1840. MORGAN with a view to their coming to their conclusion upon the subject, and upon their inspection of them they declared the plaintiffs to be in contempt. A very small portion of and Another them was embodied in the affidavits, and the Court would not consider sufficient the argument urged upon this of the case. part TINDAL, C. J.-Although this application is, in point of form, an application that the Master shall review his taxation of costs, the Court cannot but consider it in substance to be an application to alter the form of the rule entered into between the parties. The rule was drawn up after great consideration, and a draft of it was signed by counsel on both sides, and the only question is, whether the rule being taken to speak for itself, the Master has fallen short of the duty imposed upon him, on the taxation of costs? I am not able to say, after all I have heard, that this rule being interpreted in its terms, it is to be considered that the Master has been guilty of any default. Possibly, if the rule had been insisted upon by the defendant, not to be taken in its ordinary form, and if it had been framed in a different manner, its effect might have been different, but I think that it would be dangerous to say, that when it was drawn up in the ordinary terms, the Court ought now to interfere. BOSANQUET, J.-This is an application that the Master shall be required to review his taxation of costs, and the question is, whether, looking at the rule as it is drawn up, the Master has misapplied it? The rule is framed according to ordinary well-known expressions. The costs of the day are directed to be paid, and the costs of, and occasioned by the motion in this Court; and it appears to me, beside the proper object of this motion, to enter into the merits of the case which led the Court to decide that rule. Farther than that, however, it is to be considered, as it appears from a memorandum of the Master, the form of the MILLER and Another. 1840. MORGAN v. MILLER rule was on the 30th of May last, made the subject of discussion at the bar, and after a great deal of consideration, and Another the Court refused to grant the application, and the rule was drawn up in the form in which it now stands. I am not and Another. prepared to say that in applying the terms of this rule as he has, the Master has done wrong. The terms of this motion are, that the taxation should be reviewed, but the real substance is to alter the form of the rule. It is beside the question to do that, and I think that this rule must be discharged. COLTMAN, J.-I agree with the opinion expressed by the Court. If the defendant had intended to have anything out of the ordinary course, he should have taken care to frame his rule so as to meet the case. This rule, it seems to be admitted, if it was to be construed in the ordinary way, has been rightly construed, and that being the case, it would be introducing a principle of great laxity, if in consequence of some words which fell from the Court upon giving judgment upon a former occasion, we should now hold that the Master, who had nothing before him but the rule, had done wrong in following the terms of that rule. MAULE, J.—I am of the same opinion. It appears that an application was made on the 30th of May, that the terms of the rule should be varied, and that a direction should be given, how the rule was to be drawn up as to costs. A discussion took place then, but the rule was eventually drawn up in the terms in which it now stands. The parties are, in my opinion, to be bound by those terms. It is not denied that the rule, according to ordinary circumstances has been properly construed, and there is nothing in my opinion, which shews that the Court should put any other construction on it. Rule discharged, without costs. 1840. KENNY v. BISHOP. rule, A motion to aside THE Solicitor General shewed cause, against a Storks, Serjt., endeavoured to distinguish this case from those cited. TINDAL, C. J.-I think the decisions which have been referred to, form a sufficient answer to this motion, and shew that this is an informal and insufficient mode of taking advantage of such an irregularity as is alleged. I scarcely know what setting aside the copy is. Setting aside the service is more intelligible. (a) Ante, vol. 8, p. 231. (b) 5 M. & W. 605. Rule discharged, with costs. (c) Ante, vol. 8, p. 837; S. C. 1 Scott. New Rep. 417. set aside the copy of a writ of summons, on the ground of irregularity, is informal. 1840. Where the deed to lead Re WATKINS. STORKS, Serjt., moved for leave to amend a recovery in the uses is suf- the Court of Great Session, by adding to it the name of ficient to cover the parish of G. It set out the conveyance of lands in all the lands intended to be passed, an application to amend the recovery, by inserting the name of a parish under the 3 & 4 Wm. 4, c. 74, s. 8. Fines and Re coveries Act, is unnecessary. the parish of L., but an affidavit was produced, in which it was stated, that certain lands in the parish of G. were also intended to be passed. TINDAL, C. J.—I think the eighth section of the Fines and Recoveries Act, (3 & 4 Wm. 4, c. 74) renders the application unnecessary. That act provides, "that if it be apparent from the deed making the tenant to the writ of entry, or other writ for suffering a common recovery already suffered or hereafter to be suffered, that there is in the exemplification, record, or any of the proceedings of such recovery, any error in the name of the tenant, &c. in such recovery, or any mis-description or omission of lands intended to have been passed by such recovery, then and in every such case the recovery, without any amendment of the exemplification, record, or proceedings, in which such error, mis-description, or omission shall have occurred, shall be as good and valid as the same would have been, and shall be held to have passed all the lands intended to have been passed thereby, in the same manner as it would have done if there had been no such error, mis-description, or omission." In Totton v. Vincent, (a) the deed would not cover the defect, but here it does. It includes "all the lands in the county of Montgomery," and these sweeping words, coupled with the act of Parliament, render the application unnecessary. Rule refused. (a) 5 N. C. 626. 1840. MARRIOTT v. STANLEY. & 4 Vict. c. 24, s. 2, applies to all actions of tres pass, and tres pass on the case; and the exclude from its operation a Court will not case, where only 1s. damages has been given, for an from defendinjury arising ant's neglirently contrary to the justice gence, appa THIS was an action on the case, in which the plaintiff The statute, 3 sought to recover a compensation in damages, for a serious personal injury sustained by him, as it was alleged, in consequence of the defendant having wrongfully exposed to sale certain ploughshares, and other articles of the like nature, on a public highway, in the town of Peterborough, in Northamptonshire. The cause had been tried before Littledale, J., at the last Summer Assizes, where it appeared that the defendant, who was an ironmonger, had placed the articles in question upon the causeway opposite his shop, on a market day, and that the plaintiff, while driving his pony-cart past the defendant's house, was thrown out of the vehicle against the ploughshares, and severely injured in his knee. The bill for medical attendance, in consequence of the injury, it was proved, amounted to upwards of 20%., but notwithstanding the opinion of the learned judge, the jury returned a verdict for 1s. damages. An application was then made to the learned judge, to certify, under the second section of Lord Denman's Act, (3 & 4 Vict. c. 24); but although he was desirous of doing so, he expressed his opinion that he was prevented by the terms of the act, an opinion which was strengthened by that of the Lord Chief Justice, who sat in the adjoining Court, and whom he consulted upon the subject. Goulburn, Serjt., now moved for a rule, calling upon the defendant to shew cause, why the Master should not be directed to tax the plaintiff his costs, notwithstanding the absence of the certificate under the act. The effect of the new act was not to repeal the Statute of Gloucester, under which, the plaintiff was entitled to ask for costs. The provision of the Act of Victoria was, that if the plaintiff, of the case, the judge trying having refused to certify. the cause |