486 Superior Courts: Queen's Bench Practice Court.- Common Pleas. tion of the demand, which the plaintiff consented to abandon. ASSUMPSIT for work and labour, tried defendant on the 5th March applied for further time to plead, and obtained an order for the same on the usual terms, one of which was "to take short notice of trial if necessary." The before the judge of the sheriff's court of the pleas were delivered on the 6th March, and one of them was a payment into court of 127. The plaintiff replied on the 12th March. On the 14th, the plaintiff took out a summons to try before the sheriff, and on the 17th the summons was dismissed, on the ground that as the amount indorsed upon the writ was 311., the case did not come within the Writ of Trials city of London, on Thursday, the 24th of April, 1845, when a verdict was found for the plaintiff, damages 4l. 19s. obtained a rule nisi for a new trial, on the Shee, Serjeant, on a former day in this term, ground of misdirection. to Byles, Serjeant, who showed cause, offered which alone the alleged misdirection applied, give up the verdict as to a sum of 4l. 5s., to and to take his verdict for 14s. Act. The commission-day being the 27th March, the 17th was the last day for giving full notice of trial. On the 18th the plaintiff gave notice of trial, and on the 22nd the de-mitted that the court had no power to compel Shee, Serjeant, in support of his rule, subfendant's attorney gave notice that the notice him to consent to a verdict different from that of trial would not be accepted. The plaintiff's which the jury had found, and that, there being attorney thereupon took out a summons, calling upon the defendant to show cause why he an admitted misdirection, he was entitled to a new trial as matter of right. The should not accept the notice of trial. summons was heard before Rolfe, B., and dismissed, whereupon the plaintiff on the 26th March served a notice to the effect, that he should proceed upon the notice of trial already given, and go to trial. The cause was entered and called on, and a verdict taken for the plaintiff for 5l., the defendant not appearing. Cur, adv. vult. trial before the judge of the sheriff's court, on Tindal, C. J.-This was a rule for a new the ground of misdirection, and upon no other ground; for, by the rule laid down since this mode of trial has taken place, we cannot consider whether it was against evidence or not, the damages being under 51. Byles, Serjeant, and T. Sanders, showed cause. The defendant was bound to take short related to a separate cause of action amounting Now, the only misdirection being that which notice of trial. The summons to try before to 41. 5s., and the plaintiff's counsel, on showthe sheriff not having been disposed of till late ing cause, consenting to abandon that sum on the 17th March, the state of things contemplated by the order for time to plead arose, and altogether, we think the whole justice of the it became necessary that the defendant should attained by the plaintiff's consenting to reduce case, so far as we can look at it, has been accept short notice of trial, as there was no the damages by the whole sum in respect of longer time to give the full notice. Under the which such misdirection took place. terms of this order the plaintiff is bound to give as long a notice as he reasonably can under the circumstances, and here the circumstances were such that full notice could not be given. B, Andrews, contrà, was stopped by the court. Wightman, J.-I am of opinion that the defendant was not bound to accept this notice. The pleas were delivered on the 6th March, and had it not been for the summons to try before the sheriff there would have been abundant time to give full notice of trial. With respect to that summons, as the plaintiff was bound to know that it was not a case which fell within has no authority to alter the verdict of the had seen the whole of the facts of the case as the Writ of Trial Act, the delay occasioned by it forms no excuse for his not having given such full notice; for if it were, a plaintiff would that, in all cases where there has been a misIt is not the practice, as stated at the bar, always be entitled to deprive a defendant placed direction, a new trial must be granted de jure, under similar terms of the benefit of full notice because a bill of exceptions might have been of trial, by taking out a summons which he tendered; for, where the court can see clearly knew he could not sustain. The rule must be that real and substantial justice has been done Rule absolute, be done without a new trial, the rule Q. B. P. C. T. Thas been refused. See Edmondson v. Machell, 2 T. R. 4. absolute. Hitchens v. Farrow. 1845. Common Pleas. NEW TRIAL.-MISDIRECTION. or may We therefore treat this as a rule drawn up in the alternative; and, as the plaintiff consents that the damages shall be reduced, we make the rule absolute for that purpose, and The court refused to grant a new trial on the discharge it as to the new trial. - Rule accordground of misdirection, where such mis-ingly. direction applied itself exclusively to a por Moor v. Tuckwell, E. T. 1845. Superior Courts: Common Pleas.-Exchequer of Pleas. SHERIFF.- ATTACHMENT FOR DISOBEDI ENCE OF A RULE OF COURT. The sheriff is liable to be attached for disobedience of a rule to return a writ, notwith standing he has returned the writ before the attachment is obtained. Byles, Serjeant, moved to set aside an attachment against the sheriff for not obeying a rule to return a writ; the return having been filed after the day. Manning, Serjeant, appeared to show cause in the first instance. 487 name of reputation. All the older cases show that the conveyance must be made in the true name of the party. I think, however, the commission may issue in the manner prayed; care being taken when it is returned, that it be shown by affidavit that the deed has been properly executed. Fiat. In re Apperton. Easter Term, 1845. Exchequer of Pleas. [Reported by A. P. HURLSTONE, Esq., Barrister-atLaw.] EXECUTION.-SHERIFF.-TRESPASS. A sheriff who, under a fieri facias, seizes a term of years in a dwelling-house, has no right to stay in the house for the purpose of executing an assignment of the term, or delivering possession to the purchaser. Cresswell, J.-By rule of court of Hilary Term, 3 Will. 4, it is ordered, "That in case of a rule of court or judge's order for returning a bailable writ of capias shall expire in vacation, and the sheriff or other officer having the return of such writ shall return cepi corpus thereon, a judge's order may thereupon issue, requiring the sheriff or other officer, within the like number of days after the service of such order, as by the practice of the court is prescribed with respect to rules to bring in the body issued in term, to bring the defendant into court, by forthwith putting in and perfect- TRESPASS for breaking and entering the ing bail above to the action; and if the sheriff plaintiff's dwelling - house, and seizing his or other officer shall not duly obey such order, goods. Where a term of years is levied upon under a fi. fa., the interest in the term remains in the execution debtor until assignment. and the same shall have been made a rule of The defendant pleaded, amongst other pleas, court in the term next following, it shall not be that a judgment had been obtained against the necessary to serve such rule of court, or to plaintiff, upon which a writ of fieri facias issued, make any fresh demand thereon, but an attach-directed to the defendant, who was then ment shall issue forthwith for disobedience of sheriff, by virtue of which writ the defendant, such order, whether bail shall or shall not have as sheriff, seized and took the lease under been put in and perfected in the mean time." which the plaintiff held the said dwellingThe very object of that rule was to prevent the house for a term of ten years; that before the sheriff from setting the judge's order at defiance return of the writ, the defendant sold the until a day before the term. In Foster v. Kirkwell, 4 Dowl. 370, the rule for making the judge's order a rule of court and for the attachment was granted uno flatú. Per curiam.-Rule absolute on payment of costs. Rule accordingly. Bull v. Weston. Easter Term, 1845. plaintiff's interest in the lease, and continued in possession of the dwelling-house for the further execution of the writ, and so committed the alleged trespass. The plaintiff replied, by way of new assignment, that after the defendant sold the lease, he stayed in the dwelling-house for a long time, to wit, ten days. To this new assignment the defendant pleaded, that at the time of committing the ACKNOWLEDGMENT UNDER 3 & 4 WILL. 4, trespass the dwelling-house was not the house of the plaintiff. At the trial, before Pollock, C. B., it appeared that the defendant, as sheriff, had sold by auction the plaintiff's interest in the lease, but no assignment had been made to the purchaser. Under these circumstances, the learned judge directed a verdict for the defendant, and reserved leave for the plaintiff to move to enter a verdict for him. A rule nisi having been obtained, Jervis and Kennedy showed cause. - No assignment of the lease having been made, the sheriff was entitled to remain on the premises in order to deliver possession to the purchaser. Where the execution is against a landlord, the sheriff would not be justified in turning the tenant out of possession; but it is different where the execution debtor is himself in possession. Per Buller, C. J., in Taylor v. Cole, 3 T. R. 298. A lease for years is a chattel 488 Superior Courts: Exchequer of Pleas.-The Editor's Letter Box. interest, and by analogy to the case of goods, property has been sold. As against the sheriff, the property in the owner is divested by the the plaintiff must be considered the owner. seizure of the sheriff. When, therefore, the sheriff sold this lease, the property in the house was taken out of the owner and vested in the Rule absolute. Playfair v. Musgrove. Exchequer. Trinity sheriff. A tenant who remains in possession Term, 27th May, 1845. THE EDITOR'S LETTER BOX. Humfrey, in support of the rule, was stopped by the court. Pollock, C. B.-The rule must be absolute. It is immaterial whether the word "sold" in the plea means an actual transfer by assignment, or a mere inchoate act by putting up the premises at a sale. If the sale is perfected by assignment to the purchaser, the sheriff is functus officio, and has no right to stay in the house; if, on the other hand, the sale is not complete by assignment, the property in the house remains in the plaintiff. Alderson, B.-The plaintiff complains that the sheriff remained in the house an unreason able time, and after he sold the property. The sheriff says, “it was not the plaintiff's house." If there was an assignment of the house by the sheriff to the purchaser, the sheriff should justify under the purchaser; if there was no assignment, the property in the house remains in the plaintiff. Rolfe, B.—The first question is, what is the meaning of the word "sold"? In law there can be no sale of a chattel real, unless by an instrument under seal. The word "sold" must therefore be construed in the sense which the law adopts, namely, a complete bargain and sale. The defendant, therefore, having perfected the sale, the plaintiff says that he afterwards remained on the premises an unreasonable time. The defendant says, in reply, that the premises were not the plaintiff's. In my opinion that plea is not made out. If there had been no goods in the dwelling-house, the sheriff would not have been justified in entering for the mere purpose of selling the lease. Platt, B.-Unless the sheriff can say, "Because I have sold this lease, and have not assigned it, I have a right to go upon the pre THE solicitor in the cause of Anderson v. Slater, reported in the Legal Observer in its two stages in the numbers for 16th and 30th Aug., and in the Jurist on the 4th Oct., has sent us the following statement : "In the placitum to this case there appears the nature of the objection taken, and the to be a slight mis-statement of the facts, and of judge's ruling upon it. The error consists in its not appearing that the cestuis que trust under the the suit, (which was really the case,) and that the settlement had been made parties defendants to bill contained the usual statement of their absence from the jurisdiction, and prayed in the ordinary manner process against them upon their coming within it, and that upon the authority mainly, it is apprehended, of Brown v. Blount, the ViceChancellor Bruce decided, that notwithstanding their absence from the jurisdiction, they ought of the court, under 4 & 5 Wm. 4, c. 82, and to have been actually served with the process accordingly gave liberty to amend by praying process against them absolutely, in order to ground the service to be effected and the motion, which was afterwards made and granted on the following 23rd July, pursuant to that statute and the previous one of 2 Wm. 4, c. 33, direct the service of a subpoena and of a copy for the necessary order under those acts to of the prayer of the bill out of the jurisdiction; on which last occasion, the judge refused to express any opinion upon the validity of such trust, or as to the construction of the two the infant defendant cestuis que service upon statutes." J. M. is informed, that the "Civil Actions " Bill, one of Lord Brougham's nine bills, which was printed in our number for 21st June, was not passed. This no doubt will form one of a renewed batch for the next session. The letter relating to an advertising attorney at Birmingham offering to recover debts at 25. in the pound, shall appear next week. We are obliged to "An Old Subscriber," mises," the sheriff is as much a trespasser as and to a correspondent at Rochester, for their any third person who had no title whatever to communications; but there is no inaccuracy be there. The sheriff can acquire no right by in our statement of the lectures on the Real reason of his having been on the premises before and sold the lease. Perhaps he might have a right to enter for the purpose of taking the lease, but he can have no right to stay there. If the mere fact of having sold the lease, but not assigned it, gave him any title, he might, by deferring the assignment, always remain in possession of the house, though the Property Act. A feoffment cannot require a lease for a year stamp, though, besides the deed stamp, it must have an ad valorem duty,but which in small purchases still effects a saving. The remark of the lecturer, therefore, seems well founded. The illegal conduct of share brokers shall be again noticed. The Legal Observer, OR, JOURNAL OF JURISPRUDENCE. SATURDAY, OCTOBER 25, 1845. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. NOTES ON THE CRIMINAL LAW of the several remaining acts to which we AND MISCELLANEOUS ACTS OF THE LAST SESSION. refer:- GAMES AND WAGERS. 8 & 9 Vict. c. 109. IN proceeding to close the present vo- The laws against unlawful gaming are lume, it will be convenient to our readers stated in the preamble to have been found to take a short review of the statutes of of no avail to prevent the mischiefs which the last session which relate to the Crimi- arise therefrom, and apply to sundry games nal law, and some subjects which could of skill from which the like mischiefs car not be included in our dissertations on the not arise; the present act, therefore, reacts which effect alterations in the law of peals so much of 33 H. 8, c. 9, as relates real Property, or in the administration of to games of skill, such as bowling, coyting, justice in the Superior courts. Several of tennis, or the like, and the using bows and these criminal law and miscellaneous acts arrows. we have already printed, and others will be found in the present number. Doubts had arisen whether houses, alleged to be open for the use of subscriAssisted in our labours by several bers only, or not open to all persons, were learned contributors in the different de- to be deemed common gaming houses. partments of the profession, we have, By the 2nd section it is enacted, that it during the last two or three months, shall be sufficient in support of an indictdeemed it one of the most useful occupa ment, to prove that such house is kept or tions of our limited space, to devote a used for playing any unlawful game, and considerable part of it to a full statement that a bank is kept by one or more players of the acts affecting the law, of which so exclusively of the others, or that the many were passed just at the end of the chances of any game are not alike favoursession, and to accompany them with such able to all the players; and by the 5th analyses and commentaries as appeared section, proof of gaming for money or requisite. Our readers, therefore, who wager is rendered unnecessary. The 8th have not leisure to form their own con- section sets out what shall be deemed clusions on the effect of the enactments, evidence of gaming, namely, the finding will at least have their time saved by an cards, dice, balls, counters, or tables used intelligible abstract or summary, whilst in any unlawful game, until the contrary the acts themselves are at hand whenever shall be made to appear. a reference to them is desired. Large powers are given by sections The following are the objects and scope 6 & 7 to commissioners of police, to direct D D 490 Notes on the Criminal Law and Miscellaneous Acts of the Last Session. the police officers forcibly to enter sus-, at p. 395, ante, is intended to make propected gaming houses and seize all instru- vision for staying the execution of judgments of gaming, and take into custody ment upon prosecution for misdemeanor, all persons found therein. while a writ of error is depending to reverse such judgment. The penalties imposed on the keepers of gaming houses, and all persons in any manner conducting the business thereof, is 1007., or six months' imprisonment, with or without hard labour. (s. 4.) An indictment may be preferred, notwithstanding this enactment; but if summarily convicted, the party is not liable to be indicted for the same offence. (s. 4.) And by the 20th section an appeal is allowed to the quarter sessions. It is therefore by the 1st section enacted, that where a writ of error has been obtained, execution or judgment for misdemeanors shall be stayed or suspended until such writ of error shall be finally determined; and if the defendant be imprisoned, or a fine levied, he shall be discharged, and receive back the money levied; provided the defendant give bail to prosecute the writ of error and render himself according to the judgment. Cheating at play is by the 17th section to be punished as obtaining money by false On a certificate of the recognizance pretences; and it is enacted, by the 18th having been duly filed with the clerk of section, that all contracts by way of the crown, the defendant is to be entitled gaming or wagering shall be void, and to his discharge. (s. 2.) wagers shall not be recoverable at law. Actions and informations now pending are to be discontinued on payment of costs. (s. 16.) The magistrates are authorized to grant billiard licenses under the regulations prescribed by the act, ss. 10-14. The clauses 18 and 19, introduced into this act for the abolition of actions and suits relating to wagers, and to feigned issues from courts of equity, have been commented on in a former article,-see p. 389, ante; and the act will be found, verbatim, at p. 455, ante. FEES IN CRIMINAL PROCEEDINGS. 8 & 9 Vict. c. 114. pre The 3rd section provides, that the time of imprisonment which has been adjudged shall be reckoned from the time of actual custody. It is also enacted, that if a fine shall be received back under this act, and the judgment be affirmed, the defendant shall not be discharged until the fine be again paid. (s. 4.) The writ of error, however, may be quashed in case of delay or neglect in its prosecution. (s. 5.) JEWISH DISABILITIES. 8 & 9 Vict. c. 52. This act, for the relief of persons of the The 55 Geo. 3, c. 50, abolished gaol Jewish religion elected to municipal fees and other fees connected with gaols; offices, may be classed among the criminal but doubts have been entertained as to the law acts, since it repeals a disqualification extent and meaning of the act. The which was of the nature of a penal enactsent act therefore provides, that the 55 ment. We have stated the provisions of Geo. 3, c. 50, respecting the discharge of the act at p. 498, post, under which perprisoners without payment of any fee, shall sons of the Jewish religion may make and extend to all persons charged with felony, subscribe the declaration set forth in the or as an accessory, or for a misdemeanor, act within one month before or upon adagainst whom no bill shall be found by the mission to the office of mayor, alderman, grand jury, or who shall on trial be ac- recorder, town clerk, or any other muniquitted, or discharged for want of prose- cipal office. cution. And no fees for appearance, pleading, or recording appearance or plea, or discharging recognizance, shall be taken from such persons. The fees payable to clerks of assize, clerks of the peace, clerks of the court, or their deputies, are by the second section directed to cease. See the act, verbatim, p. 417, ante. MALICIOUS INJURY TO WORKS OF 8 & 9 Vict. C. 44. tion of a valuable work of art in the In consequence of the recent destruc. British Museum, for which there appeared no adequate power of punishment over the offender, this act has been passed to provide for the better protection of works of art, and of scientific and literary collections, This act, which will be found, verbatim, and also of public statues and monuments. BAIL IN ERROR ON MISDEMEANORS. 8 & 9 Vict. c. 68. |