will and bequeath the pro-price of the Part is 2s.-the Volume, 88.

The Legal Observer.

SATURDAY, NOVEMBER 28, 1835.

"Quod magis ad NOS
Pertinet, et nescire malum est, agitamus.

quired to take certain oaths, and do certain and subscribed the said declaration, and

taken and subscribed the said oath within the time and in the manner appointed by the several acts before mentioned."

Scarlett moved for a quo warranto information against the mayor and four bailiffs of Berwick. These officers were elected on the 29th of September in the last year, and were on the same day sworn and admitted into their respective offices. They all neglected to receive the sacrament, and

months, as required by the 25 Car. 2, c. 2; 16 G. 2, c. 30; 1 G. 1, st. 2, c. 13; and 9 G. 2, c. 26. It will be urged, that they are protected by the last annual indemnity act. But that act passed on the 27th of February last, and only applies to those who "at or before the passing of the act,”. had incurred penalties or disabilities. These persons being elected on the 29th of September, had not incurred any penalty or disability when the indemnity act passed, and cannot therefore be protected by it.

other acts by certain statutes therein recited, have, "through ignorance of the law, absence, or some unavoidable accident, omitted to take and subscribe the said oaths, &c., Mr. Salomons was elected sheriff, and within such time, and in such manner as in subsequently alderman, after the 26th of and by the said acts respectively, or by any March in this year; and if the Indemnity other act of parliament in that behalf made, act had only a retrospective operation, he is required, whereby they have incurred, or would on failure of making the required may be in danger of incurring, divers pen- declaration, incur the consequences of the alties and disabilities;" and then it pro-9 G. 4, c. 17. But it has been expressly ceeds to enact, "that all and every person decided by the Court of King's Bench, that and persons who, at or before the passing it has also a prospective operation. This of this act, hath or shall have omitted to was in the case In re Stevenson, 2 B. & take and subscribe the said oaths, &c. with- Cress. 34; which is as follows: in such time, and in such manner as in and by the said acts or any of them, or by any other act of parliament in that behalf made, is required, and who, after accepting any such office, &c., before the passing of this act, hath or have taken and subscribed the said oaths, &c., or who on or before the 25th day of March 1836, shall take and sub-take the oath of allegiance, &c. within six scribe the said oaths, &c. shall be and are thereby indemnified, freed and discharged from and against all penalties and disabilities incurred, or to be incurred, for or by reason of any neglect or omission, previous to the passing of this act, of taking or subscribing the said oaths or assurance, or receiving the sacrament, or making or subscribing the said declaration, or taking or subscribing the said oath, according to the above mentioned acts or any of them, or any other act or acts; and such person or persons is and are, and shall be fully and actually recapacitated and restored to the same state and condition as he, she, or they were in before such neglect or omission, and shall be deemed and adjudged to have duly qualified him, her, or themselves, according to the above mentioned acts and every of them; and that all elections of, and acts done or to be done by any such person or persons, or by authority derived from him, her, or them, are and shall be of the same force and validity as the same or any of them would have been, if such person or persons respectively had taken the said oaths or assurance, and received the sacrament of the Lord's Supper, and made and subscribed the said declarations, and taken and subscribed the said oath, according to the directions of the acts and every or any of them; and that the qualification of such person or persons qualifying themselves in manner and within the time appointed by this act, shall be to all intents and purposes as effectual as if such person or persons had respectively taken the said oaths and assurance and received the sacrament, and made

Campbell shewed cause in the first instance. The object of the indemnity act was to enlarge the time before allowed for receiving the sacrament, taking the oath, &c. required of persons accepting certain offices and employments. The preamble of the statute certainly appears to be limited to such persons as had made default before the act passed, but is capable of receiving a larger construction. The title is material, to shew a different intention in the legislature: that is "An Act to indemnify such Persons in the United Kingdom as have omitted to qualify themselves for Offices and Employments, and for extending the Time limited for those purposes respectively." The enacting part, too, extends to all those who, at or before the passing of the Act, have or shall have omitted, &c. That certainly is future as well as past, and must extend to all that are in default before the 25th of March, 1824.

Per Curiam. There may perhaps be

a The Judges were then, Abbott, C. J., Buyley, Holroyd and Littledale, JJ.