In answer to this motion, the affidavit of the plaintiff's attorney shewed that the cause was made a remanet by consent to the sittings after Michaelmas Term 1844, when the cause was not tried, on account of the absence of certain material witnesses, who resided abroad. That a rule was granted for a commission to examine these witnesses on the part of the plaintiff, in Trinity Term, and also a Judge's order in the same Term, on the 4th of July, in which was contained the usual proviso, that the trial of the cause should be postponed till the return of the commissioners; and that a commission issued to Calais, and was executed in the presence of the defendants' commissioners and agents, and was returned on the 17th of October last; and that another commission also issued to Paris, and was not yet returned, owing to a delay which had occurred in examining the witnesses under the other commission. That on the 4th of July, 1845, two Judge's orders, to which the plaintiff had consented, had been obtained by the defendants, authorizing them to issue one commission to examine witnesses at Paris, and another to examine witnesses at Calais; with a proviso that the trial of the cause be postponed until the return of the first commission; but that the defendants had taken no further steps to issue these commissions.

Bovill shewed cause. The case of Gardner v. Moses (a) shews that the absence of material witnesses, and their return not being immediately expected, is a sufficient excuse for the plaintiff's not proceeding to trial; and that therefore he is entitled to discharge a rule for judgment as in case of a nonsuit, without a peremptory undertaking. The defendants never were entitled in the present case to a peremptory undertaking, as the plaintiff's affidavit shews that the record was only withdrawn on account of the absence of necessary and material witnesses; and now that

(a) 1 Taunt. 118.

1845.

BORDIER

v.

BARNETT and Others.

1845.

BORDIER

v.

BARNETT and Others.

a commission is pending to examine witnesses, the plaintiff could not go to trial. The defendants have given no notice of the abandonment of the Judge's orders obtained by them for commissions to examine their witnesses; and, till those commissions are returned, the plaintiff is forbidden, by the terms of the orders, to go to trial. He referred to Doe d. Stanley v. Towgood (a).

Bramwell, in support of the rule. The defendants were entitled in Hilary or Easter Terms last to the present motion, and they have a right now to proceed on the default then existing. The terms imposing a stay of trial in the cause do not extend to a stay of proceedings. The case of Spurr v. Rayson (b) is an authority in favour of the defendants. The marginal note at first sight seems against them; but the facts of the case are in favour of the view submitted. There a defendant, in a situation to obtain a rule absolute for a nonsuit, agreed to refer the case, and the reference afterwards going off, it was held that the defendant was remitted back to his right from the prior default, to insist on a peremptory undertaking.

PATTESON, J.-That case is also reported in 7 Dowl. 467, and with some little difference. There Parke, B., seems to have considered that the defendant had waived his right to insist on a breach of the peremptory undertaking, by submitting to an award; and that the parties were restored to the same situation as when the peremptory undertaking was given; and a complete default having at that time been made, the defendant was entitled to a fresh peremptory undertaking. Here the case is different, as no motion for judgment as in case of a nonsuit has been made until after a commission to examine witnesses has issued, which directs that the trial shall not be proceeded with till the return of the commission. I

(a) 2 Dowl. 404.

(b) 5 M. & W. 339; S. C. nom. Spurr v. Rayson, 7 Dowl. 467.

1845.

BORDIER

v.

therefore think that the defendants have waived any right they might have had by a prior default, and that, consequently, the present rule must be discharged. As, however, the case cited may have been thought to be an authority, and Others. it will be discharged, without costs.

Rule discharged, without costs.

BARNETT

In re FELL.

The return to

a habeas corpus

to bring up
the body of
an alleged
lunatic, stated

A WRIT of habeas corpus had been obtained, directed to Noel Thomas Smith, Esq., doctor of medicine, keeper or proprietor of the Newcastle-upon-Tyne lunatic asylum, and to the superintendent of the said asylum, commanding them to bring up the body of Robert Fell, being in their custody, "together with the day and cause of his being in pursuance

taken and detained."

The return was in the following terms:

that, "on, &c.,

under the
authority and

of the act of
Parliament,"
&c. (2 & 3
Wm. 4, c. 107,)
"R. F. in the
said writ
named was
committed

under our
custody, and
was received
tained in the

into and de

We, Noel Thomas Smith, Esq., doctor of medicine, keeper or proprietor of the Newcastle-upon-Tyne lunatic asylum, and Donald Macintosh, doctor of medicine, superintendent of the said asylum, certify to the right honorable Thomas, Lord Denman, her Majesty's Chief Justice named in the writ annexed to this Schedule, that before the coming of the said writ to us, to wit, on the 17th day of February, in the sixth year of the reign of her Majesty Queen Victoria, and in Newcastle the year of our Lord, 1843, and under the authority, and in pursuance of the act of Parliament passed in the second and third years of the reign of his Majesty King William the Fourth, intituled, "An Act

Asylum," &c., and that "on the day and year aforesaid," an order and

Lunatic

medical certificates were received, which were as follow: It then set out the order for the reception of the lunatic, with the signature of the patient himself at the foot of it, instead of that of his wife, who was the party named in it as giving the order, and who had also signed the order in a different place; and also medical certificates. It likewise set out a subsequent order under the 8 & 9 Vict. c. 100, and medical certificates, and justified the detainer of the lunatic under the latter order.

Held, that it sufficiently appeared, on the face of the return, that the first order and medical certificates were received at the same time with the lunatic; that under the 2 & 3 Wm. 4, c. 107, the first order was a sufficient justification of the detainer; that it was not necessary to obtain an order for his detainer under the 8 & 9 Vict. c. 100; and that the return need not shew who delivered the first order.

Semble, that a medical certificate under the 8 & 9 Vict. c. 100, s. 46, should state specific facts on which the opinion of insanity has been formed; and that therefore the statement that the patient has "a general suspicion of the motives of every person" is insufficient.

1845.

In re FELL.

for regulating for three years, and from thence until the end of the then next session of Parliament, the care and treatment of insane persons in England," Robert Fell, in the said writ named, was committed under our custody, and was received into, and detained in the Newcastle-upon-Tyne lunatic asylum, the said asylum being a house licensed for the reception of insane persons in that part of the United Kingdom called England, pursuant to the said act of Parliament; and that on the day and year aforesaid we received an order, under the hand of Maria Fell, the wife of the said Robert Fell, together with medical certificates of two surgeons, in the manner and form directed by the said act, which said order and medical certificates were in the words and figures following, that is to say:

"Statement and Order to be annexed to the medical certificates authorizing the reception of an insane person.

The patient's true Christian name and surname at full length

Robert Fell.

47.

Married.
None.

Cumberland Row,
Newcastle.

Newcastle asy

lum.

Upon the authority of the above statement, and the annexed medical certificates, I request you will receive the said Robert Fell as a patient into your house.

"Medical Certificates.

"I, the undersigned, hereby certify, that I separately visited and personally examined Robert Fell, the person named in the annexed statement and order, on the 17th day of February, 1843, and that the said Robert Fell is of unsound mind, and a proper person to be confined.

"I, the undersigned, hereby certify, that I separately visited and personally examined Robert Fell, the person named in the annexed statement and order, on the 17th of February, 1843, and that the said Robert Fell is of unsound mind, and a proper person to be confined. Name Wm. Hardcastle.

Physician, Surgeon, or Apothecary Surgeon.

1845.

In re

FELL.

And we further certify, that on the 22nd day of November, in the ninth year of the reign of her said Majesty Queen Victoria, and in the year of our Lord, 1845, and under the authority, and by virtue of an act of Parliament passed in the eighth and ninth years of the reign of her said Majesty Queen Victoria, intituled, "An Act for the regulation of the care and treatment of Lunatics," an order and two medical certificates, in the form prescribed by the last mentioned act, were delivered to us; which last mentioned order and medical certificates were in the words and figures following, that is to say:

"Order for the reception of a private patient.
"Schedule B.

"I, the undersigned, hereby request you to receive Robert Fell, a person of unsound mind, as a patient into your house. Subjoined is a statement respecting the said Robert Fell.

Degree of relationship (if any,) or other circum-} Wife.

stances of connection with the patient

Name of patient, with Christian name at length Robert Fell.

Sex and age

Married, single, or widowed

Male-50.

Married.

Condition of life and previous occupation (if any) No occupation.

Previous place of abode

-{Cumberland Row,

Newcastle.