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1851.

it does not deny consideration. There is nothing in it upon which the plaintiff can take issue. A plea that is clearly bad on demurrer, is not an issuable plea: Hughes v. Poole.(a)

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Bramwell, in support of his rule. The plea is clearly an issuable plea, though it may be a little informal. The defendant was compelled to put it in its present shape, because the judge at chambers declined to allow him to plead two pleas, one in bar to the further maintenance of the action, the other in bar generally. [Cresswell, J. A plea of payment in pursuance of an agreement, is no answer to an action upon the bill, for the reason assigned by Mr. Lush, that it is seeking by parol to vary the terms of the bill.] This is not a plea of payment at all: it is, partial failure of consideration.

Jervis, C. J. I am of opinion that this rule should be discharged. Mr. Bramwell's argument satisfies me that the plea is clearly non-issuable and bad. He admits that an action lay on the bill. Then, payment after the bill became due, and after the action accrued, would be no answer, unless the agreement suspends the remedy on the bill; and that would be varying the terms of the contract upon the face of the bill by parol, which you cannot do. The plea therefore is clearly no answer to the action.

WILLIAMS, J. I am of the same opinion. This is in reality an obscure way of pleading that the defendant did not promise that which upon the face of the bill it appears he did promise.

The rest of the court concurring,

Rule discharged.

(a) 6 M. & G. 271., 6 Scott, N. R. 959. VOL. X.-C. B.

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1851.

power to ad

BOELEN and Another v. MELLADEW.
May 12.
Where a com-

A

COMMISSION had issued in this case for the mission issues for the exami

examination upon interrogatories of certain witnation of wit

nesses for the defendant, "upon his or her corporal nesses in a foreign coun- oath, according to the form of his or her religion retry, the oath of spectively,” before commissioners at Tonnengen, in the sioners may,

Duchy of Schleswig. By the order, it was provided that under special the commissioners should, before they proceeded to act circumstances, be dispensed under the commission, take an oath in the form therein with.

By the law agreed upon, and that the depositions taken under it of Denmark, should be returned to the consul of the Danish governnone but burgomasters have ment, in London; the costs of the commission to be

costs in the cause. minister oaths; and the mode Upon the return of the interrogatories and examinaof administering an oath to tions, in pursuance of the order, it appeared that neither a witness, is,

the commissioners, nor their clerk, nor the witnesses, by causing him

had been sworn upon either the old or the new testahis right hand, ment, as required by the law of this country; but that and declare each of the witnesses, before giving his evidence, gave that he will speak the his hand to the commissioners and pledged himself to truth. A com- state the truth. mission having failed, for want of the obsery

Channel, Serjt., for the defendant, on a former day in ance of these formalities – this term, moved for a rule calling upon the plaintiffs to the court, on payment of all shew cause why the depositions as returned should not costs, allowed a be read in evidence at the trial, notwithstanding that the second commission to go,

commissioners and witnesses had not been duly sworn. addressed to He referred to Clay v. Stevenson (a), where the court of burgomasters.

Queen's Bench, under special circumstances, dispensed

to hold up

(a) 3 Ad. & E. 807., 5 N. & M. 318.

1851.

BOELEN

v.

MELLADEW.

with the oath usually administered to commissioners. [Cresswell, J. What authority have the judges to receive evidence not upon oath, unless under the special provisions of an act of parliament? Dispensing with the oath of the commissioners, is a very different thing. Jervis, C. J. If we were to decide upon motion that the depositions in their present form are evidence, we might be depriving the plaintiffs of an opportunity of tendering a bill of exceptions.] At all events, the court may assist the defendant by granting a new commission, dispensing with the commissioners' oath.

JERVIS, C. J. The better course will be, to make further inquiry as to the law of the duchy as to the administering of oaths, and let the matter be mentioned again.

Channell, Serjt., afterwards produced an affidavit stating that inquiry had been made of the vice-consul of the duchy, and of other persons, and that the deponent was informed by them, that, by the law of Denmark, the burgomasters are the only persons authorised to adminster oaths; that an oath is taken in all judicial proceedings by holding up three fingers of the right hand, to indicate the three persons of the Holy Trinity, and promising to speak the truth; and that persons giving false testimony, after taking an oath in this form, are subject by the law of Denmark to punishment; and, further, that it is contrary to the laws of that country for the commissioners themselves to swear, an oath by them being considered voluntary, and voluntary oaths being strictly forbidden. [Williams, J. The law of every country requires some sort of appeal to a Divine power before witnesses are permitted to give their evidence. Talfourd, J., referred to the case of Omichund v. Barker.(a)

(a) Willes, 538., 1 Smith's Leading Cases, 195.; and see 1 Wils. 84., 1 Atk. 21.

1851.

A rule nisi having been granted, for a new commission to be issued to burgomasters, without requiring them to

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be sworn,

Byles, Serjt., for the plaintiffs, submitted that the rule could only be made absolute on payment of costs.

Channell, Serjt., was heard in support of the rule.

Per curiam. The rule must be absolute upon payment by the defendant of the costs of the rule, and of all costs incurred by reason of the failure of the first commission.

Rule absolute accordingly.

HENRY HUNT v. THE GREAT NORTHERN

RAILWAY COMPANY.

April 26.

to recover

In a plaint ON

N the 17th of January, 1851, a summons issued out brought in a

of and under the seal of the county-court of Hertcounty-court against a rail- fordshire, at Barnet, at the suit of Henry Hunt as plainway company

tiff, against The Great Northern Railway Company as damages for

defendants, in an action of tort, for loss sustained and expense and loss of time expenses incurred by delay in the carriage and delivery sustained by the plaintiff in

of certain coals of the said Henry Hunt from Peterconsequence of borough to Potter's Bar, and for the wrongful refusal the improper omission of the by the company to carry coals upon their railway for company to

him. The particulars of the plaintiff's claim were as convey goods on their line, a

follows: question was raised as to the right of the company to charge toll for empty waggons :-Held, that the "title to toll" did not thereby come in question, within the meaning of the proviso in the 9 & 10 Vict. c. 95, s. 58.

1851.

HUNT

0. THE GREAT

Northern RAILWAY Co.

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December 21, 1850, to January, 10, 1851.
" Loss of time of three men and two horses

at Potter's Bar, waiting the arrival of
coal consigned from Peterborough, De- £ s. d.
cember 20, 1850

5 5 0 Expenses and loss of time of agent to

Peterborough twice, occupying three
days .

3 14 0 “ Additional cost of carriage of 3718 tons

coals per Eastern Counties Railway 4 6 6 “Cartage of same from Enfield station to Potter's Bar, at 6s per ton

11 5 0 “ Own expenses to London, inquiring re

specting these coals, three times, at 10s. 1 100 “ Loss of sale of ninety tons coals, being at the rate of five tons per day, at 2s.

9 0 0 “ Additional cost of 548 tons coals bought of The Great Northern Railway Com

11 00 « Extra cost of thirty-six tons coals, being

obliged to deliver sea coals instead of
inland, 8s.

14 8 0
£49 19 6”

pany, at 2s.

The plaint came on for hearing on the 24th of February, when the plaintiff claimed to recover the several sums above mentioned, as damages for the refusal of the company to carry certain waggons or carriages belonging to the plaintiff, containing coals, from Peterborough to Potter's Bar; and it appeared from the evidence adduced by him that such refusal was grounded upon a demand made by the company to be paid by the plaintiff a sum of 2. 10s. for the passing over their line of railway of, and for bringing back, the said waggons empty from Potter's Bar to Peterborough, after having conveyed them from the latter to the former place with coals

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