tinguished from a compensation for use and occupation. My Brother Williams thought, that, assuming the premises were not completed so as to entitle the plaintiff to claim rent under the agreement, the defendants might still have occupied under an implied agreement to pay so much as the occupation might be reasonably worth: and he so left the question to the jury. Bennett and his family resided in the house, and sold beer, with more or less success, for a period of six months. The defendants, therefore, had a beneficial occupation, for which they ought to pay.] There was no occupation at all, except under the agreement. The court intimated a desire to confer with Mr. Justice Williams; and now

JERVIS, C. J., said:-We have seen my Brother Williams. He says, that, if the defendants did not enter under the agreement, there was evidence whence it might be inferred that they, by their tenant Bennett, entered *under an implied agreement to pay so much as the *238] occupation was reasonably worth. And he reports to us that he was satisfied with the verdict. As we see no reason to find fault with the way in which the case was left to the jury, there will be no rule. Rule refused.

Ex parte CHILD. June 15.

A rule having been obtained for a habeas corpus to bring up a lunatic confined in an asylum in this country under Irish medical certificates,-the court discharged it with costs, there being no affidavit to show that the party promoting the application was duly authorized by the lunatic.

BYLES, Serjt., on a former day in this term, obtained a rule calling upon Francis James Lord to show cause why a writ of habeas corpus should not issue, to compel him to bring up the body of Captain Child, who was detained in a lunatic asylum at Hayes Park, Middlesex, kept by Lord.

The affidavits upon which the motion was founded, were those of one Mead, who described himself as the attorney for Captain Child, and who stated that the only certificates under which Captain Child was detained, were those of two medical practitioners in Dublin; and of Dr. Buchanan and Dr. Barnes, who deposed as to the present state of mind of Captain Child.

The learned Serjeant submitted that an Irish certificate does not justify the detention of a party as a lunatic in this country,-referring to the statute 8 & 9 Vict. c. 100, ss. 45, 46, 47, 117, and to the case of In re Shuttleworth, 9 Q. B. 651 (E. C. L. R. vol. 58).

Montague Smith, who appeared to show cause, objected that there was no affidavit showing that the application was made with the sanction of Captain Child, or that Mead had any authority to appear and act as his attorney. He referred to In re Parker,-the Canadian Pri

[*239

soners' case,-5 M. & W. 32,† where the Court of *Exchequer said," Before granting a habeas corpus to remove a person in custody, we must ascertain that an affidavit is not reasonably to be expected from him. An affidavit is absolutely necessary, either from the party who claims the writ, or from some other person, so as to satisfy the court that he is so coerced as to be unable to make it.

Byles, Serjt., admitted that his affidavit did not sufficiently show that the application was authorized by Captain Child.

JERVIS, C. J.-I think my Brother Byles has not put himself in a condition to ask for the writ. A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is. The rule must be discharged; and, as Mr. Lord has been put to the expense of coming here fruitlessly and unnecessarily, it must be with costs.

The rest of the court concurring, Rule discharged, with costs. Smith asked that the costs of the rule might be ordered to be paid by the attorney.

Curiam. We cannot do that.

Sed per Curiam.

*SIM v. EDMANDS. May 31.

[*240

In an action upon an award, the declaration alleged that certain differences between the plaintiff and defendant had been referred, and that the arbitrator had awarded that certain sums should be paid at certain times by the defendant to the plaintiff, and assigned for breach non-payment of an instalment. The defendant pleaded, setting out the award verbatim, and concluding in the form of a demurrer, "that the said declaration is not sufficient in law ;" and the plaintiff joined in demurrer :

Held, that the demurrer was informal,-the instrument as set out (since the Common Law Procedure Act, 1852) forming part of the plea,-and consequently there being nothing to show the declaration bad.

THE declaration, upon an award, stated, that certain differences existing between the plaintiff and the defendant had been submitted to arbitration, and that the arbitrator had awarded certain sums to be paid at certain times by the defendant to the plaintiff, and assigned for breach the non-payment of an instalment.

Plea, that the said award was and is in the terms following,-setting it out verbatim, and concluding in the form of a demurrer, that the said declaration is not sufficient in substance."

The plaintiff joined in demurrer.

Horace Lloyd, in support of the demurrer.-The award as set out shows that the plaintiff has no cause of action: it does not determine VOL. XV.-23

that any sum of money whatever was due and payable from the defendant to the plaintiff. [JERVIS, C. J.-Had you not better show first that you are in a situation to demur to the declaration? Under the old system of pleading, you might set out the document on oyer, making it part of the previous pleading, and then demur if the document so set out showed no cause of action, or no defence: but, by the 55th and 56th sections of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76,(a) pro*241] fert and *oyer are abolished, and documents set out are to be taken as part of the pleading in which they are set out.] In Wood v. The Copper Miners' Company, 14 C. B. 428 (E. C. L. R. vol. 78), the defendants had the benefit of an instrument set out in their plea as this is. [CROWDER, J.-There, the plaintiff demurred to the plea which set out the agreement.] If the demurrer be informal, the plaintiff might have gone to a judge at Chambers to have it set right, under s. 52,(b) instead of joining in demurrer. [Atkinson, Serjt.-If the plaintiff had not joined in demurrer, it would have been a discontinuance.] If the plaintiff had demurred to the plea, the demurrer having been struck out,-the same question would have been presented. [JERVIS, C. J.-If the plaintiff had gone to a judge at Chambers, as you suggest, the judge would only have done what we must now do.] The case of Jeffery v. White, 2 Dougl. 476, is to a certain extent in point. That was an action of trespass for taking cattle, to which the defendant pleaded that they were taken damage feasant: the plaintiff replied, a right of common: the defendant rejoined, stating by way of inducement part of a private act of parliament for enclosing the common, and an allotment by the commissioners of the locus in quo to the defendant, and traversing the right of common: the plaintiff prayed oyer of the act, and it was granted, and the whole act set forth, and then he demurred to the rejoinder, *assigning for cause that it was not *242] shown by the rejoinder that the allotment had been made according to the directions of the act as set forth: the defendant joined in demurrer. It was argued, for the defendant, "that a party is not entitled to oyer of acts of parliament, and that it cannot be granted, because they are not in the power of the court; and, for a similar reason, the party who relies upon them cannot make profert, because he has them not to produce: that the plaintiff ought to have pleaded the record of the act in a surrejoinder, and thereby have given the defend

(a) The 55th section enacts that "it shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading; and, if profert shall be made, it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document." And s. 56 enacts, "that a party pleading in answer to any pleading in which any document is mentioned or referred to, shall be at liberty to set out the whole or such part thereof as may be material, and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out."

(b) "If any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the court or a judge to strike out or amend such pleading, and the court or any judge shall make such order respecting the same, and also respecting the costs of the application, as such court or judge shall see fit."

ant an opportunity to take issue upon it: that, by the plaintiff's setting it forth upon the oyer, and then demurring, the plaintiff was precluded from that advantage, and the plaintiff enabled to state it in whatever manner he pleased: that the court, therefore, ought to consider the oyer and recital of the act as a mere nullity: and that, upon what appeared in the defendant's rejoinder, the allotment was regular, and therefore the defence was sufficient." For the plaintiff, it was admitted that oyer could not be compelled of an act of parliament; but it was inserted, that, as it had been in fact granted, the party who had demanded it was entitled to consider the whole of what was set forth as making part of his adversary's plea. And the plaintiff had judgment. [JERVIS, C. J.-Could you have pleaded that the arbitrator did not make the award, and then demurred?] Certainly not. [JERVIS, C. J. -Then, you cannot set out the award, and demur. There is nothing to show the declaration bad.] That is conceded. The course adopted by the defendant is informal: but, having adopted it, the plaintiff cannot now avail himself of the informality. [JERVIS, C. J.-The rule of pleading always was, that you could not demur to a declaration because the plea shows something which makes the declaration untenable,except in the case of oyer, when the document set out was taken to be part of the declaration. That is not so now. If you had concluded with a verification, the plaintiff might have demurred, or [*243 taken issue. MAULE, J.-The legislature did not mean to alter the substance of the law enabling a defendant to get the document set out in extenso, in substitution for the statement of it in the declaration. But, the statute has so far altered the rule of pleading, that it is subject to an allegation and to proof that it is the document alleged.]

PER CURIAM.(a)-The declaration, for anything that appears, is good. But we think the defendant ought to have leave to amend, upon the usual terms. Rule accordingly.

(a) The judges present being, Jervis, C. J., Maule, J., and Crowder, J.

END OF TRINITY TERM.

*244]

*IN THE HOUSE OF LORDS.

The MARQUIS OF BRISTOL and Others v. ROBINSON and Wife.

THIS was a writ of error upon a judgment of the Exchequer Chamber, reversing a judgment of the Court of Common Pleas in an action of quare impedit brought by the defendants in error to recover a moiety of the advowson of the church of Brauncewell-with-Dunsby-and-Anwick, in the county of Lincoln. Vide 11 C. B. 208, 241 (E. C. L. R. vol. 73). The case was argued in the House of Lords on the 21st, 23d, and 24th of February last, by Cowling, Baily, and Scotland, for the plaintiffs in error, and Bramwell, G. Hayes, and Brewer, for the defendants in

error.

At the close of the argument, the parties agreed to a compromise, and no judgment was pronounced.