« ZurückWeiter »
the law in altering the form, has not altered the necessity of the declaration being taken.
Cur, adv, vult.
In re BULL
WIGHTMAN, J.— I think that I must treat this case as if upon a return to a writ of habeas corpus; and as I am of opinion that the second warrant is good, it becomes unnecessary to consider the sufficiency of the first. The second warrant refers to the first warrant and the examinations, "whereof copies are set forth in the within warrant." It is said that it is invalid, because it does not state on the face of it that the bankrupt has made and signed a declaration pursuant to the statute 8 & 9 Vict. c. 48; but I think it is not necessary that it should do so, as by reference to the first warrant it appears that the bankrupt had already made and signed such a declaration; and I am of opinion that it was not necessary that he should do so on each successive examination. I am fortified in this view by the terms of the statute, which after enacting, by sect. 1, that a bankrupt “ shall and may be hereafter examined before such commissioners without being sworn, but after making and signing the declaration contained in the schedule hereunto annexed," provides, by sect. 2, “that if any person so to be examined shall, in the course of the examination, wilfully make any false statement,” he shall be guilty of a misdemeanor. I think the statute plainly contemplates an examination which may last more than one meeting. It is very similar to what takes place at arbitrations, where, although the witness is only sworn once, the case may, and often does, last several days; and were a witness, under such circumstances, to make a false statement, there is no doubt that he could be indicted for perjury. The rule must, therefore, be discharged.
Bedwell, v. COULSTRING. THIS was a rule calling upon the plaintiff to shew cause A plaintiff why he should not be dispaupered, and why he should not suing in forma
pauperis, and pay the costs of the day for not proceeding to trial. It
himself appeared from the affidavit on which the rule was obtained, vexatiously,
may be called that the plaintiff, who sued in formâ pauperis, had twice upon by the given separate notices of trial, and had countermanded the
shew cause first, and withdrawn the record on the second occasion, why he should
not pay the and had given a fresh notice for the sittings in this Term, costs of the
day for not which had not expired at the time the rule was obtained. Di The plaintiff, in person, shewed cause upon an affidavit, to trial, as
Vily well as be from which it appeared he had again made default by dispaupered. withdrawing the record at the sittings in this Term.
T. W. Saunders, in support of the rule.
WIGHTMAN, J. There is no doubt that the plaintiff has conducted himself very vexatiously. The only doubt in my mind is, whether he can be called upon by the same rule to pay the costs of the day, as well as to shew cause why he should not be dispaupered. The Master, however, informs me that he sees no objection to a rule in this shape; and as I think the application is reasonable, under the circumstances, the rule will therefore be absolute.
Doe dem. HAXBY v. PRESTON. On a motion THIS was a motion to set aside an award, which had to set aside an award, the been made by a barrister, to whom the cause and all matCourt will not look at the
ters in difference had been referred, by an order of nisi notes of the
prius, at the York Summer Assizes of 1840. arbitrator.
Addison shewed cause, and was proceeding to read a verified copy of the arbitrator's notes (a), when
Martin (with whom was Rew) objected to his so doing, on the ground that it would be introducing a very inconvenient and novel practice, if such a course were permitted; and infringing in substance, if not in terms, a rule laid down by the Bar, that an arbitrator could not be called upon to make an affidavit of what had taken place before him. Besides here the copy of the notes could not in any way be evidence. He observed, that it was not any wish to exclude the particular notes in this case, that suggested the objection; but the desire to prevent a rule being broken through, and introducing a practice which might be found very inconvenient to the Profession.
Addison said, that the arbitrator was willing to furnish the Court with the original notes themselves.
COLERIDGE, J., however said, that the rule laid down by the gentlemen of the Bar was a very proper one, and that it would certainly be infringing on it, if such notes were to be received.
The point was not further pressed.
(a) They were verified by his clerk.
Doe dem. Tew v. BILLINGHAM. THIS was an action of ejectment in which, on the cause A demand of
costs, pursuant coming on for trial at the Spring Assizes, 1841, for North- to a Master's
allocatur, ampton, the lessor of the plaintiff was nonsuited for want in of the defendant appearing at the trial and confessing a consent
rule, was held lease, entry, and ouster, pursuant to the consent rule. The sufficient for costs were afterwards taxed on the consent rule, and the where the Master's allocatur indorsed thereon for 441. 10s.
affidavit stated that the deponent had
served the Wood now moved for an attachment against the defend- defendant
with a copy of ant for nonpayment of those costs.
the original The affidavit stated that the deponent had served the rule ang
allocatur, at defendant on the 29th of April last “with a true copy of the same time
shewing him the rule and the Master's allocatur thereon, and at the same the original time shewed him the said original rule and allocatur, and lecatur, and
rule and that this deponent then demanded of him the costs allowed had then de.
manded of by the Master upon the said rule;" but that the defendant him the costs
allowed by has not paid the same, or any part thereof, &c.
the Master He submitted, that the affidavit discovered a sufficient up demand to entitle him to this rule. It is true that it does it did not
appear that not shew that the amount demanded was named to the any sum was defendant; but it is stated that the deponent demanded" the costs allowed by the Master upon the said rule, and at the same time shewed the defendant the said rule. This, it is submitted, is equivalent to an allegation that he demanded the exact sum.
WIGHTMAN, J. I think that you are entitled to an attachment.
Eades v. Booth.
(In the full Court.)
THIS was an action for an injury done to the person
US mos infant plaintiff was of too of the plaintiff, who was an infant of the age of twenty tender years to be able to months, by the horse and cart of the defendant running write, the
Court granted against her.
her petition to sue by her father as her prochein ami, on its being for her, in her name.
Spinks stated that a difficulty had occurred as to the signature by the infant of the petition to be permitted to sue by her prochein ami; the infant, from her tender age, not being able to write or to make her mark. It had however been signed by her father for her in the following form :“ Eliza Ann Eades. Signed by me for her, being her father and next friend, George Eades.” He submitted that this was sufficient, and that the Court would make the necessary order. He produced an affidavit of these facts, &c., verifying the father's handwriting.
Fiat (a). (a) See Morgan v. Thorne, 7 M. & W. 400; S. C. 9 Dowl. 226.
SAUNDERS and Another, Assignees v. JONES. Where pro- JUDGMENT, as for want of a plea, had been signed in credings are taken against this action, in breach, as it was alleged, of good faith. It good faith, the party must appeared that after declaration delivered, the defendant's come promptly to set them aside, as in the case of an irregularity. Therefore where a judgment was signed against good faith, of which the defendant had notice on the 6th of April, an application to set it aside on the 20th of the same month was held too late.
Where the plaintiffs had given a fourteen days' notice of a writ of inquiry in an action in which the venue was laid in Middlesex, and afterwards gave a notice of continuance, which was not sufficient if the defendant resided more than forty miles from London: Held, on motion to set aside the execution of the writ of inquiry, on the ground of the insufficiency of the notice of continuance, that the defendant's affidavit was sufficient which described him as “ of Ragland," in the county of Monmouth, and which stated that he had received no other notice of continuance than the one so given, and that Ragland was one hundred and thirty-six miles from London ; although it did not state in positive terms that he resided at Ragland,