The Sun.
London, England, 1845-11-05 00:00:00

QUEEN'S BENCH.-(THIS DAY.

Their Lordships sat at the usual hour this morning.
THE MAYOR OF EXETER v. HARVEY.

It appeared by the Counsel's statement of this case that it
was one which was tried at the last Devon Assizes, before
Mr. Justice Erle, when a verdict was had for the plaintiff;
and that it was an action brought by the Corporation of
Exeter against the Messrs. Harvey, who, it was alleged had
used a portion of the Exeter Canal in bringing up certain ma-
terials for the erection of a lunatic asylum, for the building
of which they were the contractors, and for such use of the
canal they became liable to the payment of certain tolls under
the Act by authority of which the canal had been made ; but
these tolls the Messrs. Harvey refused to pay. The Canal
Act was passed in 1829, but a considerable portion of the
works had been made before that time, having been com-
menced in 1825. The only question was,whether the portion
of the canal that had been used by Messrs. Harvey came
within the tide-way or navigable river.
• Rule generally granted.
PROTHERO V. JONES.

This case was tried at the last assizes of Carnarvon, and a
verdict had for the plaintiff, damages 23/. 2s. 7d., for work
and labour done, &c. Counsel moved to have the verdict set
aside, and for a new trial, on the grounds of misdirection and
the admission of inadmissible evidence. Counsel entered
into a long statement of the evidence, which involved a
rather complicated state of accounts between parties who
stood in the relative position to each other of landlord and
tenant.

Held over to consult the Learned Judge who tried the
Me.

COMMON PLEAS.-(THIS DAY.

ItILDERTON V. /ELLS.

Mr. Sergeant CIIANNEL replied at length against a motion
previously made by counsel to set aside a judgment obtained
in this case in the last Hilary term, and on which execution
had been issued for 1981. 14s. with costs, on the ground of
irregularity. The Learned Gentleman said the object of the
rule was first to impeach the judgment and execution on
the ground of irregularity; and secondly, to set them aside on
their terms. The complaint of the defendant was that a
judgment being signed execution was immediately issued
without any notice of taxation of cost being given to him.
This, in his opinion, did not warrant the application made.
The Learned Gentleman then cited a number of cases in
which similar applications had been made, wherein it bad
been ruled that the not giving notice of taxation of costs
after signing a judgment was not sufficient to warrant the
the setting aside of the same on the ground of irregularity.
Mr. Sergeant SHEE replied. He contended. that
no answer had been made to the affidavits put
in by the defendant. The judgment was not complete
until notice of taxation had been given. In
many instances this was the only notice given to a defendant
of judgment being signed agaM.st him. In the present case,
his client declared in his affidavit that he knew nothing what-
ever of the judgment till execution had been served against
him. This he (the Learned Counsel) submitted was quite ir-
regular, and was a good ground why the Court should make
the rule absolute. The Learned Gentlemen concluded by
citing several cases in which this view of the completion of
judgment was held to be the correct practice, and the neglect
of which was held to be sufficient for setting aside judgment.
The COURT decided that the rule be made absolute without
costs, aud_that a week be given to the defendant to put in his
pleas.

WILMHURST V. DALY AND MIMES.
Mr. Sergeant CHANNEL moved for a rule to set aside a
♦erdict obtained at the last sittings in London, before Mr.
Justice Erle, in which judgment had been obtained against
the defendant for a breach of contract. The contract was
for the construction of a steam-engine, which the defendant
engaged to furnish for the steam -ship Novelty, then lying in
the Last India Dock, at the sum of 8001. The terms of the
contract were here set forth by the Learned Gentleman, which
were that the engine should be delivered within two months
after the agreement was made ; that it should be executed
according to the plans and specifications produced, the same
to be approved of by a gentleman named for the purpose ;
and that 4001. should be paid in cash, on delivery of the en-
gine at the East India Dock, and the remainder in an ap-
proved bill at four months. The grounds on which the
verdict had been obtained were, that the engine had not been
constructed in time, or delivered, according to agreement, at
the East India Dock. Though the contract might not have
been literally fulfilled, it had, the Learned Gentleman con-
tended, been so virtually, and therefore the rule ought to be
allowed.—Rule refused.