Superior Courts: Queen's Bench. 365 Fergusson v. Mitchell, and Spyer v. Thelwall.m The declaration alleged the distraint upon two stacks of hay, part of another stack, and 20 tons of hay, and then again 500 other trusses, non constat but that these tons and trusses of hay were in carts. If so, they were distrainable at common law, and the avowry is sufficient to cover them. An avcwry must be treated as a declaration, because in replevin both parties are actors, and if so treated here, it sets up a sufficient title to make the distress. Mr. Richards in reply.-Assuming that under certain circumstances, the grantee of an annuity may have the right of distress, that right is not shewn to exist here. The hay and corn mentioned here are not distrainable. Even supposing the statutes to include in annuity, the power must be confined to the contracting parties, and cannot be extended to third persons. There is nothing here to shew that the plaintiff was in possession under the grantor, and the phrase "seisin in fee," will not raise that fact by implication. Cur, adv. vult. not distrain the cattle of a stranger trespassing on the land. Could he by his grant enable the grautee to do so?] He could not; but the grantee of this rent-charge has all the same rights as a landlord would have. In Coke upon Littleton, rent and rent-charge are put on the same footing. The 4 Geo. 2, c. 28, s. 5, gives the owner of a rent seck the same remedy as in the case of a rent reserved on a lease. A rent-charge is a rent seck, with an added power of distress. All the authorities shew that the power of distress for a rentcharge, may be the same as on a demise. In principle, there can be no difference of hardship between the two cases. But here the question of hardship does not arise. Nor on the statement on the face of these pleadings is it to be presumed; but the question really is," rent by contract," the contract of a grant of whether hay is distrainable. It is so. Hay is a personal chattel. All personal chattels are liable to distress. Formerly, a distress was a pledge, and a man was bound to remove it; but in such a state that it could be restored as it had been removed. As hay and corn on the ground, or in barns, could not be so restored, it came to be laid down that they could not be distrained; but in Coke upon Littleton it is shewn, that if they could be so restored, they might be removed. The objection to distraining them was not therefore in the things themselves, but in the power to restore them as they had been removed. But where they could be restored in the same state as that in which they were removed-as if the hay or corn was in a cart, the distress was good, even at common law. Blackstone's Commentaries. But now corn and hay are universally distrainable by the stat. 11 Geo. 2, c. 19, s. 10, which gives the party making the distress the right to impound it on the premises, so that there need be no removal. The reason, therefore, which prevented the distress being made on bay and corn, having ceased, the prohibition to distrain them must cease also. Even assuming that it does not appear that the grantor of this rentcharge was owner of the fee, still the grant is good. It might be if he was only tenant for life. Saffery v. Elgood Again, the distress is made legal by the 3 W. & M. sess. 1, c. 5, s. 3, by which distress may be made by any person to whom rent is due on a contract of sheaves, or cocks of corn, or corn loose, or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise, upon any part of the land. This was rent granted by contract within the words of that statute. The terms of this grant are much stronger than those in Miller v. Green. There too, the distress was of growing crops, and the statute was intended strictly to confine the right of distress upon growing crops to landlords. So that that case rather supports than impeaches the right of distress in the present case. Then this demurrer is too large. Lord Denman, C. J.-This was an action of replevin. The defendant deduced his title to the premises on which the distress was taken in the following manner. He shewed that Francis Johnson and Sarah his wife, were seised of the premises in question for the life of the said Sarah, and being so seised, Johnson granted to one Heptinstall, a certain annuity of 3007. secured on these premises, and the indenture of annuity contained the grant of a pow r to distrain "in the same manner as the law directs in cases of rent in arrear." The avowry then stated the death of Heptinstall, and the transfer of his right to the defendant, and his entry on the premises for the purpose of making the distress. To this avowry there was a general demurrer. On this demurrer, there was an argument that hay, corn, and straw in a rick could not be distrained for the arrears of an annuity at common law, and that the defendant could not claim the benefit of the statutes passed for the assistance of landlords. But we are of a different opinion, and think that the grantee of a rent charge may justify under a right of distress as for rent. Á distress could not always be taken at common law, because in a distress, the party taking it was bound to re- deliver it in the state in which it was taken, and where it could not be so returned, it could not lawfully be taken, and therefore hay, corn, and straw, under circumstances like these, were not distrainable, though hay in a cart might always be distrained, because it could be returned in the state in which it had been taken. But this strictness of the common law has been remedied by the provisions of the statute of 2 W. & M., by which the landlord, or person having rent due to him on a contract, was enabled to distrain corn in any part of the ground. If this was a case between landlord and tenant, there can be no 1 2 Crom. Mee. & Ros. 687. m Ibid. 692. 366 Superior Courts: Queen's Bench Practice Court. to set aside these proceedings, on the ground of the undersheriff having no jurisdiction to try a claim for unliquidated damages. W. Cooke shewed cause against this rule, and contended that the plaintiff could not object to the want of jurisdiction on the part of the undersheriff, as he had himself procured the order for the writ of trial. Pearson supported the rule, and submitted that the contract of the parties could not give jurisdiction. Wightman, J., thought, that as by the notice of the action it was for unliquidated damages, and therefore, out of the jurisdiction of the undersheriff, the consent of the parties did not supply the defect of jurisdiction. The proceedings must, therefore, all be set aside. Rule absolute for setting aside the proceedings.- Lismore v. Beadle, H. T. 1842. Q. B. P. C. doubt that the distress would be good; but it was contended for the plaintiff that this statute did not apply to such rent as this, but only to rent under a demise, properly so called, and Miller v. Green," was cited in favour of the plaintiff upon this proposition. Without impugning the authority of that case, we get rid of its effects by saying that we think it does not apply to the present. Then the party relied on the provisions of the 11 Geo. 2, but that is in terms limited to landlords. Here the defendant claims the benefit of 2 W. 3, and if there was any doubt as to his being entitled to the benefit of that statute, it would be removed by the 4 Geo. 2, c. 28, s. 5, which puts on the same footing rent-seck and rent reserved on a lease. But it was said that, however that might be, the distrainer had no power of distress for such rent upon the goods of a stran. ger, or of one who was in possession under a substantive demise. The case of Suffery v. Elgood is decisive as to the right of distress under such circumstances. The avowry was inconsistent with the grant of a lease for years, and therefore it might be taken to have been pleaded that this was no substantive demise at all. It was said, however, to be clear that the allegation of seisin, so far from being inconsistent with a demise for years, is a proof of it, and therefore, that the plaintiff might claim by a demise previous to the grant of the rentcharge. But if the plaintiff really did hold in Sunday, and on the 4th November application that way before the grant of the rent-charge, he was made to set aside the notice and all subsemight have replied that fact. Howell v. Bell,pquent proceedings for irregularity. A rule to that effect having been obtained, is an authority on this point, and as the plaintiff has not put such a replication on the re-tended as a preliminary objection, that the apMartin shewed cause against it, and concord, the judgment of the Court must, on that as well as the other points, be for the defen dant. Johnson v. Faulkner, H. T. 1842. Q. B. P. C. SERVICE OF NOTICE OF DECLARATION. LACHES. Notice of declaration was served on the 30th October, the 31st was a Sunday. It was held to be too late to move to set the notice aside on the 4th November. the notice of that proceeding was served on the In this case, the declaration was filed and 30th October. The 31st of that month was a plication was too late. More than four days had elapsed between the service of the notice the application should have been made on the of declaration and the application. At latest, 3d November. The fact of the 31st October being a Sunday, did not prevent it being Queen's Bench Practice Court. WRIT OF TRIAL.-SHERIFF'S JURISDICTION.-counted, as was decided in Hinton v. S'evens. UNLIQUIDATED DAMAGES. Jervis supported the rule, and contended that the application was in full time. The defenIf a claim made by a plaintiff is for unliquidated dant was not bound to come to the Court bedamages, the under-sheriff has no jurisdic-fore the 4th November under the circumstances tion to try it, although the amount of it is less than 201., and the particulars stated to be for 71. 10s., and the Court set aside the writ, and all subsequent proceedings at the instance of the plaintiff, who had been unsuccessful on the trial, although be had procured the judge's order for the writ of trial. This was an action for damages consequent on the improper dismissal of the plaintiff by the defendant, three months sooner than by the agreement between the parties he was entitled. The particulars only claimed a sum of 71. 108. The plaintiff, with consent of the defendant, procured an order for a writ of trial, the case was accordingly tried before the undersheriff. A verdict was found for the defendant. An application was afterwards made n 2 Cr. & J. 143; 2 Tyr. 1: 8 Bing. 92; 1 Moo. & S. 199. o 1 Adol. & Ell. 191; 3 Nev. & Man. 346, P 3 Salk. 136. of the case. The decision in Hinton v. Stevens was distinguishable from the present. There, the Sunday was an intermediate day, but here, it was the first of the four days. The time did not begin to count until the 1st November, and, therefore, according to the rule laid down in that case, the application being made on the 4th November, was in due time, as the result as that case was that the application must be made in four days from the occurrence of the irregularity. Besides, the affidavit supporting the application, was served on the 3d November. Patteson, J., thought the case of Hinton v Stevens clearly analogous to the present, and therefore, that the Sunday must count in the four days, although it was the first of them. The rule must consequently be discharged, and with costs. Rule discharged, with costs.-Willis v. Ball, M. T. 1841. Q. B. P. C. * 4 Dowl. 493, O. S. Superior Courts: Common Pleas. - Cause List. 367 Common Pleas. INFANT-PROCHEIN AMY.-SECURITY FOR CUSTS.-COSTS OF RULE. Where it is sought to obtain security for costs from the next friend, in whose name an infant sues, upon the ground that he cannot be found at the address of which he is described, the proper course of proceeding is to take out a summons before the judge at chambers, for a stay of proceedings until his residence is properly pointed out. Mr. Serjt. Stephen had obtained a rule calling upon the infant plaintiff in this suit to shew cause why the proceedings should not be stayed unless security for costs was given by William Thompson, his next friend, by whom he sued, the ground of the application being, that no such person as William Thompson could be found at the residence of which he was de. scribed, and that the plaintiff's attorney had refused to give the defendant any further information by which Thompson might be found, saying that he was unable to do so. Mr. Serjt. Bompas now shewed cause, and contended, first, that the present rule was improperly drawn up, for that it should have called upon the infant to show cause why the appointment of his next friend should not be revoked; secondly, that the materials upon which the application was made were insufficient, for that it was not sworn that Thompson was in insolvent circumstances; and thirdly, that the defendant had improperly come to the court, for that the usual course which was taken, and which was the proper course, was to obtain a summons at chambers calling upon the attorney of the plaintiff to shew cause why proceedings should not be stayed, until he had given to the defendant such information as would enable him to discover the residence of the party in whose name the suit was conducted. Yurrorth v. Mitchell, 2 Dow. & Ry. | 423; and Watson v. Frazer, 9 Dowl. P. Č. 741, were referred to. Mr. Serjt. Stephen, in support of the rule, relied upon Mann v. Burthen, 4 Mo. & P 215, and urged, that it would have been absurd to take out a summons, calling upon the plaintiff's attorney to give that information which he had already declared his inability to afford. Per Curiam. The mere verbal application | to the attorney was not sufficient; the Court will not dispense with the summons. rule must be discharged. The Bompas then applied for the costs of the rule, upon affidavits contradicting those upon which the rule had been moved, and stating that the application had not been made to the attorney of the plaintiff personally, but to an individual accidentally in his office, who requested the applicant to wait to see the attorney, but who also expressed his belief that Thompson was resident at a particular house, which he described, and which had since proved to be the fact. Stephen, contra. Roades v. Prosser Clark v. Wormald Mynn v. Hart Pittom v. Howard Haddelsley v. Nevill Sheddon v. Idle Sicklemore v. Kingsford, at request of defendant Upjohn v. Penruddock Attorney General v. Webb-Ditto v. Godson Att. Gen. v. Lord Carrington, exons. & fur. dirs. Gardner v. Gardner, fur, dirs. and costs dillo Pettingal v. Pettingal, ditto Wilcocks v. Shelly, exons. CAUSES FROM THE MASTER OF THE ROLLS' COURT, APPOINTED TO BE HEARD Before Vice Chancellor Wigram. Perry (panper) v. Walker E. T. Hardcastle v. Cooper Crockett v. Crockett, fur. dirs. & costs Rule discharged with costs.-Hayes, an in- Liddle v. Carden-Ditto v. Simpson, fur. dirs. fant &c. v. Carr, H. T. 1842. C. P. Attorney General v. Brown, fur, dirs. 368 Parliamentary Intelligence.-Editor's Letter Box. Courtney v. Courtney-Sampson v. Ditto, exons. To amend the Law of Copyright. and ditto For improving the Law of Evidence. [For 2d reading.] Lord Denman. For the Amendment of the Law relating to Bankrupts, and the better Advancement of Justice in certain Matters relating to Creditors and Debtors. Lord Cottenham. Lord Mahon. [This, we presume, is the renewal of Mr. Serjt. Talfourd's excellent bill,-a very different affair from Mr. Godson's.] To amend the Law of Marriage. Lord F. Egerton. For the more effectual inspection of Houses, licensed at Quarter Sessions for the Insane. Lord G. Somerset. The letters of "Inexperiens;" "A Subscriber ;" and "Lector," shall be attended to. The conduct of the post receiving house, kept by a baker, should be represented to the secretary at the General Post Office. Booksellers or stationers should be appointed to [For 2d reading.] To improve the Practice and extend the Juris-receive letters. diction of County Courts. [For 2d reading] Lord Cottenham. To enable the Lord Chancellor to direct certain Proceedings in Bankruptcy, Insolvency, and Lunacy to be carried to the County Courts. Lord Cottenham. [For 2d reading.] House of Commons. NOTICES OF BILLS. To allow Writs of Error on Mandamus. The Attorney General. To alter the Law as to Double Costs, and other matters. The Attorney General. L., whose articles are dated 9th June, 1837, and were enrolled the following day, may of course be examined in Trinity Term, 1842, without any special application. We are obliged to defer several communications, and trust that during the Session of Parliament our correspondents will be as concise as possible. The Law Bills are increasing and multiplying. Cheshire. Undersheriff, Chas. A. Holland, Northwitch, Esq.; Acting Undersheriff, John Hostage Chester, Esq.; Town Deputy, Sharpe, Field, and Jackson, 41, Bedford Row. See List, p. 345, ante. The Legal Observer. SATURDAY, MARCH 12, 1842. " Quod magis ad Nos HORAT. APPELLATE JURISDICTION OF PRIVY COUNCIL AND HOUSE OF LORDS. We are now in possession of Lord Campbell's three bills for the reform of the judicial establishment in the House of Lords, in the Privy Council, and in the Court of Chancery, and we shall proceed to lay them fully before our readers. We believe that the scheme which is developed by them, although certainly not entitled to the merit of novelty for it has been recommended both by Mr. Burge and Mr. Miller-has not before assumed the shape of bills; and we are glad to have it in this shape, as the real difficulties of the subject will more easily be discovered, and the merits of the question can much more readily be discussed. We consider that it is not disputed that the appellate jurisdiction both in the Privy Council and in the House of Lords is in an unsettled and unsatisfactory state. Year after year, session after session, bills have been brought in, so that it will hardly be denied that some legislation on the subject was called for. It is curious that almost every law lord now in the Upper House has his own remedy for the evils. In 1834 Lord Brougham brought in a bill for transferring the House of Lords appeals to the Privy Council. The present Lord Chancellor proposed, in 1836, to appoint a second Vice Chancellor, and to let him preside in the Privy Council. Lord Cottenham, in 1840, proposed that the Master of the Rolls should preside, as of old, in the Privy Council; and, in 1836, that a Chief Judge in Equity should be appointed to be the permanent judge of the Court of Chancery, and that the Lord Chancellor should preside alternately in the House of Lords and in the Privy Council. Lord Langdale at the same time proposed that the appeal business of the Privy Council No. 707. VOL. XXIII. should be transferred to the House of Lords, other as necessity required. We have now the present three bills, by which it is proposed to transfer the business of the Privy Council to the House of Lords to extend the sittings of the House of Lords during the prorogation of Parliament; and to appoint a Chief Judge in Equity who should be a permanent Judge of that Court. BILL No. 1.- -TRANSFER OF JURISDICTION. By stat. 2 & 3 W. 4, c. 92, the Court of Delegates was abolished, and the ecclesiastical and admiralty appeals were transferred It is proposed by to the Privy Council. - this bill (s. 1) that all appeals heretofore made under 2 & 3 W. 4, c. 92, to the of Lords. By s. 2, that all appeals in prize Privy Council, shall be made to the House suits in the Courts of Admiralty or Vice Admiralty, or any other colonial Courts, which be made by virtue of the Judimay cial Committee Act (3 & 4 W. 4, c. 41), and all appeals in matters of lunacy which may be made from the Court of Chancery to the Pivy Council, shall be made to the House of Lords. The bill is as follows: 1. Whereas by virtue of an act passed in a session of parliament of the second and third years of the reign of his late Majesty William the Fourth, intituled An Act for transferring the Powers of the High Court of Delegates, 2 C |