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Litigation Practice - From: 1800 To: 1849

This page lists 155 cases, and was prepared on 02 April 2018.

 
Smith v Buchanan (1800) 1 East 6
1800


Litigation Practice
The discharge of a debt or liability by the law of a country other than that in which the debt arises, does not relieve the debtor in any other country.
1 Citers


 
Le Jeune v Sheridan [1802] EngR 20; (1802) Forr 30; (1802) 145 ER 1103 (B)
1802


Litigation Practice

[ Commonlii ]
 
The King v Thornton [1803] EngR 712; (1803) 4 East 294; (1803) 102 ER 843
14 Nov 1803


Litigation Practice

[ Commonlii ]
 
Potter v Brown (1804) 5 East
1804


Litigation Practice

1 Citers


 
Ainslie v Medlicott [1806] EngR 376; (1806) 13 Ves Jun 266; (1806) 33 ER 294 (A)
24 Dec 1806


Litigation Practice

[ Commonlii ]
 
Standing Interrogatories [1812] EngR 39; (1812) 1 C Rob 381; (1812) 165 ER 213
1812


Litigation Practice

[ Commonlii ]
 
Paxton v Douglas (1812) 19 Ves Jun 225
1812

Lord Eldon
Litigation Practice
"In no stage of the proceedings in this court can a party be compelled to answer any question, accusing himself, or any one in a series of questions, that has a tendency to (incriminate . . .) . . . "
1 Citers


 
The Earl of Cholmondeley v Lord Clinton [1813] EngR 513; (1813) 2 Ves & Bea 113; (1813) 35 ER 262
17 Jul 1813


Litigation Practice

1 Cites

1 Citers

[ Commonlii ]
 
Lewis v Harber [1814] EngR 566; (1814) 1 Price 132; (1814) 145 ER 1355 (A)
15 Jul 1814


Litigation Practice

[ Commonlii ]
 
Watson And Wife, Administratrix, and Co of Maxwell v King [1815] EngR 1145; (1815) 4 Camp 272; (1815) 171 ER 87
14 Dec 1815


Litigation Practice
Trover lies for an undivided part of a chattel. A power of attorney, though coupled with an interest, is instantly revoked by the death of the grantor, and an act afterwards bona fide done uuder it, by the grantee, before notice of the death of the grantor, is a nullity. If a plaintiff suing in trover as administrator is so described on the face of the declaration, and makes a profert an curia of the letters of administration, it is unnecessary, on not guilty pleaded, to produce them at the trial, although the cause of action accrued after the death of the intestate. The official letter of the commander of a convoy to the Admiralty, at the end of the voyage, seems good evidence of the facts therein stated respecting the ships under convoy.
1 Citers

[ Commonlii ]
 
Neale v Nevill; Savory v Spooner [1816] EngR 511; (1816) 6 Taunt 565; (1816) 128 ER 1155 (A)
23 May 1816


Litigation Practice

[ Commonlii ]
 
Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton [1816] EngR 865; (1816) 2 Mer 71; (1816) 35 ER 867 (B)
18 Dec 1816


Trusts, Litigation Practice

1 Cites

1 Citers

[ Commonlii ]

 
 The King v Pearson And Another; 19-Dec-1816 - [1816] EngR 870; (1816) 3 Price 288; (1816) 146 ER 264
 
Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others [1816] EngR 880; (1816) 2 Mer 81; (1816) 35 ER 871
24 Dec 1816


Litigation Practice

1 Cites

1 Citers

[ Commonlii ]
 
Odwin v Forbes (1817) Buck 57
1817
PC

Litigation Practice

1 Citers


 
Phillips v Bruce And Others [1817] EngR 309; (1817) 6 M & S 134; (1817) 105 ER 1193 (C)
12 Feb 1817


Litigation Practice
The plaintiff may sign judgment as for want of a plea, if the plea be palpably a sham plea.
[ Commonlii ]
 
Morrison v Arnold [1817] EngR 308; (1817) 19 Ves Jun 670; (1817) 34 ER 664
12 Feb 1817


Litigation Practice

[ Commonlii ]
 
Jones v Taylor And Others [1817] EngR 661; (1817) 2 Madd 181; (1817) 56 ER 302 (A)
25 Jul 1817


Litigation Practice

[ Commonlii ]

 
 Ashford v Thornton; KB 1818 - [1818] EngR 3; (1818) 1 B & A 405; (1818) 106 ER 149
 
MacMurdo v Birch, Mackay, And Laugiion Radgliffe And Another v Same [1818] EngR 233; (1818) 5 Price 522; (1818) 146 ER 682
12 Feb 1818


Litigation Practice
A plaintiff having arrested two of the partners on a quo minus, and proceeded against an absent third by ven. fac. Ad. resp. under which issues, and increased issues, had been levied on the partnership goods - the Court refused, on cause shewn against a rule for that purpose, to set aside the proceedings, and order the money levied to be restored, and the effects to be delivered up, although it was sworn, on the part of the absent defendant, that he was absent on his business of mariner, and not for the purpose of avoiding proceedings. - N. - Such a rule discharged with costs.
[ Commonlii ]
 
Smith v Fromont [1818] EngR 611; (1818) 1 Wils Ch 472; (1818) 37 ER 202 (A)
18 Jul 1818


Litigation Practice, Contract
A. the owner of a stage coach from Bristol to London, sold to B. the profits of it for a part of the road, B. agreeing to supply the coach with horses for that part of the road, and A. for the remainder. B.'s. horses having been taken in execution and advertised for sale, A. provided his own horses to convey the coach along that part of the road comprised in B.'s agreement : and the Court refused a motion for an injunction to restrain him from so doing.
[ Commonlii ]
 
Swann v Sowell (1819) 2 B and Ald 759
1819


Litigation Practice, Limitation
Where a party effectively admits a claim but only subject to his counterclaim which he seeks to set off against the claim, he does not acknowledge the debt for limitation purposes.

 
Kynaston v The East India Company [1819] EngR 368; (1819) 3 Swans 248; (1819) 36 ER 850 (C)
4 May 1819


Landlord and Tenant, Litigation Practice

1 Cites

1 Citers

[ Commonlii ]

 
 Dew, Esq v Parsons, Gent; 11-May-1819 - [1819] EngR 402; (1819) 2 B & A 562; (1819) 106 ER 471
 
Machnaghten v Boehm [1819] EngR 631; (1819) 1 Jac & W 49; (1819) 37 ER 293
20 Aug 1819


Litigation Practice

[ Commonlii ]
 
De La Torre v Bernales [1819] EngR 635; (1819) 4 Madd 396; (1819) 56 ER 751 (B)
1 Nov 1819


Litigation Practice
A Plaintiff moving, as of course, to amend his bill after he has taken exceptions to the answer, waives his exceptions ; he must move specially for liberty to amend, without prejudice to the exception.
[ Commonlii ]
 
Robey v Howard [1819] EngR 782; (1819) 2 Stark 555; (1819) 171 ER 734
21 Dec 1819


Litigation Practice

[ Commonlii ]
 
Charrington v Milner [1820] EngR 22; (1820) Peake 9; (1820) 170 ER 60 (A)
1820


Litigation Practice
In an action against the maker of a promissory note the indorser is a good witness to prove it paid.
[ Commonlii ]
 
Cardale -v Watkins [1820] 5 Madd 18; 56 ER 801
1820

Leach V-C
Litigation Practice
Discovery of documents can only be ordered either within existing proceedings or at most in aid of intended proceedings. Discovery would not be granted for the mere satisfaction of curiosity.
1 Citers


 
Home v Bentinck [1820] EngR 227; (1820) 1 Br & B 514; (1820) 129 ER 821 (A)
10 Feb 1820


Litigation Practice

1 Citers

[ Commonlii ]
 
The King v The Justices of Herefordshire [1820] EngR 359; (1820) 3 B & A 581; (1820) 106 ER 773 (B)
9 May 1820


Litigation Practice
By 49 G 3, c 68, s 5, ten clear days’ notice of the intention to appeal is required.
Held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions.
One Joseph Stinton, having had an order of filiation made on him, as the father of a bastard child, served a notice of appeal to the Quarter Sessions for the county of Hereford, on the morning of the 9th of October. The sessions were holden on the 19th of the same month; and the Court refused to enter on the appeal, being of opinion that the notice was insufficient, the statute 49 G. 3, e. 68, s. 5, requiring that the person aggrieved by such an order should give notice ten clear days before the Quarter Sessions, of his intention to appeal, and the cause and matter thereof. W. E. Taunton having obtained a rule nisi for a mandamus to the justices to receive the Abraham now shewed cause against it, and relied on the words of the statute, which could only be satisfied by a notice wherein there should be ten clear days, exclusive of the day of serving it and the day of holding the sessions.
WE Taunton, contra, contended that the word “clear” meant only complete days ; and referred to the computation of the octave of Saint Hilary, and the quarto die post of the term, to shew that the days of a stated period were in law generally reckoned both inclusively, and that all that the Legislature had in view, in this instance, was to prevent such a computation [582] being used. But the Court were of opinion, that ten clear days meant ten perfect intervening days between the act done and the first day of the sessions, and held, therefore, that the notice was defective ; and they referred to Roberts v. Stacey (13 East, 21).
Rule discharged.
1 Citers

[ Commonlii ]
 
Lewis v Owen (1821) 4 B & Ald 654
1821


Litigation Practice

1 Citers


 
Harber v Rand [1821] EngR 125; (1821) 9 Price 53; (1821) 147 ER 18
1 Feb 1821


Litigation Practice
If Counsel on either side, appear to argue a special case, on the day appointed by the rule for the concilium, and the Counsel for the other party do not attend, the Counsel in attendance will be heard, and the Court will give judgment in the ahsence of the other Counsel. And the Court will not, on any occasion, permit the case to he opened again, for the purpose of giving the Counsel who may have been absent, an opportunity of arguing it : the necessary attendance of Counsel in another Court, considered not to be a sufficient reason for being absent from this Court, on the day appointed for an argument here.
[ Commonlii ]
 
Harber v Rand [1821] EngR 138; (1821) 9 Price 58; (1821) 147 ER 20
5 Feb 1821


Litigation Practice

[ Commonlii ]
 
The Mayor And Burgesses of Derby v Wheeldon [1821] EngR 191; (1821) 9 Price 150; (1821) 147 ER 50 (C)
12 Feb 1821


Litigation Practice
Whether party properly served.
[ Commonlii ]
 
The United Company of Merchants of England, Trading To The East Indies v Roger Kynaston, Esq [1821] EngR 243; (1821) 3 Bligh PC 153; (1821) 4 ER 561
9 Mar 1821
HL
Lord Redesdale
Litigation Practice
The Respondent, an impropriate rector, having by a decree of the Court of Chancery been found to be entitled (under the decree made in pursuance of the act 37 Henry VHI.) to the tithes, according to the value, of warehouses in London, occupied by the Appelant and which never had been rented, the Court has jurisdiction to make an order upon the Appelant to permit inspection, for the purpose of ascertaining the value. Such an order cannot be executed by force, but operates only on the person, as a foundation for process of contempt, and to take the Bill, pro confesso, if necessary.
Lord Redesdale said: "The arguments urged for the Appellants at the Bar are founded upon the supposition that the Court has directed a forcible inspection. This is an erroneous view of the case. The order is to permit; and if the East India Company should refuse to permit inspection, they will be guilty of a contempt of the Court . . It is an order operating on the person requiring the defendants to permit inspection, not giving authority of force, or to break open the doors of their warehouse".
1 Cites

1 Citers

[ Commonlii ]
 
Candler v Partington [1821] EngR 351; (1821) 6 Madd 102; (1821) 56 ER 1031 (A)
19 May 1821


Litigation Practice

[ Commonlii ]
 
Harber v Rand [1821] EngR 371; (1821) 9 Price 336; (1821) 147 ER 111
25 May 1821


Litigation Practice

[ Commonlii ]
 
Thomson v Austen (1823) LJ KB (OS) 99; (1823) 2 Dowl. & Ry. 358
1823

Bayley J
Litigation Practice
Evidence of an admitted cross-debt was in part excluded: "We also think that the evidence which was refused was not indicative of any intention to make a compromise, for if it had been so, he would have offered some concession, some sacrifice for the sake of peace; but he simply wishes the matter ended, and then makes an unqualified admission".
1 Citers


 
Richardson v Fisher 130 ER 59; (1823) 1 Bing 145; [1823] EngR 355; (1823) 1 Bing 145; (1823) 130 ER 59 (A)
5 Feb 1823


Evidence, Litigation Practice

1 Citers

[ Commonlii ]
 
Green v Weaver (1827) 1 Sim 404; (1827) 57 ER 630
1827

Sir Anthony Hart, Vice-Chancellor
Litigation Practice
The plaintiff instructed the defendants, a firm of wool-brokers in the City of London, to buy foreign wool for him, in the belief that all the partners in the firm were duly qualified to act as brokers. It was of some importance to him to know who the sellers were of the wool which the defendants claimed to have bought for him, and he came to suspect that the information given him by the defendants as to the sellers was false and that the transactions were fraudulent. He therefore sought discovery of their dealings for him against the defendants. In fact, however, two of the three partners in the defendant firm were not qualified to act as brokers, as they had not entered into appropriate bonds with the City authorities, and if they were shown to have acted as brokers without being duly qualified they would be liable to penalties by statutes. The defendants therefore refused to give discovery or any further information, and relied on the privilege against self-incrimination. Held: The court considered the rule against self-incrimination. A man by contract or the effect of his own acts may exclude himself from the benefit of the privilege against self-incrimination. The court equated, in equity, the moral obligation of a confidential agent to give discovery, to an obligation resulting from a stipulation by deed. A justification of the decision on moral grounds, was that the plaintiff as employer had no reason to suspect, and no means of detecting the misrepresentation of the fact whether the defendants were or were not duly constituted legal brokers.
1 Citers


 
Quelin v Moisson (1828) 1 Knapp 265
1828


Litigation Practice

1 Citers


 
Phillips v Allan (1828) 8 B & C 477
1828


Litigation Practice

1 Citers


 
Small And Others v Attwood And Others [1828] EngR 545; (1828) 2 Y & J 512; (1828) 148 ER 1021 (B)
3 May 1828


Litigation Practice
Amendment of pleadings
1 Cites

1 Citers

[ Commonlii ]
 
Williams v Protheroe [1829] EngR 318; (1829) 5 Bing 309; (1829) 130 ER 1080
29 Jan 1829
CCP

Litigation Practice, Landlord and Tenant
An agreement between the seller and purchaser of an estate, that the purchaser, bearing the expence of certain suits commenced by the seller against an occupier for arrears of rent, should have the rent to be so recovered, and any sum that could be recovered for dilapidations, and that the purchaser, bearing the expences, might use the seller's name in actions he might think fit to commence against the occupier for arrears of rent or dilapidations, is not void, as savouring of champerty.
. . from the Court of King's Bench. The declaration stated that, whereas on the 14th day of December, in the year 1823, at Chepstow, in the county of Monmouth, by a certain agreement then and there made between the said Edmund Williams, the Defendant, of the one part, and the said Thomas Protheroe, the Plaintiff, of the other part, the date whereof was the day and year aforesaid, the said Edmund for himself, his heirs, executors, and administrators, in consideration of the sum of 1300 l. to be paid to him or them, on the 2d day of February then next ensuing the date thereof, by the said Thomas, did thereby agree with the said Thomas, his heirs and assigns, to sell and convey to him the said Thomas, his heirs and assigns for ever, on the said 2d day of February then next, a certain freehold messuage or dwelling-house, and certain customary messuages, lauds, &c. in the said agreement particularly mentioned and described, and the said Thomas, for himself, his heirs, executors, and administrators, did thereby agree with the said Edmund, his heirs, executors, and administrators, to purchase the said freehold and customary messuages, lands, and hereditaments thereinbefore mentioned and described, and to pay the said Edmund, his executors and administrators, for the same, the sum, of 1300 l. on the said 2d day of February then next, an having the same conveyed and surrendered to him the said Thomas, his heirs and assign*, by the said Edmund or his heirs,-and it was further agreed that the [310] said Thomas should bear all the expence, costs, and charges of the convey¡ance and surrender to him of the said freehold and customary hereditaments and premises, and of any fines, recoveries, or other assurances necessary to convey and surrender the same respectively, and it was further agreed by and between the said parties thereto, that the said Edmund, his heirs, executors, and administrators, should receive the rents and pay all outgoings, in respect of the said freehold hereditaments, up to the said 2d day of February then next; and, after reciting that proceedings, both at law and in equity, were then pending between the said Edmund and Sir Henry Protheroe, in which proceedings at law the said Edmund was Plaintiff, and sought to recover from the said Sir H. Protheroe six years' rent, at 801. per annum, due the 2d day of February then last, for and in respect of the said customary hereditaments and premises, under and by virtue of a certain agreement made between the said Edmund and the said Sir H. Protheroe, it was by the said agreement, further agreed and declared by and between the said parties thereto, that the said Thomas, his heirs, executors, and administrators, should have and receive the said arrears of rent so claimed to be due from the said Sir H. Protheroe, for his and their own use and benefit, and also the said rent due from the said Sir H. Protheroe, or to become due for the current year, ending on the 2d day of February then next; and, also, that the said Thomas, his heirs, executors, and administrators, should have and be entitled to all sums of money that could be recovered from the said Sir H. Protheroe, for and in respect of dilapidations and wants of repair of and in the said customary hereditaments and premises; and it was thereby further agreed, that the said Thomas, his heirs, executors, and administrators, should be at full liberty to use the name or names o/ the said Edmund, his heirs, executors, and administrators, in the proceedings at law and in equity then pending between the said Edmund and the said Sir H. Protheroe ; and, also, in any other action or actions, suit or suits, which he, the said Thomas, his heirs, executors, and administrators, should think proper to commence and prosecute against the said Sir H. Protheroe for the recovery of the said arrears of rent, or of the current year's rent, or for dilapidations, or wants of repair of and in the said customary hereditaments and premises; and it was thereby further agreed, that the said Thomas should bear, pay, and discharge the costs of the said Edmund in the proceedings then pending, and indemnify him, the said Edmund, his heirs, executors, and administrators, of, from, and against all costs and charges of any future proceedings that might be had by the said Thomas, in the name of the said Edmund, his heirs, executors, and administrators, against the said Sir H. Protheroe ; as by the said agreement, reference being thereunto had, fully appears; and the said agreement being made as aforesaid, afterwards, to wit, on, &c., at, &c., it was, at the special instance and request of the said Edmund, agreed by and between the said Thomas and the said Edmund, that the price or money to be paid by the said Thomas to the said Edmund for the said freehold estate and tenement in the said articles of agreement first mentioned, should be a certain sum of money, to wit, the sum of 800 l, part of the said sum of 1300 l, and that the price or sum to be paid by the said Thomas to the said Edmund, for the said customary tenements and premises in the and agreement also mentioned, should be the residue of the said sum of 1300 l, to wit, the sum of 800 l, subject to the terms in the said agreement specified; and thereupon, afterwards, to wit, on, &c., at, &c., in consideration thereof, and that the and Thomas, at the like special instance and request of the said Edmund, had then and there undertaken and faithfully promised the said Edmund, to perform and fulfil all things in the said agreement contained, on his, the said Thomas's, part to be performed and fulfilled as such purchaser as aforesaid, he, the said Edmund, undertook, and then and there faithfully promised the said Thomas, to perform and fulfil all things in the said agreement contained, on his, the said Edmund's, part and behalf to be performed and fulfilled as such vendor as aforesaid; and although the and Edmund, in part performance of the said agreement, and of his said promise and undertaking, did afterwards, to wit, on, &c., at, &c., sell and convey the said freehold tenements and premises in the said agreement first mentioned to the said Thomas, and his heirs and assigns, at and for the said sum of 500 l., and the said Thomas then and there paid the sum of 500 l. to the said Edmund, upon the terms aforesaid; and although the said Thomas was afterwards, to wit, on, &c., and from thence hitherto leady and willing to accept, receive, and take of and from the said Edmund, a surrender to him, the said Thomas, of the said customary tenements and premises in the said agreement mentioned, at and for the said sum of 800 l., upon the terms aforesaid, and to bear all the expences, costs, and charges of such surrender, and all necessary assurances in that behalf, and to pay the said sum of 800 l., and complete the said purchase on his part and behalf in all respects upon the terms aforesaid, to wit, at, &c.; and although the and Thomas afterwards, to wit, on, &c., and often times afterwards, offered to the said Edmund to complete the said purchase of the said customary tenements and premises, with the appurtenances, upon the terms aforesaid, and requested the said Edmund to sell and surrender to him, the said Thomas, the said customary tenements and premises, upon the terms aforesaid, to wit, at, &c., yet the said Edmund, not regarding the said agreement, nor his said promise and undertaking, but contriving, &c., did not, nor would, on the said 2d day of February in the year last aforesaid, or at any other time, surrender or convey to the said Thomas the said customary tenements and premises in the said agreement in that behalf mentioned, or any part thereof, upon the terms aforesaid, but the said Edmund wrongfully neglected and refused ever to surrender the said customary tenements and premises to the said Thomas, according to the said agreement, and wrongfully discharged the said Thomas from any further performance by him of the said agreement on his part, contrary to the agreement, and the said promise and undertaking of the said Edmund, to wit, at, &c.
Then followed a statement of special damage.
There were several other counts. A general verdict was given for the Plaintiff below, upon which final judgment was entered up, without opposition in the court below.
Curwood for the Plaintiff in error. The first count discloses an illegal agreement, and the verdict and damages being general, the judgment below cannot stand. Holt v. Scholefield (6 T.R. 691).
The agreement presents a clear case of champerty. The statute of 3 Ed. 1, c. 25, against champerty enacts, that "No officer of the king by himself, nor by other, shall maintain pleas, suit, or matters depending in the king's courts, for lands, tenements, or other things for to have part thereof, or other profit, by covenant made; and he that so doth shall be punished at the king's pleasure."
The subsequent statute of 28 Ed. 3, c. 11, is as follows: "And further, because the king hath heretofore ordained by statute that none of his officers shall take any plea or champerty, and by that statute other than officers were not bounden before this time, the king willeth that no officer nor any other, for to have part of the thing in plea, shall take upon him any businesses that are in suit; nor none upon any such covenant shall give up his right to another: and if any so do, and he be attainted thereof, the taker shall forfeit unto the king so much of his lands or goods as doth amount to the value of the part that he hath purchased by such undertaking: and for such attainder whosoever will shall be received to sue for the king before the justices, before whom the plea shall have been; and the judgment shall be given by them. But it is not to be understood hereby that one may not have counsel of pleaders or of learned men (for his fee), or of his relations or neighbours,"
Although the first of these statutes applies in terms to the king's officers only, yet it is extended by the second : both shew the sense of the legislature with regard to the offences of maintenance and champerty, and have never in application been considered as limited to the king's officers.
Then, champerty is an offence punishable at common law, and an agreement which stipulates for the commission of an offence cannot be supported.
In Chesman v, Nainby (2 Ld. Raym. 1459) it was expressly holden, that "if a bond is given with condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond will be void." Norton Simms (Hob. 14). 1 Wms. Saund. 66 a. n. (1). Here the stipulation that the Plaintiff below shall purchase the suit commenced by the Defendant below goes to the whole agreement, and renders it void.
The Court stopped the counsel for the Defendant in error, and holding that there was no champerty in an agreement to enable the bona fide purchaser of an estate to recover for rent due, or injuries done to it previously to the purchase, more especially where such purchaser was not an officer of the king, the judgment of the court below was Affirmed.
1 Cites

[ Commonlii ]
 
Browne v Dunn [1829] EngR 422; (1829) 3 Sim 23; (1829) 57 ER 909
28 Mar 1829


Litigation Practice
An application to amend, under the 13th Order, must be supported by a joint affidavit of the Plaintiff arid solicitor.
[ Commonlii ]

 
 Henley v The Mayor And Corporation Of Lyme Regis; HL 27-Jun-1829 - [1829] EngR 554; (1829) 5 Bing 100; (1829) 130 ER 1218
 
Wagstaff v Bryan [1829] EngR 716; (1829) 1 Russ & My 28; (1829) 39 ER 11
9 Nov 1829


Litigation Practice

[ Commonlii ]
 
Charrington v Laing [1829] EngR 746; (1829) 6 Bing 242; (1829) 130 ER 1273
17 Nov 1829


Litigation Practice

[ Commonlii ]
 
Vaughan And Dowle, Assignees of Jones, A Bankrupt, v Wilkins, Esq, Maybery, And Voss [1830] EngR 256; (1830) 1 B & Ad 370; (1830) 109 ER 824
1830


Litigation Practice
A sheriff having seized goods under a fi fa received notice that a docket had been struck against the owner; he nevertheless made a bill of sale to the execution creditor, who sold them to V, another creditor. A commission of bankrupt was issued againt the defendant in the execution and some time after the last mentioned sale, V became one of the assignees. Part of the property had remained on the bankrupt's premises (where he lived) from the time of the execution part had been removed to a place of safety in the neighbourhood before the sale to V. No injury had been done to it. The assignees brought trover against the sheriff, and obtained a verdict for the full value of the property. On motion to reduce the damages, on the ground that the assignees had got possession of the goods : Held, that the assignees were not bound to take them out of the possession of V., who, in his individual character, had purchased before the assignment; that the case did not shew them to have done so; and that they might recover the full value from the sheriff.
[ Commonlii ]
 
Commelin v Thompson [1831] EngR 37; (1831) 1 Cr & J 461; (1831) 148 ER 1504 (A)
1831


Litigation Practice

[ Commonlii ]
 
Collins v Godefroy [1831] EWHC KB J18; [1831] 109 ER 1040; (1831) 1 B & Ad 950
1831
KBD
Lord Tenterden CJ
Litigation Practice, Costs
An attorney, who has attended on subpoena as a witness in a civil suit, cannot maintain an action against the party who subpoenaed him, for compensation for loss of time.
[ Bailii ]
 
Collier v Hicks (1831) 2 B & Ad 663; [1831] EngR 686; (1831) 109 ER 1290
7 Jun 1831

Lord Tenterden CJ
Litigation Practice, Magistrates
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal statute, and were proceeding to hear and determine the same, when the plaintiff (being an attorney) entered the police office with the informer, not as his friend or as a spectator, but for the avowed purpose of acting as his attorney and advocate touching the information ; and as such attorney and advocate, without the leave, and against the will, of the justices, was taking notes of the evidence of a witness then under examination before them, touching the matter of the said information, and was acting and taking a part in the proceedings as an attorney or advocate on behalf of the informer; that the above two defendants stated to the plaintiff, that it was not their practice to suffer any person to appear and take part in any proceedings before them as an attorney or advocate, and requested him to desist from so doing; and although they were willing to permit the plaintiff to remain in the police office as one of the public, yet that he would not desist from taking a part in the proceedings as such attorney or advocate, but asserted his right to be present, and to take such part, and to act as such attorney and advocate for the informer; and unlawfully, and against the will of the justices, continued in the police office, taking part and acting as aforesaid, in contempt of the justices ; whereupon, by order of the above two defendants, the other defendants turned the plaintiff out of the office : Held: on demurrer, that this was a good plea, inasmuch as no person has by law a right to act as an advocate on the trial of an information before justices of the peace, without their permission.
Lord Tenterden CJ said: 'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the Justices."
1 Citers

[ Commonlii ]
 
Bolton v The Corporation Of Liverpool [1831] EngR 973; (1831) 5 Sim 107; (1831) 58 ER 278 (A)
22 Dec 1831


Litigation Practice

1 Cites

[ Commonlii ]
 
Bolton v The Corporation Of Liverpool [1831] EngR 974; (1831) 3 Sim 467; (1831) 57 ER 1073 (B)
22 Dec 1831


Legal Professions, Litigation Practice
The Defendants had brought an action against the Plaintiffs to recover a sum alleged to be due for town dues. The Plaintiff's filed their bill, alleging that the Defendants had in their cusbody cases for the opinion of counsel, by which it would appear that the Defendants had no right to levy the dues, and also various charters, deeds, &c., by which the truth of the attachments in the bill would appear. The Defendants admitted in their answer that they had, in their custody, several cases, two of which were prepared many years ago, and without reference to the existing proceedings, but which contained mistaken representations as to the nature of their title to the dues, and the rest of which were prepared pending, or in contemplation of the existing proceedings, and that they also had, in their custody, charters, deeds and copies of accounts from public offices, which evidenced their title to the dues. A motion, by the Plaintiffs, for a production of all the documents, was granted as to the two old cases only.
1 Citers

[ Commonlii ]
 
Wadsworth v Marshall [1832] EngR 312; (1832) 1 Cr & M 87; (1832) 149 ER 325
1832


Litigation Practice

[ Commonlii ]
 
Wilson v Griffin [1832] EngR 338; (1832) 2 Cr & J 683; (1832) 149 ER 287 (B)
1832


Litigation Practice
Where bail are put in to render, no notice of their having been put in is necessary.
[ Commonlii ]
 
Wadsworth v Marshall And Another [1832] EngR 313; (1832) 2 Cr & J 665; (1832) 149 ER 279
1832


Litigation Practice

[ Commonlii ]
 
Small And Others v Attwood And Others [1832] EngR 776; (1831-1832) You 407; (1832) 159 ER 1051
1 Nov 1832


Company, Litigation Practice
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and the other parties. Where the partners in a Company or partnership are numerous, a bill may be filed by some of the partners on behalf of themselves and the other partners to rescind the contract. In a case where it is manifest, from the circumstances, and the evidence, that it is for the benefit of all the partners that the contract should be rescinded. A contract for the sale of iron mines was rescinded on the ground of fraudulent misrepresentations of the value of the estate, and of the prices of ironstone and other materials, and of the quantities of materials required for the manufacture of iron, notwithstanding possession had been taken, the mines worked, and other acts of ownership had been exercised, and notwithstanding some acts in confirmation of the contract.
1 Cites

1 Citers

[ Commonlii ]
 
Doe Dem Martin v Martin [1832] EngR 925; (1832) 1 M & Rob 242; (1832) 174 ER 82
20 Dec 1832


Litigation Practice

[ Commonlii ]

 
 Bolton v Liverpool Corporation; HL 1833 - (1833) 1 My & K 88; [1833] EngR 409; (1833) 39 ER 614
 
Bolton v The Corporation of Liverpool [1833] EngR 29; (1833-34) 2 My & K 758; (1833) 39 ER 1134 (E)
1833


Litigation Practice

1 Citers

[ Commonlii ]
 
Bolton v Corporation of Liverpool [1833] EngR 28; (1833) Coop T Br 19; (1833) 47 ER 7
1833


Litigation Practice
A party has a right to the production of such deeds only as either sustain his own title exclusively, or sustain it jointly with that of his adversary. A party is not compellable to produce, for the purposes of an action or suit, cases laid before counsel in the progress of a cause, and prepared in contemplation of such action or suit.
1 Cites

1 Citers

[ Commonlii ]
 
Doe v The Earl of Derby (1834) 1 Ad and El 783
1834

Littledale J
Litigation Practice
For a plea of res judicata to arise as between claimants to the title to goods, the same title must have come into question in both actions, because there must be an identity of interest between the party to the first action and the party to the second. A person deriving whatever interest is claimed from the litigant in the earlier proceedings will be bound by a judgment in the earlier proceedings if the interest which he claims was one which he obtained subsequent to the judgment: "A passage has been cited from Com. Dig. Evidence, A5, where it is said that "a verdict in another action in the same cause may be allowed in evidence between the same parties. So, it shall be evidence, where the verdict was for one under whom any of the present parties claim." But that must mean a claim acquired through such party subsequently to the verdict: if, as it has now been argued, the rule could be extended to parties claiming other lands under the same title previously to the verdict, the effect of such a verdict might be carried back for a hundred years. None of the cases support such a proposition."
1 Citers


 
Nicholls And Another v Chambers [1834] EngR 232; (1834) 1 CrM & R 385; (1834) 149 ER 1129
1834


Litigation Practice

[ Commonlii ]
 
Neale v M'Kenzie [1834] EngR 230; (1834) 1 CrM & R 61; (1834) 149 ER 994 (A)
1834


Litigation Practice

[ Commonlii ]
 
The King v The Justices of The West Riding of Yorkshire(In The Matter of The Aire And Calder Navigation, And Lake Lock Railway Companies) [1834] EngR 781; (1834) 1 Ad & E 563; (1834) 110 ER 1322
29 May 1834


Litigation Practice
A River Navigation Act provided that no proceeding to be taken in pursuance thereof should be removed by certiorari. By a subsequent statute for improving the same navigation, it was enacted, that all the powers, provisions, exemptions, rules, remedies, regulations, penalties, forfeitures, articles, matters, and things whatsoever, contained in the former Act, should be in full force, and extend to and be applied and enforced as to that Act and the matters therein contained, in as full a manner to all intents and purposes as if therein re-enacted: Held, that these were sufficient words to take away the certiorari on proceedings under the latter Act.
[ Commonlii ]
 
Pepper v Whalley [1834] EngR 811; (1834) 1 Bing NC 71; (1834) 131 ER 1044 (B)
3 Jun 1834


Litigation Practice
The names of two Defendants having been inserted in the writ of summons, separate proceedings were taken against each : Held, irregular.
[ Commonlii ]
 
Smith v Brooksbank [1834] EngR 880; (1834) 7 Sim 18; (1834) 58 ER 743 (B)
25 Jun 1834


Wills and Probate, Litigation Practice, Equity
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A's wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests. Held: that the executors were not necessary parties.
1 Citers

[ Commonlii ]
 
Sparke v Montriou [1834] EngR 1178; (1834) 1 Y & C Ex 103; (1834) 160 ER 43
23 Dec 1834


Litigation Practice
Where a defendant appears to be a bare trustee for the plaintiff, and offers no explanation to the contrary, the Court will compel the production of deeds and documents admitted, by his answer, to be in his possession. The Court will not, upon motion before the hearing, compel an incumbrancer to produce at the hearing deeds which are admitted by his answer, but which are his title deeds, even though thc plaintiff may have an interest in such deeds, but, under circumstances, the Court will direct them to be proved before the examiner. The mere circumstance of a defendant incorporating a deed in his answer, whether by referring to the schedule or otherwise, is not a ground for compelling its production, if in other respects such compulsion would be inequitable.
[ Commonlii ]
 
Partington v Baillie [1834] EngR 1177; (1834) 5 Sim 667; (1834) 58 ER 490 (A)
23 Dec 1834


Litigation Practice
The solicitor for some of the Defendanta was agent for the rest. The former were entitled to move to dismiss, and they moved accordingly; but no order could be made, as the time for the other Defendants to answer the amendments had not expired. Motion refused, with costs, as the solicitor must have known that the motion could not succeed.
[ Commonlii ]
 
Ramsden v Maugham [1835] EngR 203; (1835) 2 CrM & R 634; (1835) 150 ER 270 (A)
1835


Litigation Practice

[ Commonlii ]
 
Neale v Mackenzie [1835] EngR 178; (1835) 2 CrM & R 84; (1835) 150 ER 36
1835


Litigation Practice

[ Commonlii ]
 
Baker v Harwood [1835] EngR 628; (1835) 7 Sim 373; (1835) 58 ER 880
22 Apr 1835


Litigation Practice
The bill stated that A, the Piaintiff's cousin, died intestate and without issue, leaving the Plaintiff and B., a Defendant, his co-heirs: that C., the other Defendant, had entered into possession of A’s estates under an alleged will : that Plaintiff and B. had brought an ejectment against C. on their joint and several demises : that there were outstanding terms which C. threatened to set up, and which wouId defeat the ejectment, and that B. refused to join in the suit, The bill prayed for a discovery and productionof deeds, and to restrain the setting up of the terms. Held that the allegation of outstanding terms was sufficient ; but that the titIe by descent was not stated with sufficient particularity. Sembl, that B’ s not joining in the suit was also fatal to the bill.
[ Commonlii ]

 
 Pepper v Whalley; 6-Nov-1835 - [1835] EngR 947; (1835) 4 Ad & E 90; (1835) 111 ER 721
 
Bolton v Johnson [1836] EngR 28; (1836) 2 M & W 42; (1836) 150 ER 661 (A)
1836


Litigation Practice

[ Commonlii ]
 
Griffin v Yates [1836] EngR 392; (1836) 2 Bing NC 579; (1836) 132 ER 226
1 Feb 1836


Litigation Practice
De injuria is a proper replication in assumpsit, where the plea consists of matter of excuse.
[ Commonlii ]
 
Barry v Butlin [1836] UKPC 9; [1838] 2 Moo PCC 480
22 Jun 1836


Wills and Probate, Litigation Practice
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been given on the assignation.
This was a cause originally instituted for proving the last will and testament of Pendock Barry, deceased, promoted by the respondent, the sole executor, against the appellant, the son and only next, of kin of the deceased.
The cause was commenced in the Prerogative Court of Canterbury, on the 13th, May 1833, and various pleas having been put in, and witnesses examined on both sides, was set down for sentence on the 30th May 1835, on the second assignation on the fourth session of Trinity term.
1 Citers

[ Bailii ]
 
Tasker v Small And Matilda, His Wife, Charles S Ashford, B R Baker, Thomas Mann, Thomas Phillips, Joseph Wakeford, Thomas Hawkins, And Sarah Baker [1837] EngR 1060; (1837) CP Coop 255; (1837) 47 ER 494 (B)
18 Nov 1837


Litigation Practice
One Defendant appeals. Order made thereupon dismissing bll upon grounds equally applicable to other Defendants who did not join in the appeal. Such other defendants can have no benefit of such order, although it renders the decree useless.
1 Cites

[ Commonlii ]
 
Frewin v Lewis [1837] EngR 1163; (1837) 9 Sim 66; (1837) 59 ER 282
21 Dec 1837


Litigation Practice
Although the Poor Law Amendment Act enacts that no order of the Poor Law Commissioners shall be removed by certiorari into any Court of Record except the King's Bench, and that every order which shall be removed into that Court shall, nevertheless, until declared illegal, continue in force and be obeyed in the same manner as if it had not been so removed; yet the Court of Chancery has jurisdiction to restrain the Commissioners and the guardians of a union from acting upon an order pending proceedings under a certiorari obtained by the Plaintiff to try the validity of it.
[ Commonlii ]

 
 Grainger v Hill; CexC 1838 - (1838) 4 Bing (NC) 212; [1838] EngR 365; (1838) 4 Bing NC 212; (1838) 132 ER 769
 
Saunders And Benning v Smith And Maxwell [1838] EngR 772; (1838) 3 My & K 711; (1838) 40 ER 1100
22 Jun 1838


Intellectual Property, Litigation Practice

1 Citers

[ Commonlii ]
 
Twyford And Wife v Trail, Hall (Out Of The Jurisdiction Of The Court), and Maitland and Wife, Simpson, Simpson etc [1838] EngR 835; (1838) 3 My & Cr 645; (1838) 40 ER 1075
27 Jul 1838


Litigation Practice
When it is referred back to a Master to rerview his report, he is at liberty to receive further evidence. A Master having found a certain sum due from certain parties, those parties took two exceptions to the Master's report, by the first of which they submitted that the Master ought not to have so found and certified as he had found and certified ; and by the other of which they submitted that he ought either to have found nothing due from them, or that a certain sum, and no more, was due from them ; and they, at the same time, presented a petition praying a reference back to the Master to review his report, with certain directions as to particular items of account. The Vice-Chancellor made one order on the petition and the exceptions by which he merely allowed the exceptions, and referred it back to the Master to review his report. Held, That, under this order, the only inquiry which the Master could make was, whether anything, or a sum not exceeding the sum mentioned in the second exception, was due.
[ Commonlii ]
 
Rawson v Samuel [1838] EngR 1016; (1838) 9 Sim 442; (1838) 59 ER 428
29 Nov 1838


Litigation Practice
A bill was filed for an account of dealings and transactions between the parties and to restrain an action brought by the Defendant against the Plaintiff for a breach of contract in n ot accepting bills drawn on him by the Defendant. Held. The plaiintiff was entitled to inspect those parts only of the books mentioned in the schedule to the answer which related to the matters in question in the suit; and that, if he wished to inspect other parts of them with a view to his defence to the action, he must file a bill of discovery.
1 Citers

[ Commonlii ]
 
Gouthwaite v Rippon [1838] EngR 1111; (1838) 1 Beav 54; (1838) 48 ER 859 (A)
24 Dec 1838


Litigation Practice
A motion for an injunction and receiver is irregular where the Plaintiff amends his bill between the time of giving notice of moving and the time of bringing on the motion.
[ Commonlii ]
 
Corlett, Public Officer Of The North And South Wales Bank, v Conway, Executor Of Barbara Young, Deceased [1839] EngR 53; (1839) 5 M & W 653; (1839) 151 ER 277
1839


Litigation Practice
In a count on a guarantee for the repayment of bills, etc., drawn and subscribed by M and E, it was alleged that they accepted a bill, and by a memoraridum added to such acceptance, expressed the same to be payable at a particular place :-Semble, that the count waa bad on special demurrer, for want of an averment that the bills were subscribed by M and E
[ Commonlii ]

 
 Straker v Graham; 1839 - (1839) 4 M & W 721

 
 Crookes v Longden; 23-Apr-1839 - [1839] EngR 616; (1838) 5 Bing NC 410; (1839) 132 ER 1157
 
Wilson v Ray [1839] EngR 647; (1839) 10 Ad and E 82; (1839) 113 ER 32
1 May 1839

Lord Denman CJ
Litigation Practice
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. Money so recovered was . . received to the use of the successful party by authority of law. If any error was committed in the former proceeding, still the plaintiff is estopped from proving it after failing to do so at that time. If this were otherwise, the rights of parties could never be settled by the most solemn proceeding."
1 Cites

1 Citers

[ Commonlii ]
 
Regina v The Sheriff On Essex, In A Cause Of Dorrien And Others v Sheridan [1839] EngR 1122; (1839) 6 Bing NC 150; (1839) 133 ER 59
25 Nov 1839


Litigation Practice

[ Commonlii ]
 
Langley v Fisher; Langley v Overton [1839] EngR 1140; (1839) 10 Sim 345; (1839) 59 ER 647
28 Nov 1839


Litigation Practice
After the Defendants had answered the bill, one of the Plaintiffs died; upon which a bill of revivor was filed, praying that the Defendants might answer it. The defendants, in their answer, admitted the right to revive, and stated that, since answering the original bill, they had become bankrupt, and obtained their certificates. Held, that those statements were not impertinent.
[ Commonlii ]
 
Rookes v Rookes [1840] EngR 307; (1840) 2 Curt 345; (1840) 163 ER 434
11 Jan 1840


Litigation Practice

[ Commonlii ]
 
Dubois v Keats [1840] EngR 376; (1840) 8 Ad & E 945; (1840) 112 ER 1099
31 Jan 1840


Litigation Practice
When a cause made a remanet has been tried, a verdict found for the plaintiff, and judgment signed by him, it is too late to object that the jury process was altered before the trial, without proper authority. Though the defendant swears that he did not discover the supposed irregularity till the taxation of costs.
[ Commonlii ]
 
Faulkner v Whittall [1840] EngR 624; (1840) 1 Man & G 472; (1840) 133 ER 418 (A)
28 May 1840


Litigation Practice
In shewing cause against a rule nisi for judgment, as in case of a nonsuit, it is not necessary that the affidavit should state that plaintiff has a good cause of action. Where a defendant had become insolvent after action brought, and refused to accept a stet processus, the court discharged a rule nisi for judgment as in case of a nonsuit, although plaintiff had given notice of trial after he had become apprised of the insolvency.
[ Commonlii ]
 
Between Sarah Heighington, Edward Heighington, John Heighington, Martha Jane Heighington, And Robert Heighington The Younger, Plaintiffs; John Grant And William Gore, Defendants; And Between Sarah Heighington And Martha Jane Heighington, Plaintiffs; Edwar [1840] EngR 975; (1840) 5 My & Cr 258; (1840) 41 ER 369
19 Nov 1840


Litigation Practice
Under a direction, in a decree, that the Master shall ascertain balances in the hands of a party at the end of each year, and shall compute interest on such balances, and shall "in taking the said accounts" make annual rests, followed by a direction that the party shall be charged with interest "after the rate and in manner aforesaid upon such balances: "the interest computed on the balance due at the end of the first year is to form part of the balance due at the end of the second year, and upon which interest is then to be computed, and so on from year to year, to the end of the account.
[ Commonlii ]
 
Regina v Lovett [1841] EngR 101; (1841) 9 Car & P 462; (1841) 173 ER 912
1841


Defamation, Litigation Practice
If the manuscript of a libel be proved to be in the handwriting of the defendant, and it be also proved to have been printed and published, this is evidence to go to the jury that it was published by the defendant, although there there be no evidence given to shew that the printing aud publication were by the direction of the defendant. If a paper, published by the defendant, has a direct tendency to cause unlawful meetings and disturbances, and to lead to a violation of the laws, it is a seditious libel; and with respect to the intent every one must be taken to intend the natural consequences of what he has done. A and B were separately indicted for publishing the same libel. Both indictments containing the same prefatory allegations. A was tried first. and on the trial of B such of the witnesses as had been also examined on the trial of A. had (by consent) their evidence read over to them from the Judge's notes, B being allowed to further cross-examine them. A defendant, who surrenders to take his trial on a charge of miisdemeanor, need not stand at the bar to be tried, but may be allowed a place at the table of the Court.
[ Commonlii ]
 
Lancaster v Evors (1841) 4 Beav 158
1841


Litigation Practice, Wills and Probate
A creditor of the deceased's estate could enforce a cause of action vested in an estate which the executors were not willing to enforce.
1 Citers


 
G B K Cassidy v R Steuart [1841] EngR 183; (1841) 2 Man & G 437; (1841) 133 ER 817
12 Jan 1841


Litigation Practice

[ Commonlii ]
 
Cocker v Tempest [1841] EngR 242; (1841) 7 M & W 502; (1841) 151 ER 864
19 Jan 1841

Alderson B
Litigation Practice
Where a Judge’s order for staying proceedings in an action brought against good faith, was made in Trinity Vacation, and a motion to set aside that order was not made until Michaelmas Term:- Held, that the mere lapse of time was not sufficient to preclude the application, no injury having accrued to the defendant thereby. Every Court has an unlimited power over its own process, and may stay proceedings brought against good faith, though the agreement;, in fraud of which the action was brought, was made whilst the parties were not under the authority of the Court. Alderson B said: "the exercise of the power [of each court over its own process] is certainly a matter for the most careful discretion."
1 Citers

[ Commonlii ]
 
Faithfull And Another v Ashley [1841] EngR 273; (1841) 1 QB 183; (1841) 113 ER 1100
22 Jan 1841


Litigation Practice
Count in debt, alleging that defendant was indebted to plaintiffs in 10l. for work, &c, Plea, that defendant never was indebted to plaintiffs in a greater amount than 4l. in respect of the causes of action in the declaration mentioned, and, as to 4l., payment into Court. Replication, that defendant was indebted to plaintiffs in a greater amount, &c., in respect of the causes, &c. Held bad, on specal demurrer.
[ Commonlii ]
 
Jackson v Cassidy [1841] EngR 737; (1841) 2 Coop T Cott 172; (1841) 47 ER 1109 (A)
1 Jun 1841


Litigation Practice

[ Commonlii ]
 
Jackson v Cassidy [1841] EngR 830; (1841) 10 Sim 326; (1841) 59 ER 640 (A)
15 Jun 1841


Litigation Practice

[ Commonlii ]
 
Regina v Ryle [1841] EngR 1146; (1841) 9 M & W 227; (1841) 152 ER 96 (B)
25 Nov 1841


Litigation Practice
ln the case of an immediate extent, on an inquisition to find debts, the jury may find the fact of a debt being due to the Crown, on the sole evidence of anffidavit that the debt is due.
[ Commonlii ]
 
Chase And Another v Goble [1841] EngR 1140; (1841) 3 Man & G 635; (1841) 133 ER 1295 (A)
25 Nov 1841


Litigation Practice
A rule absolute for a new trial, obtained in Easter term by the defendant, upon payment of costs, not having been served upon the plaintiff, the court, upon the application of the plaintiff in Michaelmas term, discharged the rule for a new trial.
[ Commonlii ]
 
Luckie v Gopert [1841] EngR 1156; (1841) Car & M 57; (1841) 174 ER 407 (A)
26 Nov 1841


Litigation Practice
If in assumpsit on a bill of exchange by indorsee against acceptor, with a count upon an account stated, the defendant plead to the firat count that he did not accept, and do not plead at all to the second count, and the award of venire be in the usual form to try ; the Judge at Nisi Prius will try the issue joined, and, if a verdict pass for the plaintiff, a nolle prosequi should be entered as to the count upon an account stated.
[ Commonlii ]
 
Hickinbotham v Leach (1842) 10 M&W 361; [1842] EngR 799; (1842) 152 ER 510
1842


Litigation Practice
To a declaration for words, imputing to the plaintiff, a pawnbroker, that he had committed the unfair and dishonourable practice of duffing, that is, of replenishing or doing up goods, being in his hands in a damaged or worn-out condition, and pledging tbem with other pawnbrokers, the defendant pleaded, that then did replenish and do up divers goods, being in his hands in a damaged or worn out condition, and pledge them with divers other pawnbrokers. Held: Bad on special demurrer, as not being sufficiently specific. A litigant alleging fraud must let the "accused" know with complete frankness the case he has to meet, and this should be done "with the particularity of an indictment".
1 Citers

[ Commonlii ]
 
Clarke v Tipping [1842] EngR 132; (1842) 4 Beav 588; (1842) 49 ER 467
18 Jan 1842


Litigation Practice

1 Citers

[ Commonlii ]
 
Bassford v Blakesley [1842] EngR 189; (1842) 6 Beav 131; (1842) 49 ER 775
27 Jan 1842


Torts - Other, Litigation Practice
Where deeds are impeached for fraud, the mere allegation of fraud by the bill will not entitle the Plaintiff to an order for their production ; on the other hand, in order to obtain a production, it is not necessary that the fraud should be admitted by the answer, the Court must look at the circumstances of each case.
Order made for the production of a deed impeached for fraud, though the fraud was denied by the answer, the case on the whole being such as to render an inspection proper.
[ Commonlii ]
 
Doe Dem Story v Roe [1842] EngR 1042 (A); (1842) 4 Man & G 843
16 Nov 1842


Litigation Practice
Service of a declaration or ejectment upon a person found upon the premises, but not shewn to be resident there. Held to be insufficient.
[ Commonlii ]
 
Whitfield v Prickett Ex Parte Brookes [1842] EngR 1181 (B); (1842) 13 Sim 259
9 Dec 1842


Litigation Practice

[ Commonlii ]

 
 Farran v Beresford; HL 1843 - (1843) 10 Cl & F 319
 
Dryden vFoster; Danson v Foster [1843] EngR 207 (A); (1843) 6 Beav 146
19 Jan 1843


Litigation Practice

[ Commonlii ]
 
Tipping v Clarke [1843] EngR 368; (1843) 2 Hare 383; (1843) 67 ER 157
13 Feb 1843


Litigation Practice

1 Cites

1 Citers

[ Commonlii ]
 
Bethel Henderson v Elizabeth Henderson And Others [1843] EngR 845; (1843) 4 Moo PC 259; (1843) 13 ER 301
16 Jun 1843
PC

Litigation Practice
Upon a petition stating that a party against whom a decree had been pronounced by the Supreme Court of Newfoundland, was at the time resident in England and had no representative within the Island, or notice of proceedings against him ; the Judicial Commiittee gave leave to appeal upon terms ; notwithstanding that he had not asserted an appeal within fourteen days from the final Decree as required by the Charter of Justice of Newfoundland.
1 Citers

[ Commonlii ]
 
Gregory v Duke Of Brunswick and Vallance [1843] EngR 859; (1843) 1 Car & K 24; (1843) 174 ER 696
21 Jun 1843


Media, Torts - Other, Litigation Practice
The public, who go to a theatre, have a right to express thelr free and unbiassed opinions of the merits of the performers who appear upon the stage, but parties have no right to go to a theatre, by a preconcerted plan to make such a noise that an actor, without any judgment being formed of his performance, should be driven from the stage, and if two persons are shewn to have laid a preconcerted plan to deprive a person who comes out as an actor of the benefits which he expected to result from his appearance on the stage, they are liable in an action for a conspiracy. In an action for a, conspiracy to hiss an actor, the defendants cannot, under the genera1 issue, give in evidence libels published by the plaintiff, with a view of shewing that the plaintiff was hissed on account of those libels, and not by reason of any conspiracy of the defendants. In an action for a conspiracy, the defendants pleaded the general issue, arid also a special plea of justification, which plea was demurred to, and held bad by the Court, who gave judgment on it for the plaintiff and the award of venire was as well to try the issue joined "as, to inquire what damages the said plaintiff hath sustained on occasion of the premises whereof the Court hath given judgment for the said plaintiff" Held, that on the trial at Nisi Prius, the defendant's counsel, in addressing the jury, had a right to refer to the allegatlons contained in the special plea, and to comment upon them.
[ Commonlii ]

 
 Henderson v Henderson; 20-Jul-1843 - (1843) 3 Hare 100; [1843] EngR 917; (1843) 67 ER 313
 
Autey v Topham [1843] EngR 1033; (1843) 5 Man & G 1; (1843) 134 ER 456
7 Nov 1843


Litigation Practice
Commonlii Where the statement of the case by the revising barrister and the notice of intention to prosecute the appeal have not been sent to the masters within the four first days of Michaelmas term, the court will not, except under peculiar circumstances, allow the appeal to be entered. - The statement in writing by the revising barrister is duly transniitted to the masters, but the notice of intention to prosecute the appeal is not sent in time : Held, that the appeal cannot be entered.-An affidavit by the clerk of the attorney to the appellant, .stating that the notice which is required to be signed by the appellant, had by mistake not been sent, cannot be received as a substitute for such notice.
[ Commonlii ]
 
Wilson v Jones [1843] EngR 1219; (1843) 12 Sim 361; (1843) 59 ER 1170
8 Dec 1843


Litigation Practice
Although a Defendant’s name is omitted in the note at the foot of the bill, he must put in an answer, though it be a mere formal one.
[ Commonlii ]
 
Pringle v Crookes [1843] EngR 1221 (B); (1843) 7 Beav 257
9 Dec 1843


Litigation Practice
A Defendant took exceptions to the Master’s report, and also presented a petition of rehearing, objecting to the original decree, on the ground of want of parties, and also to a part of that decree. The exceptions and rehearing came on together. Held that the Defendant was entitled to begin.
[ Commonlii ]
 
Collins and Rigley v Evans and Wheelton [1844] EngR 11; (1844) 5 QB 820; (1844) 114 ER 1459
1844


Litigation Practice
Errar was brought in the Exchequer Chamber on the record in Emms v, Collins, the grounds assigned, in addition to the common ones, being that the declaration was not sufficient in law (a), and that the third plea was sufficient. The case was argued in last Michaelmas vacation.
[ Commonlii ]
 
The Sussex Peerage Case (1844) 11 Cl & Fin 85; 8 ER 1034; [1844] EngR 822; (1844) 11 Cl & Fin 85; (1844) 8 ER 1034
1844

Tindal CJ
Evidence, Litigation Practice
Statements against penal interest are outside the common law exception of statements against interest. The oral confession of a deceased person was considered.
The court considered principles of statutory interpretation: "Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver." and 'If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver'.
1 Citers

[ Commonlii ]
 
Mawhood v Labouchere [1844] EngR 358 (A); (1844) 12 Sim 362
18 Mar 1844


Litigation Practice
Under the 24th Order of August 1841, the Court will allow the Plaintiff to enter a memorandum of service of a copy of the bill without an affidavit, stating the nature of the suit, and that no direct relief is sought against the Defendant who has been served.
[ Commonlii ]
 
Munday v Knight [1844] EngR 458; (1844) 3 Hare 497; (1844) 67 ER 477
24 Apr 1844


Litigation Practice
A general charge of fraud is to be referred to, and explained by, the particular allegations of fraud which the bill contains; but, if there be no definite or specific charge of fraud, a vague charge, where the facts alleged may or may not amount to a fraud, will not sustain the bill upon demurrer.
[ Commonlii ]
 
Ward v The Society Of Attornies [1844] EngR 816; (1844) 1 Coll 370; (1844) 63 ER 459
26 Jul 1844


Legal Professions, Company, Litigation Practice
On a motion made on behalf of the minority for an injunction to restrain the majority of the members of a corporation from surrendering their charter, with a view to obtain a new charter for an object different from that for which the original charter was granted, the Court granted the injunction until the hearing.
[ Commonlii ]

 
 Walter v De Richemont, Commonly Called Le Vicomte De Richemont; 18-Nov-1844 - [1844] EngR 982; (1844) 6 QB 544; (1844) 115 ER 204
 
Nettleton v Burrell [1844] EngR 988 (A); (1844) 7 Man & G 35
19 Nov 1844


Litigation Practice
Where a revising barrister having assented to the substance of a special case agreed upon between the parties thereto, but died without having finally settled the terms in which the statement should be made, the court refused to allow the case to be entered. Whether, supposing the assent of the revising barrister to have been given to the special case in its terms, the court would allow the case to be entered without his signature after his death, quaere.
[ Commonlii ]

 
 King And Another v Hoare; 25-Nov-1844 - [1844] EngR 1042; (1844) 13 M & W 494; (1844) 153 ER 206
 
Twycross v King [1844] EngR 1049; (1844) 6 QB 663; (1844) 115 ER 250
25 Nov 1844


Litigation Practice
Plaintiff, having delivered a replication to several pleas, concluding to the country as to each plea but traversing one with a special inducement, added the similiters, made up and delivered the issue, and gave notice of trial. Defendant struck out the similiters, and gave notice thereof to plaintiff, But did not deliver a rejoinder or notice of his intetition to rejoin. Afterwards defendant craved oyer of an indenture mentioned in the special inducement, and delivered a rejoinder with a demurrer to the replication containing that inducement, and a similiter as to the rest; and also gave notice that he should not appear on the trial, but should move to set aside any trial bad. Plaintiff proceeded to trial, and obtained a verdict, defendant not appearing. The Court set aside the verdict and trial, with costs.
[ Commonlii ]
 
Smith v Yeomans [1845] EngR 240; (1845) 1 Wms Saund 316; (1845) 85 ER 437
1845


Litigation Practice

[ Commonlii ]
 
Gosset v Howard (1845) 10 QB 35
1845


Litigation Practice
Sequestrators, as officers of the court who act under the order of the court, are entitled to immunity from suit.
1 Citers


 
Mildmay v Smith and others [1845] EngR 162; (1845) 2 Wms Saund 338; (1845) 85 ER 1136
1845


Litigation Practice
Writ of error in a scire facias against a sheriff.
[ Commonlii ]
 
Williams v Jones [1845] EngR 394; (1845) 13 M & W 628; (1845) 153 ER 262
22 Jan 1845

Parke B
Jurisdiction, Litigation Practice
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
1 Citers

[ Commonlii ]
 
Doe D Dudgeon And Smith v Martin, Chapman, And Others [1845] EngR 512; (1845) 13 M & W 811; (1845) 153 ER 340
19 Feb 1845


Litigation Practice

[ Commonlii ]
 
Smith v Hurst [1845] EngR 577; (1845) 1 Coll 705; (1845) 63 ER 607
13 Mar 1845


Litigation Practice

[ Commonlii ]
 
Rigby v Pinnock [1845] EngR 1207 (A); (1845) 8 Beav 575
3 Nov 1845


Litigation Practice
The Court will not prospectively dispense with the usual oath of the messenger to whose custody an answer is confided.
[ Commonlii ]
 
Rigby And Another v The Great Western Railway Company [1845] EngR 1316 (B); (1845) 14 M & W 811
1 Dec 1845


Litigation Practice, Contract

1 Citers

[ Commonlii ]
 
Skrine v Powell [1845] EngR 1354; (1845) 15 Sim 81; (1845) A)
15 Dec 1845


Litigation Practice
A defendant to a bill for discovery and to perpetuate the testimony of witnesses, is entitled to his costs of the discovery, although he has examined witnesses in chief.
[ Commonlii ]
 
Slack v Clifton [1846] EngR 372; (1846) 8 QB 524; (1846) 115 ER 972
30 Jan 1846


Litigation Practice
Where a Judge at chambers has dismissed a summons to strike out a count, the full Court will not interfere. An affidavit sworn, for the purpose of obtaining a rule, by a party styling himself clerk to A. and B. "agents for the defendant," shews sufficiently that the application is authorized by defendant, if it does not appear that he is absent from the country.
[ Commonlii ]
 
Spottiswoode v Clark [1846] EngR 1197; (1846) 1 Coop T Cott 254; (1846) 47 ER 844
11 Dec 1846


Litigation Practice, Intellectual Property
A plaintiff seeking an injunction to restrain publication of documents must first demonstrate a title in them.
1 Citers

[ Commonlii ]
 
Munden v Charles Frederick Augustus William, Dike Of Brunswick And Luneburg, Sued As Charles Frederick Augustus William D'Este, Commonly Called The Duke Of Brunswick [1847] EngR 496; (1846) 4 CB 321; (1847) 136 ER 530
8 May 1847


Litigation Practice
The defendant, having entered an appearance in person as “CFAW, Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick,” delivered a plea to the jurisdiction, with an affidavit of verification, respectively intituled “CFAW, sovereign Duke of Brunswick and Luneburg, sued as CFAW D'Este, commonly called the Duke of Brunswick.” The plaintiff, treating the plea as a nullity, signed judgment. The court refused to set aside the judgment, without an affidavit of merits.-An affidavit with a jurat signed, “AB, a com’. &c,” is sufficient.
[ Commonlii ]
 
Barker v Birch [1847] EngR 745; (1847) 1 De G & Sm 376; (1847) 63 ER 1112
19 Jul 1847


Wills and Probate, Litigation Practice
There may be circumstances under which the Court will, at the suit of universal legatees under a will, direct an account against a debtor to the testator’s estate, without collusion being established between the debtor and the personal representative, or any evidence of insolvency on the part of the latter, or of his refusal to sue the debtor other than his omission to institute proceedings for a considerable period. Quaere, whether an honest refusal by an executor to institute a suit against a solvent person reasonably alleged to be equitably indebted to the testator is sufficient of itself to enable the universal legatee of the testator to sue the debtor in equity, making the executor a party. Quaere, whether a party can read the cross-examination of the witness of his adversary where the latter does not read the examination-in-chief.
1 Citers

[ Commonlii ]
 
The Duke Of Brunswick v Sloman [1847] EngR 936; (1847) 5 CB 218; (1847) 136 ER 860
24 Nov 1847


Litigation Practice
Where a defendant came to the court in a vexatious and expensive manner, to apply for an amendment that might have been obtained at chambers, his rule was discharged with costs, unless he would consent to pay the costs of the amendment.
[ Commonlii ]
 
Penruddock v Hammond [1847] EngR 955 (A); (1847) 11 Beav 59
1 Dec 1847


Legal Professions, Litigation Practice
Privilege as to cases and opinions anterior to any litigation. A Defendant by his answer, stated, that he was advised that the cases and opinions stated in the schedule, were privileged. Held, that the privilege was not sufficiently shewn by the answer; but liberty was given to supply the omission by affidavit.
[ Commonlii ]
 
Couling v Coxe (1848) 6 Dow & L 399
1848


Litigation Practice, Costs
A plaintiff in a civil action who has issued a witness summons or subpoena to a witness to attend may have an action against a witness who fails to attend, but the damages recoverable were limited to the costs of an abortive hearing when the Plaintiff was non-suited.
1 Citers


 
Whiffen v Hartwright [1848] EngR 406 (A); (1848) 11 Beav 111
15 Apr 1848

Lord Langdale MR
Litigation Practice
The court refused to order the production of letters which had passed 'without prejudice'. Lord Langdale MR observed that he 'did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery was limited to the use which could be made of it in evidence.' Production can be ordered of documents even though they may not be admissible in evidence.
1 Citers

[ Commonlii ]
 
Sowdon v Marriott [1848] EngR 612 (A); (1848) 2 Ph 623
13 Jun 1848


Litigation Practice

[ Commonlii ]
 
Batho v Dickman [1848] EngR 614 (A); (1848) 6 CB 260
14 Jun 1848


Litigation Practice
It is no ground for setting aside a distringas, that the affidavit on which it was obtained, states that the calls and appointments were made "at the place of residence of the defendant; " or that it states briefly that the defendant has not appeared, without adverting to any search ; or that it does not state when, or where, or whether, the copy of the writ of summons reached the hands of the defendant - Where no objection has been taken to a writ of summons, in which the defendant is described by initials, it is too late to object to the distringas on that ground.
[ Commonlii ]
 
Mudhoo Soodun Sundial v Suroop Chunder Sirkar Chowdry (1849) 4 Moore Ind App 431
1849
PC
Dr. Lushington
Litigation Practice
"Both the Courts below have decided against the validity of the instrument; a fact which, considering the advantages the Judges in India generally possess, of forming a correct opinion of the probability of the transaction, and in some cases of the credit due to the witnesses, affords a strong presumption in favour of the correctness of their decisions, but does not, and ought not, to relieve this, the Court of last resort, from the duty of examining the whole evidence, and forming for itself an opinion upon the whole case."
1 Citers


 
Gregory v The Duke of Brunswick and Hen Wellington Vallance [1849] EngR 422; (1849) 2 HLC 415; (1849) 9 ER 1149
26 Mar 1849


Litigation Practice
Were it appeared to the House that a mistake, committed by an officer of the Court below, in entering the judgment, of that Court, was made the ground of a writ of error, the arguments on the writ of error brought on such judgment were stopped, and the case was ordered to stand over, to allow the parties to apply to the Court below to amend the error.
The House made this order, after referring to the report of the opinions of the Judges of the Court below, as stated in the printed reports of the decisions of that court.
[ Commonlii ]
 
The Grand Junction Canal Company v Dimes [1850] EngR 243; (1850) 2 H & Tw 92; (1850) 47 ER 1610; [1849] EngR 682; (1849) 17 Sim 38; (1849) 60 ER 1041
2 Jun 1849


Litigation Practice
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain those actions. The defendant had also challenged the validity of the existing orders.
1 Cites

[ Commonlii ] - [ Commonlii ]
 
Maria Pilgrim, Charles Henry Pilgrim, John Bunce Pilgrim, Charles Pilgrim, And Thomas Penrose, Clerk v The Southampton The Doe Chestee Railway Company [1849] EngR 728; (1849) 8 CB 25; (1849) 137 ER 417
12 Jun 1849


Litigation Practice

[ Commonlii ]
 
The Duke of Brunswick v Slowman And Others [1849] EngR 1084; (1849) 8 CB 617; (1849) 137 ER 649
24 Nov 1849


Litigation Practice
The want of a date in the jurat of an affidavit, is not cured by a reference to it in another affidavit as "an affidavit of A B sworn on such a day." -- Semble, that this court will not give costs where a rule is discharged solely on the ground that the aaffidavit on which it is founded has a defective jurat.
[ Commonlii ]
 
Levy v Railton [1849] EngR 1090; (1849) 14 QB 418; (1849) 117 ER 164
26 Nov 1849


Litigation Practice
If a plea be so pleaded that it is manifestly intended to embarrass the plaintiff, the Court, on affldavit that the plea is false will set it aside. As, where, to an action by the second indorsee of a bill of exchange against the acceptor, defendant pleaded that the acceptance was obtained from him by fraud of the drawer, that the bill was overdue when indorsed by the drawer to the first indorsee, and that both indorsees at the time of taking the bill, had notice of the premises. A plea under such circumstances is not treated as a mere irregularity.
[ Commonlii ]
 
Varivas v French [1849] EngR 1194; (1849) 2 Car & K 1008; (1849) 175 ER 424
12 Dec 1849


Litigation Practice

[ Commonlii ]
 
The Duke of Brunswick v The Duke of Cambridge [1849] EngR 1197; (1849) 12 Beav 279; (1849) 50 ER 1068
13 Dec 1849


Litigation Practice
Exceptions for insufficiency will be overruled, if they vary, in a material particular, from the form of the interrogatory, as where the interrogatory is in the present tense and the exception is in the past.
An interrogatory asked whether certain sums had not come to the Defendant's hands, and whether he had not applied "the same." The Defendant denied that any sums had come to his hands, but did not answer the remainder. Held, that the answer was sufficient.
An interrogatory asked whether the Defendant had not had communication with A. B and C. D. and other persons. The answer admitted communications with A B but denied any with any other persons, omitting the name of C. D. Held, that being specially interrogated as to C. D., the general answer was insufficient.
[ Commonlii ]
 
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