Page images



Admiralty suits or proceedings. The following are the total: shown in the returns of the proceedings in Admiralty suits in 1870 in the County Courts and the City of London Court

City of

County Courts. London Court. 'Total number of Admiralty suits or proceedings 375

147 Arrents of vessels

114 Final decrees


63 Amount of claims

........... £28,345

£12,284 Amount of attorneys' costs allowed


£1,124 Amount of fees : Court fund......


£232 Registrar


£213 High bailiti


£19 Suits or proceedings pending


72 Aprenls


3 Warrants of execution..........


6 Vessels sold : Amonnt realised...


£34 Costs of sale

£15 Cases settled...

adjourned sine die
transferred to High Court of Admiralty

2 It is supposed that most of the cases given above as pending in the City of London Court have been settled out of court. It is stated also that in many instances the attorneys agreed upon the costs and settled the cases out of court, and that consequently they are not included in the return.

CITY OF LONDON COURT. Under the Act of 30 & 31 Vict. c. 142, which came into operation on the 1st January, 1868, the Sheriffs' Court of London was assimilated with the County Courts under the title of the City of London Court.

Proceedings for recovery of debt.-The following were the proceedings in this court for the recovery of debts in the year 1870 : Plaints entered

Cases from the superior courts ..............
Causes determiued :
With a jury

Without a jury

5517 Judgments : For plaintift

For plaintiff by consent or admission

For pliutitf by default

For defendant...

188 Judgment summonses : Issued............

767 Hear

22 Warrants of commitment: Issiled...

77 Debtors imprisoned

8 Executions against goods : Isened

1761 Sales made

21 Appeals

1 Orders to stay proceedings.

1 Certiorari to remove proceedings

3 Total amount for which plaints entered

. £60,595 On judgments obtained by plaintitis on original hearings : Amount of debts............

£24,790 Amount of costs... ..... Total amount of fees on all proceedings

£7138 Number of days of sitting

137 Equity jurisiliction. The following are the totals of the equity proceedings in the City of London Court under the different headings : Total number of equitable suits or proceedings

9 Number of plaints entered :

For ariininistration of estates
For the execution of trusts

For foreclosure or redemption, or enforcing any charge or lien..
For specific performance
For delivering up or cancelling any agreement for sale or purchase
For the dissolution or winding up of a partnership..


15 Number of petitions or notices filed:

For the appoiutment of removal of trustees
For any other purpose under Trustee Acts...
For the maintenauce or advancement of infants
For partitions

For injunctious
Number of instances of payments by trustees under sect. 24 of
30 & 31 Vict. c. 112..

3 Amount of subject matter in dispute or otherwise..

£3,906 Amount of attorneys' costs allowed

£62 Amount of fees : Payable to Consolidated Fund..

£22 registrars

£16 high bailifts

L5 Number of stits or proceedings pending on the 31st Dec.

2 Number of appeals

1 Numbers committed for contempt. Number of warrants of execution, possession, &c.

BOROUGH, HUNDRED, AND MANORIAL COURTS. The names of 26 local courts are given in the table, having jurisdiction for the recovery of debts. In 7 of these, in none of which proceedings were taken in 1869, no business appears to have been done in 1870 either. In two others only one plaint in each was entered in 1870, in one case for 4081., in the other for 29s. In one of these courts there were three plaints entered in 1869; in the other there were 20 in that year. In the Southwark court of record, in which there were no proceedings in 1869, 8 plaints were entered in 1870. For the Salford Hundred court of record 7950 writs were issued in 1870, for an aggregate amount of 97,5521., against 8301 writs, for an aggregate amount of 111,7231., in 1869. For the remaining courts the total number of plaints entered in 1870 was 4898, for an aggregate amount of 102, 1281., against 5845 plaints for an aggregate amount of 177,2861. in 1869, and 6031 plaints for 182,3201. in 1868.

The total amount of debts (exclusively) for which judgments were ob. tained in 1870, in the whole of the courts, inclusive of the Salford Hundred Court, was 72,7:281. ; the aggregate amount of costs, exclusive of fees, was 15,393! ; the aggregate amount of fees was 52341. These amounts for 1869 were, respectively, 105,2891., 16,8611., and 60411.

LORD MAYOR'S COURT. The proceedings of the Lord Mayor's Court, London, in the year 1870, are shown in the usual form in the return furnished by the registrar of the court, under the heads of proceedings of the court in actions, proceedings in foreign attachments, and proceedings on the equity side of the court.

(To be continued.)


(Continued from page 409.) Best on Evidence.-Willes J., in Reg. v. Briggs (Dearsly & Bell C. C. 102), characterised this as one of the best books on our laws. And Stuart, V.C., in Marriott v. The Anchor Rerersionary Company (8 Jur. N. S. 52), pronounced it "a very remarkable book.” See also the observations of Willes, J., in Hollingham v. Head (4 C. B., N. S., 391), and in Ex parte Fernandez (10 C. B., N. S., 40.).

Blackburn on the Contract of Sale.-" Another authority referred to entitled to great respect."--Bramwell, B., in Chinery v. Viall (5 H. & N. 294.).

Bracton.---Designated by Sir William Jones " the best of our juridical classics.” Treatise on Bailments, 75.

Brooke's Abridgment.-“High authority.”—Kelly, C.B., in Morton v. Woods, 38 L. J. 86, Q. B. As reported in L. Rep. 4 Q. B. 305, “great authority.”

Brydall Jura Corona, A.D. 1690.-Not of much authority in itself: (Sir Ronndell Palmer, Attorney-General, arguendo in Feather v. The Queen, 6 B. & S. 265.)

Bunhury's Reports.-Lord Mansfield, in Tinkler v. Poole (5 Burr. 2658,) said Mr. Bunbury never meant that those cases should have been published ; they are very loose notes. But Baron Platt, in answer to counsel who had cited this remark of Lord Mansfield's, observed : “ The authority of the note in Bunbury cannot be got rid of in the manner attempted; for, although Lord Mansfield, in the case of Tinkler v. Poole, cast some imputation on Bunbury's notes, the learned serjeant who edited them gives them a very different character, and it may be doubted whether the obser. vations attributed to Lord Mansfield were not the result of some hasty expressions on his part before he was fully aware of the value of the notes.” In his preface, Serjeant Wilson, the editor, says that the printed volume contains such cases only as the author took in court with his own hand, and are settled and corrected by himself from his notes. Baron Platt, after quoting this statement from the preface, proceeded : “These notes having been collected and published under such circumstances and by persons of such experience and learning, it certainly appears to me rather a rash proceeding to give them the cbaracter which Lord Mansfield is represented to have done. And since the expression of Lord Mansfield has been alluded to, I thought it right thus to bring before the court the character given to these very notes by the learned serjeant, who had the responsibility of publishing them, he himself bearing as high a character as any member of the bar :" Rey. v. Edwards (9 Ex. 51-53.)

Burn's Justice.-In Reg.v. Williams (Temple & Mew. C. C.241), a warrant issued by justices of the peace was held to be bad. Maule, J., observed : “ They follow the form in Burn's Justice ; but it is not the first form in that work which has been objected to, and decided to be wrong."

Campbell's Reports.-In a very recent case, Lord Cranworth, L. C., ob. served : “Although that was merely a dictum in a Nisi Prius case, yet on all occasions I have found, on looking at the reports, by the late Lord Campbell, of Lord Ellenborough's decisions, that they really do, in the fewest possible words, lay down the law, very often more distinctly and more accurately than it is to be found in many lengthened reports; and what is so laid down has been subsequently recognised as giving a true view of the law as applied to the facts of the case :" Williams v. Bayley (L. Rep. 1 H. L. 213.)

Carrington and Payne's Reports.—'Espinasse's Reports.-Of these two reporters, Blackburn, J., said : Neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood :" Rochead v. Midland Ruilway Company (8 B. & S. 401; 9 B. & S. 531 ; L. Rep. 4 Q. B. 388).

See 'Espinasse. Carter's Reports.-In Pennoyer v. Brace (Com. 411), Lord Holt disclaimed all knowledge of that Carter,” and would not allow his authority: (4 C. B. 592 note.)

Chalmer's Opinions of Eminent Lawyers.- Forsyth's Cases and Opinions on Constitutional Law.-In Phillips v. Eyre (40 L. J., N. S., 28, Q. B.), the Court of Exchequer Chamber allowed these works to be referred to as part of the argument of counsel, but not as possessing any authority, p. 29 n. (1).

Chitty's Archboll's Practice of the Court of Queen's Bench in Personal Actions and Ejectment.--" There is an admirable book,- Mr. Prentice's edition of Chitty's Archbold's Practice,-a most useful book,-one of the best books ever written.”-Martin, B., in Andrews v. Saunderson (3 Jur. N. S. 118, 119).

Coke's Fourth Institute.-" Holt said the Fourth Institute had not my Lord Coke's last hand ; the judges have not allowed that so much as the other parts; though the Second Institute be a posthumous work, yet is is more perfect.”-Rex v. Pain (Holt, 295).

Coke's Reports.-Mr. Justice Putnam thus expressed his opinion of Coke's style of reporting: “There was no necessity for the court to have decided the various matters which were resolved in the case; but if the readings and resolutions which we find in Lord Coke's Reports, which were not necessary for the decision of the particular case, were struck out, an immense proportion of the common law there digested and clearly stated would be lost, unless with infinite labour it should be collected trom Year Books and other black letter authorities. The extra-judicial opinions of Lord Coke, contain more of the common law than is to be found in the writings of any other reporter, before or since his time. His mode of reporting, however, should be considered as the exception to the general rule, rather than the one which should be adopted at this day.” Arnold v. Arnolil, 17. Pick. 9, 10, And Lord Mansfield remarked of the reports : “ My Lord Coke was very fond of multiplying precedents and authorities; and, in order to illustrate his subject, was apt, besides such authorities as were strictly applicable, to cite others, not applicable to the question under judicial consideration :” (Rex v. Cowle, 2 Burr. 858 ; see also Sugden on Powers, 22, note, 7th edit.)

Lord Coke himself thus states “the method the reporter doth use :" “I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the propositions and resolutions in question :” (Calvin's Case, 7 Rep. 4a.)

Comberbach's and Cartnew's Reports.--In Dyer v. Best (4 H. & C. 191), note, Pollock, C.B., referred to Clarke's Bibliotheca Legum, 355, where the authority of these reporters is impugned. Lord Denman, C.J., also, has

ابر سرير ابن |



said: Comberbach is very far indeed from being a reporter to whose doubt any importance should be attached. I remember hearing Lord Kenyon say so very early in my professional career. Lord Erskine, then at the Bar, founded an argument upon the remark of Lord Kenyon. He admitted its truth, but eaid that a sentence or two in the report which he then used were on that account of great weight, as they must have been really delivered by the court ; for, he said, they contained something like sense, and, therefore could not be Comberbach's own : (Newton's case, 13 Q.B. 726, and note.)

Crompton's Practice.-In Rolleston v. Scott (5 T. R. 372), Buller, J., remarked that many of the cases published in this book were hastily collected by himself before he was at the Bar, were never intended by him for publication, and were too loose to be relied on.

Dalison's Reports.--In Roe v. Nevill (11 Q. B. 471), note, Lord Denman, C.J., and Wightman, J., referred to the unfavourable mention of Dalison, attributed to Sir H. Hobart, in Sir Harbottle Grimston's preface to Cro. Eliz. (prefixed sometimes as in the folio 1669, to Cro. Car.) Wightman, J., also noticed the commendation by Sir Robert Wright (dated 1687), prefixed to Dalison's Reports, edit. 1689.

De Portibus Maris.-Patteson, J.: “ The treatise De Portibus Maris is, I suppose, the treatise of Lord Hale, notwithstanding what my brother Merewether has said on that subject :” (Regina v. Betts, 4 Cox C. C. 213.)

Dickens's Reports.-" It is scarcely necessary notice this case. The accuracy of Dickens's Reports is not to be relied upon, and this case is a remarkable instance of their inaccuracy:" Stuart, V. c., in Holland v. Hol. land, 20 L. T. Rep. N.S. 59.

Digest, The.--" The opinions of the great lawyers collected in the Digest afford us very great assistance in tracing out any question of doubtful principle ; but they do not bind us:" Blackburn, J., delivering the considered judgment of the Court of Exchequer Chamber in Appleby v. Myers, L. Rep.2 C. P. 660.

Dyer and Lord Raymond.--" There are a good many cases in the time between Dyer and Lord Raymond (1621-1694), (which may properly be called the middle age of the law) in respect to which one hardly knows what to say. They have been doubted and denied, and then again supported and qualified ; and in some instances there is a string of cases each way, so that it is difficult to say which is the best authority :" Judge Story. Letter to Siinon Greenleaf, Esq., 1819. Story's Life and Letters, vol. i. 328.

Emerigon (Balthazard Marie).—Traité des Assurances et des Contrats à la grosse, conféré et mis en rapport avec le nouveau Code de Commerce et la Jurisprudence ; suivi d'un Vocabulaire des termes de Marine et des noms de chaque partie d'un navire, par P. S. Boulay-Paty, 2 vols. 4to. Rennes, 1827.

In Ionides v. The Universal Marine Insurance Company, 10 Jur. N. S. 21, Mr. Justice Willes referred to this edition of Emerigon, and designated him as “ that most learned and experienced of lawyers."

'Espinasse's Reports.-In Small v. Nairne (13 Q. B. 814), Lord Denman said: "I am tempted to remark for the benefit of the profession, that ’Espinasse's Reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke's Reports." This remark is quoted by Coleridge, J., in Wenman v. Mackenzie, 5 El. & Bl. 453 : (see Carrington and Payne.)

Fuller, Thomas, D. D. Church History of Britain, 1605 Or 1606.—“A quaint but faithful historian :” (Sir Robert Phillimore in Martin v. Mackonochie, L. Rep. 2 Ad. & Ec. 179.)

Gale on Easements.-“ A very excellent book," said Lord Campbell, C.J., in Renshaw v. Bean, 18 Q. B. 124. * An excellent treatise,” said Lord Wensleydale in Rowbotham v. Wilson, 8 H. of L. Cas, 359. “A work of much ability,” says that first-class authority, the 6th edit. of Saunders's Reports, 2 Saund. 400 a.

Gibson (Edmund, Bishop of London).—Codex Juris Ecclesiastici Angli. cani ; or the Statutes, Constitutions, Canons, Rubricks, and Articles of the Church of England, methodically digested under their proper heads, with a Commentary, historical and juridical. 2 vols. fol. Lond. 1713; 2nd edit., 2 vols. fol. Oxford, 1761.

Lord Denman, C.J.: “It is needless to observe that that writer is rot to be considered as an authority. The passage is made up of extracts from cases decided in our courts, from which it will be found extremely difficult to deduce any rule of law whatever :" (Craven v. Sanderson, 7 Ad. & El. 894, 1838). Ten years later the Lord Chief Justice thus expressed his opinion of this writer : “ Bishop Gibson is a most remarkable authority in my opinion upon the subject. He was assailed by one of the most learned Judges who ever sat in this court, Sir Michael Foster, as one disposed to erect. the church into an imperium in imperio, a sacerdotal order which must in time absorb all the other powers in the state. Gibson wrote his invaluable treatise, the great storehouse of ecclesiastical law; and from that copying more ancient works, we derive all the evidence in favour of this application :" (Reg v. Archbishop of Canterbury, 11 Q. B. 658, 1818.)

In delivering the opinion of the Judges in the House of Lords, Blackburn, J. said of this book: “We cannot think it of any great weight as an authority on a question of law :” (Bishop of Exeter v. Marshal, L. Rep. 3, H. L. 37).

In the considered judgment of the Court of Common Pleas in a very recent case, Byles, J. observed : “A passage was cited from Gibson's Codex. But the authorities in the margin do not support the position. The opinion of Bishop Gibson, who, though 'an indefatigable compiler, was not a lawyer by education or profession, weighs little against the doubt of so profound a lawyer as Mr. Serjeant Hill:” (Ross v. Allcock, L. Rep. 3 C. P. 668.)

Greenleaf on Eviilence. The first volume “is to be regarded rather as a discussion and statement of the grounds and principles of proof in general than as a detail of the rules of evidence:" (Shaw, Č.J., in Commonwealth v. York, 9 Met. 106.)

Hale’s Plens of the Crown.-Very soon after the first edition of his Reports was published in 1763, Mr. Justice Foster retracted what he had said in that edition respecting Lord Hale's inaccuracy : (see p. xxxii. of the 3rd edit. (see also per Monahan, Attorney-General, arguendo in Reg v. Mitchell, 3 Cox C. C. 117.) “ Everyone who relies on Lord Hale should remember-first, that he corrected his MSS. only to the twenty-seventh chapter ; secondly, that Lord Hale 'not having always had leisure to consult the books themselves, had frequently copied from the misprinted quotations in the margin of Lord Coke's third volume of his Institutes ;' which also clearly shows that he had relied on Lord Coke's statements themselves. See the preface to Hale's Pleas of the Crown, pp. xi., xii. ;" 2 Russell on Crimes, 182 note, 4th edit.

A Treatise on the Law relating to Profits à Prendre and Rights of

Common. By JOHN EDWARD HALL, Barrister-at-Law. London:

Sweet. The last book on this subject was the treatise of the late Mr. Serjt. Woolrych, published in 1824, and its latest predecessor was a century old. But then the question comes, is there any and what new law upon it to supersede for practical purpose a work of such high reputation. Mr. Hall anticipates this query, and answers it by reference to the Prescription Act, by which the mode of proving rights of common has been greatly facilitated, and the decisions upon that admirable statute, the 3 & 4 Will. 4, c. 27, s. 36, which has abolished the old forms of real actions, in which the right to a profit à prendre could be contested, and he might have added the far more important Inclosure Acts. But this scheme he has preferred to exclude altogether, inasmuch as it has been amply treated of by Mr. Wingrave Cooke.

Having some small personal interest in the subject to which this volume is devoted we have looked at it carefully, and can commend it highly. It is not a mere thing of shreds and patches ; cuttings out of head notes, tied together by a clumsy thread, as is the character of too many of our modern law books. It is an essay, learned, and yet practical, in which the law is stated by the author, instead of being left to be eviscerated by the reader. It discusses, first, the nature of a profit à prendre, which is the right to take part of that which another man's lands naturally yield. It differs materially from an easement, although it is so often confounded with it, and as this difference should be carefully borne in mind, we extract the difinitions.

Easements differ from profits à prendre in that the former do notroonfer any participation in the produce of the soil.

The right to receive air, light, or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common; but the right to take something out of the soil is a profit à prendre, and not an easement.

Easement is a privilege that one neighbour hath of another, by writing or prescription, without profit; as a way or a sink through his land, or such like.

And again :

In order to distinguish a profit à prendre as opposed to an easement, the produce taken out of another person's soil must be something capable of ownership. Under the legislation of Justinian running water, aqua profluens, was considered a res communis, that is, a thing in which all mankind might have an interest, and which belonged to no man. By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. A similar doetrine prevails in the English law; it seems clear that water, unconfined in a vessel or cistern, is not the subject of property. Sir E. Coke says: “Also the waters that yield fish for the food and sustenance of man are not tby that Dame demandable in a præcipe; but the land whereupon the water floweth or standeth is demandable ; as, for example, viginti acras terræ aqua coopertas.Again, Sir W. Blackstone, after quoting a passage from Sir E. Coke, in which it is stated, that land, in its legal signification, comprehends waters, proceeds thus: “It is observable that water is mentioned here as a species of land, which may seem a kind of solecism; but such is the language of the law; and, therefore, I cannot bring an action to recover possession of a pool or other piece of water by the name of water only ; either by calculating its capacity, as, for so many cubical yards ; or by superficial measure, for 20 acres of water; or by general description, as for a pond, a watercourse, or a rivulet; but I must bring my action for the land that lies at the bottom, and must call it 20 acres of land covered with water. For water is a moveable wandering thing, and must of neces. sity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary property therein; wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immovable; and, therefore, in this I may have a certain substantial property ; of which the law will take notice, and not of the other."

The next question is whether certain rights recognised by law confer ownership in the soil of the land over which they are exercised, or are merely profits à prendre. The author then proceeds to consider the creation and transfer of this curious form of property; how far it may be lawfully enjoyed by licence; when it is claimed by virtue of a non-existing grant; of such as exist by prescription at common law; under the Prescription Act; by custom generally, and by customs growing out of copyholds. The custom of tin-bounding occupies an entire chapter; and then the writer turns to the law of common, comprising common of pasture, common appendant and appartenant, common by reason of vicinage, common in gross, of piscary, turbary, and estovers. The question so often mooted of the right to game is fully treated of in the 21st chapter. The next is devoted to corsideration of the suspension and extinction of profits à prendre, and this is followed by a very practical examination of a question of continual recurrence, the power of the owner of the soil to inclose and thereby to defeat the enjoyment of the commoner, and the right of the lord of a manor, with the consent of the homage, to grant the wastes thereof. In conclusion, Mr. Hall describes the remedies of commoners for infringement of their rights.

The extracts we have made are fair specimens of the author's style, concise, yet clear. And the above sketch of the scheme of his treatise will show how exhaustively the subject has been dealt with. It is a valuable addition to the law library, and may be consulted with advantage by landowners and commoners, who will find no difficulty in understanding the law as Mr. Hall has here expounded it.


[ocr errors]







[ocr errors]


[ocr errors]




[ocr errors]


[ocr errors]
[ocr errors]






[merged small][merged small][ocr errors]

ESTATE AND INVESTMENT pose being, first, with respect to value, that it question which I have been discussing however JOURNAL.

should be worth 101. a year; secondly, that the has been the subject of a decision in the Court of occupier should have been rated to the poor in Common Pleas, in the cases of Thompson v. Ward

respect of it. In the case of a dwelling-house and Ellis v. Burch (L. Rep. 6 C. P. 327) and it is STOCK AND SHARE MARKETS. there was a further requirement, as was finally necessary to consider what is the effect of that The following are the fluctuations of the week.

decided in the case of Cook v. Hunter (11 C. B., decision. Willes, J., in those cases held that

N. S., 33), viz., that it should be a complete house, structural severance is still necessary to constitute ENGLISH FUNDS. Fri. Sat. Mon. Tues Wed. Thu. structurally separate from all other buildings. a dwelling house within the Act. Such an inter

The first restriction seems to show that the tene- pretation however as pointed out by the other Bank of England Stock 240 241 241 238


ment was held to entitle the occupier to vote, as three judges renders the interpretation in sect. 61 3 ° Cent. Red. Ann....

911 3 Cent. Cons. Ann .. 927 927 92] 92]

implying the possession by him of a certain entirely nugatory, for though doubts had been New 2) Cent. Ann...

amount of property. To understand the effect entertained whether part of a house, though not Do. do. Jan, 1894.

of the second restriction it will be necessary structurally, severed, might not be a house, no Do. 33 ? c. Jan. 1894

to observe what was the law with respect doubt had been expressed that the term house Ney 3 Cent. Ann. 911 914 91 911 911 to rating. By the statute 13 Eliz. c. 2, it would include part of a house if that part was 50 Cents. % Jan. 1873

was provided that every occupier of a house structurally separate, moreover the expression of Annuities April 5, 1885

or of land should be rated to the poor, and many Erle, C. J., in Cooke v. Humber, that "a part of a Do. exp. Jan. 1880 Metropolitan Board of

cases decide that a house in that statute includes house cannot truly be said to be a house unless Works 35 * c. Stock.

part of a house, and that the occupier of one or the word house is used in two senses" seems to be Corporation of London

more rooms in a house, unless his landlord retains clearly referred to in the words “dwelling house 4 per c. Bonds...

a control over the whole, ought to be rated. This shall include part of a house," and I cannot Rad Sea Tele. Ann. 1908

is made abundantly clear by the preamble of doubt that the object of the 61st section was Consols, for Acc.. 923 927 931

93 India 5 P Cent. for Acc.

Sturges Bourne's Act (59 Geo. 3, c. 12), which was to alter in respect of the new franchise the Do. 5 Cents. July

passed expressly to obviate the difficulties arising rule of interpretation laid down in Cook v. Humber. 1880

1125 1125 1127 1125 112: from the fact that separate rooms were thus rate- Brett, J., while conceding that structural seve, India Stock, 1874

2075 2074 able as well as those springing from the frequent rance was not necessary, adopted the view I India 47 C. Oct. 1888 102 1021 1024 1027 ( 1028 changes in the occupiers of small houses-where, have above referred to, that the rooms did not India Stock, 5 # Cent.

however, the tenant of a house retains his constitute a separate dwelling, because they could Jan. 7, 1870 India Bonds (10001.)..


character of master of the house, although he not be used without the staircase. Such an interDo. (under 10001.)

258.a 233.a takes in a person to reside with him, and allows pretation is open to the objection that it also renEx. Bills, 10001...


him the exclusive possession of certain rooms, he ders the interpretation clause practically nugatory, Do. 5001.

is in law still the occupier of the whole house, and since it would be in the rarest cases that rooms Do. 1001. and 2002.

the person living with him, a lodger in the strict not structurally separated could be occupied with. 3 c. India Enfaced Paper

sense of the word, and not an occupier of his rooms out the use of some common staircase or passage. 5 B Cent. July 1880

within the statute of Elizabeth. Whether a per. I have already stated my other reasons for not Do. Jan. 1872

son does retain the character of master of the adopting this view. The Lord Chief Justice, and a Premium.

whole house is a question of fact depending upon Keating J., adopted the view which I have already

the terms on which he underlets the rooms, but explained as my own, but the Chief Justice threw REPORTS OF SALES.

primâ facie, and in the absence of special circum- out a suggestion that the case of Stamper v. OverNOTE. - The reports of the Estate Exchange are officially stances he will be held to do so, if he continues to seers of Sunderland (L. Rep. 3 C. P. 388), such supplied in the following list. Auctioneers whose names reside in a part of the house, but not if he does rooms ought not to be rated, and that the occuare registered there will oblige by reports of their own not do so. The law will be found to be laid down piers of such rooms were on that ground not ensales.]

as I have stated it in Smith v. Lancaster titled to the franchise and though in the case of Wednesday, Oct. 23.

(L. Rep. 5 C. P. 246), and the cases there cited. Ellis, who has been actually rated, this would proBy Messrs. Edwin Fox and BOUSFIELD, at the Mart. Such being the law of rating, it will be seen bably be immaterial, the case of Collins, whose Peckham-rye. Frechold house-sold for 1001.

that the requirement that a voter should be claim to be rated would be invalid, unless he was Creeds Cottage, freehold-sold for 33037. Rye Cottag freehold-sold for 3051.

rated in respect of the qualifying tenement entitled to be rated, renders it necessary to conAvenue House, with stabling, &c., freehold-sold for 8107. was in effect a requirement that he should sider what is really the effect of that decision Linden House, with stabling, &c.-gold for 9107. Freehold detached residence, with stabling and one acre of

occupy the tenement independently of the con- and the present law with respect to the rating of land-sold for 2001.

trol of his landlord, and not as a lodger. separate apartments. By the statute of Elizabeth Hopetown Lodge, freehold-sold for 6101.

Turning now to the Representation of the as we have seen, such apartments were rateable, Freelold villa, with stabling, &c.- sold for 1837.

People Act 1867, we see that the effect of sect. 3 and Sturges Bourne's Act which was passed to Ellwood Huse, with stabling, &c., freehold--sold for 6707. Freehold villa, with tablin, &c. *sold for 7301.

was to do away with the first condition-viz., that alter the law in this respect does not apply to Freehold residence, with cottage and large garden-sold for of value, where the qualifying tenement is a Parliamentary boroughs. ' A considerable number

10307. Plot of building land, containing la. 2r. 7p., freehold-sola dwelling house, leaving, however, the second con- of boroughs, however, obtained local Acts of

dition still in force. In the case of the new voters, similar import under which in those boroughs the Rotherhithe. Church-street, Nos, 10 and 41, freehold-sold therefore, the tenement can hardly be considered owners and not the occupiers of separate apartfor 2001. Thurulay, Oct. 26.

as implying the possession of property, but ments or houses below a certain size were rateBy Messrs. FAREBROTHER, LYE, and WHEELER, at the Mart. rather, since it is required to be a dwelling able, and a general Act called the Small TeneCity: , King William-street, No. 59, term 29 years-sold for house and the second restriction is retained, ments Act (13 & 14 Vict. c. 99) was also passed

as showing–First, that the occupier is the head under which the vestry of any parish could enter New Malden. No.1, Stow-villas, with garden and stabling, freehold--sold for 7801.

of a family, having a home of his own ; and, into special agreement with some or all of the secondly, that he hos that home independent of owners of small tenements within the parish to

the control of a landlord, and not as a mere lodger. rate them instead of the occupiers. At the time ELECTION LAW.

The requirement of structural severance which of the passing of the Representation of the People

may have had some significance where the house Act 1867, therefore, the law was different in difEXETER REVISION COURT.

was required to be of the value of 101. seems ferent boroughs, in some, as in the city of Exeter, (Before H. M. BOMPAS, Esq.)

obviously inappropriate where the tenement is only the old law continued, and the overseers were

considered in the light of a dwelling, and its con- bound to rate the occupier of a room or rooms Re John ELLIS AND JOHN COLLINS.

tinuance would have led to the inconsistency that unless his landlord by living on the premises or Occupiers-Structural severance-Rateability- while many occupiers of single rooms would have otherwise, retained the position of master of the Right to vote.

possessed the franchise, such rcoms being often whole house. In other boroughs the owner was In this case the Revising Barrister reserved structurally separate, very few of the class above always rateable, and the occupiers were not; while judgment, which he delivered follows :

-them who occupy two or three rooms would have in a third class of boroughs the law was different In the case of John Ellis, in which I reserved been entitled to vote. If we turn in the light of in different parishes, or even parts of the same judgment, the facts were these : He occupied two these considerations to the 61st section of the parish, the owners being rateable in rooms in a house which were not structurally sepa- Representation of the People Act 1867, we find parts of the borough under the Small Tenerated from the rest of the house, and in passing that dwelling house is defined as including any ments Act and the occupiers in others. By the from one to another of which, he used a staircase part of a house which is “occupied as a separate 7th section of the Representation of the People in common with the other tenants of the house ; dwelling," and "separately rated to the relief of Act 1867, it was provided in the first clause that, the other rooms of the house were let to another the poor,” that is, which possesses the two charac. “ where the owner is rated at the time of the passe tenant named Chambers. Ellis was separately teristics which, as we have pointed out, we should ing of this Act to the poor rate in respect of a rated for the rooms he occupied, and had paid the expect to be treated as essential in a tenement to dwelling house or other tenement situate in a rates, Several similar cases depend upon my deci. confer the franchise under the late act. And the parish wholly or partly in a borough in place of sion in this case. In the case of John Collins, the meaning of the section appears to be abundantly the occupier, his liability to be rated in any future facts were similar, except that he was not actually clear. It has been contended, however, that even poor rate shall cease ; in other words, in all rated for the rooms he occupied, but he had duly if this is the interpretation of the Act, the rooms boroughs in which, under a local Act, or from the claimed to be so rated under the provisions of the occupied by Ellis and the other persons whose cases adoption of the Small Tenements Act, the owner Reform Act, s. 30, which, if he was legally rate. I am now considering, are not occupied as separate was rated, such Acts were repealed so far as the able would have the same effect. These cases, dwellings, because the use of the staircase which right conferred by them to rate the owner was therefore, raise distinctly the question, what is the is used in common with other persons is essential concerned. The section then contains a general meaning of the 61st section of the Representation to their enjoyment. I think this, however, provision that, in all boroughs, for the future, the of the People Act 1867, and whether the occupiers is a forced construction of the facts in occupier and not the owner, should be rated. This of rooms in a house not structurally severed, are Stamper v. The Overseers of Sunderland (L. provision was necessarily made to apply to all occupiers of a dwelling-house within its mean- Rep. 3 C. P. 388) Byles, J. says of a similar boronghs, in order to prevent boroughs which at ing. The main object of the Representation occupier “he has the exclusive occupation of a the time of the passing of the Act, when under the of the People Act 1867, was to extend the particular room, and has a right to use the outer old law, subsequently adopting the Small Tene. occupation franchise, and to interpret the provi. door, the staircase, and other conveniences as ease. ments Act. Then follow the words which were the sions it is necessary to consider what was the ments appurtenant to his occupation.” The rooms subject of consideration in Stamper v. Overseers of existing law on that subject at the time it was which alone constitute the tenement are certainly Sunderland : “Where the dwelling honse or tenepassed. Under that law the right to vote de- occupied separately, and they are not I think the ment shall be wholly let out in apartinents pended upon the occupation of a tenement (the less occupied as a dwelling because certain ease- or lodgings not separately rated, the owner of value of the tenement being enhanced by easements ments are attached to them which are necessary such dwelling house or tenement shall be attached to it), but it was in respect of the tene. to their full enjoyment. Certainly, according to rated in respect thereof to the poor. It ment which was occupied as owner or tenant, and the ordinary use of language by which Acts of can hardly be doubted that the Legislature not of the easement, that the right to vote Parliament ought to be interpreted, Mr. Ellis would assume that overseers were in the habit of accrued. There were various conditions to be would be said to live in his two rooms, and they acting according to the law in the different fulfilled by a tenement to entitle its occupier to would be called his dwelling, he would not be said boroughs, and, therefore, the condition that the vote, the two principal ones for our present pur. to inhabit two rooms and part of a staircase. The apartments were not separately rated at the

[merged small][merged small][ocr errors][merged small]



passing of the Act would confine this provision decision, of course, is not binding upon the over- UNCLAIMED STOCK AND DIVIDENDS IN THE to the same boroughs or parts of boroughs to seers, and should any of them determine to rate

BANK OF ENGLAND. which the first part of the section was applicable, the owners and not the occupiers in accordance Transferred to the Commissioners for the Reduction of the and its effect would be to re-enact in their case so

National Debt, and which will be paid to the persons with what appears to be the opinion of Bovill, much of the local Acts or Small Tenements Act as C. J., the occupiers of such apartments, if they

respectively whose names are prefixed to each in three

months, unless other claimants sooner appear.] relate to apartments, leaving the occupiers of com. desire the franchise, have the remedy within their BACKETT (Sir Edwards, Bart, and BLACKETT, (Edward plete houses, however small, still rateable. It

Wm.), Esq., both of Matfen-hall, Northumberland, own hands, as they have then only to go to the 18331. 18. Sa. Three per Cent. Annuities. Claimants, suid has been suggested that this last clause may overseer and claim to be placed on the rate, and

Sir Edward Blackett, and Edward Wm. Blackett, Esq. have been inserted with special reference to the tendering him the rates (if any) that are due, and MoXCKTON (Anne). Stretton, Staffs.,

widow, 7067168 sd. Three per Cert.

, Anne franchise, and in order to prevent persons who they will then be in the same position with respect Monckton. only occupied part of a house from voting except to the franchise as if they had been actually Smith Rev. Richard Carter), deceased, of Charlton, Kent: as lodgers ; but it appears to me impossible to rated.

clerk; COLLETT ( Rev. Wm. Lloyd), Shepherd's-bush, Mid. suppose that the Legislature should have, with

dlesex, clerk; and BARNEY (Stephen), Esq., Inner Temple,

E. C., one dividend on the sum of 2201. Reduced Three such an object, have enacted a section will give

per Cent. Annuities. Claimants, said Rev. Wm. Lloyd the occupiers of such apartments a right to vote THE BENCH AND THE BAR.

Collett and Stephen Barney, Esq., the survivors. in some boroughs, such as the City of Exeter, and no right to vote in others and which in some


WINDING-UP ACTS. boroughs will give to persons occupying rooms in one part of the town a right to vote, and to per on Thursday at noon the Lord Chancellor received POLTESCO MARBLE Company Limited.c. Petition for wind


Evans's (Covent-garden) (Limited.) Petition for winding-up

to be heard Nov. 10, before V.C. M. sons occupying similar rooms in another part of the town where the Small Tenements Act her Majesty's Judges at breakfast, according to ing-up to Nov. 10, before happened to have been adopted, no such right. custom on the first day of term. Their Lordships It may be true that in some boroughs the arrived in the following order :-Baron Bram. CREDITORS UNDER 22 & 23 VICT. c. 35. section will in fact disfranchise the occupiers of well

, Mr. Justice Blackburn, Mr. Justice Mellor, Last day of Claim, and to whom Particulars to be sent. parts of a house, but I cannot

Mr. suppose that

Justice Hannen, Baron Cleasby, Mr. ATTWOOD (Francis), Esq., The Close of the Canons of the was the object of the clause.

Cathedral Church of Sarum, Wilts, Nov. 20; Macdonald The natural Justice Brett, the Lord Chief Baron (Kelly), Mr.

and Brodrick, solicitors, The Close, Salisbury. interpretation appears to me to be the true one, Justice Lush, Chief Justice Bovill, Lord Justice

Bailey (Rev. Wm. P.), Rector of Great Waldingfield, Suf. that the clause was intended to mitigate the hard James, Mr. Justice Byles, Mr. Justice Keating, folk. Nov. 10; F. Leach, solicitor, 10, Lancaster-place,

Strand, Middlesex, W.C. ship of casting upon parishes the duty of rating Vice-Chancellor Sir J. Malins, Vice-Chancellor Sir

BARROW Edwd.). Wedmore, Somerset, surgeon. Dec. 23 ; all occupiers of tenements, however small, and to J. Bacon, Vice-Chancellor Wickens, the Queen's

Wm. c. Barrow, 2, Pavia-place, Park-road, Dalston, continue to those parishes, which at the passing Advocate, Sir Lawrence Peel, Baron Martin, Middlesex. of the Act had a right to rate the owners of small had also the honour of being present. and Mr. Justice Willes. A large number of Q.C.Š BENNETT (Chas.), 107. High-street, Croydon, Surrey. G. H.

Hogan, solicitor, Park-street, Croydon. tenements, and exercised that right, the privilege breakfast their Lordships proceeded to open their

After BURN Es Capt. Sydney H.), 21, Sale-street, Paddington. of doing so in the case of apartments, in the case

Middlesex, a captain on the Bombay Staff corps. Dec. 31; of which it would be especially difficult to rate respective courts. There was about the usual

E. A. Crosse, solicitor, 4, Bell-yard, Doctors'-commons,

E.O. the occupiers. I should have no doubt as to the gathering of the public in Westminster Hall to

CARRINGTON (Samuel), Esq., 8, Pittville-lawn, Cheltenham. above interpretation of the 7th section of the witness the ceremony. The business of the term Jan. 1, 157?; F. and E. Griffiths, solicitors, ?, Crescent.

place, Cheltenham. Representation of the People Act 1867, but for the commenced about mid-day.

CHAMBERLAIN (Edwd. H.), Esq., 7, Norfolk-street, Park. case of Stamper v. Overseers of Sunderland, and

lane, W., Nov. 30; Pyke and Co., solicitors, 13, Lincoln's.

inn-fields. WC. the interpretation put upon that case in Ellis v.

CHIVERS (Ann), Devizes. Dec. 1; H. Kent Norris, solicitor, Burch by Bovill, C.J., who was

one of the

Devizes. judges who decided it, and who says that it de.

COTES (Manuel M.), Lima, Peru. Dec. 1; Clarke and Co.,

solicitors, 28, Coleman-street, London, E.C. cided that persons such as those whose cases I

CRUIKSHANK (James), 23, Grove-road, St. John's-wood, N.W. am now considering ought not to be rated. On


Nov. 20; Waller and Handson, soicitors, 27, King-street, examination it will be found that the decision PRACTICE-DISMISSING BILL-FATHER AND

Cheapside, E.C.

Cruse Richard , 373. City-road, E.C., and 3, Joiner's-hallin Stamper v. Overseers of Sunderland is perfectly Son — Costs — SOLICITOR AND CLIENT_TRUS- buildings, E.C., gentleman. Dec. 13; 0. W. Stevens. consistent with the view of the section which I TEES.- - Where a bill filed by a son against his solicitor, 35, Buckler bury, E.C. have expressed, for the rooms there in question father to set aside a voluntary settlement made

Davies Martha M. H.). 7. Brompton-square, Middlesex.

Dec. 3; J. Aitkens, solicitor, 15, Lincoln's-inn-fields, W.C, were in a borough in which under the Small Tene- by the son in favour of the father is dismissed DAWE Sampson R.), Ca tla--street, Swansea, Glamorzun. ments Act the owners were rated instead of the with costs, the court will only give costs generally chemist. Dec. 20; J. Jones, solicitor, 7, Fisher.street, occupiers, and the court decided that the section as between solicitor and client. But where trus

EDlix (Wm.), Broadwater Farm, Harefield, Middlesex, applied to such a case, and that the owner must tees are improperly brought before the court, they

Nov. 20; Woodbridge and Sons, solicitors, continue to be rated; the contention of the re. will be entitled, as against the plaintiff personally,


Wm.', Esq., Bowdon-ball, within Bowdon, spondent, which was overruled by the court, was to their costs as between solicitor and client, and

Chester. Dec. 16; Cunliffe and Leaf, solicitors, 26, Brownthat the clause applied generally to apartments will not be left to take the difference between street, Manchester. which, from their character, were not rateable party and party costs and solicitor and client costs

FRASER Jas. W., Esq., 8A, Kensington Pala e.gardens,

Middlesex. Nov. 30; Milne and Co., solicitors, 2, Harcourt. under the statute of Elizabeth, being, in fact, out of the trust fund : (Turner v. Collins, 25 L. T. buildings, Temple, E. C. occupied by lodgers, and the court clearly pointed Rep. N. S. 264. V.C. M.)

GAMBLE Geo. S., Esq., Thwaite, Norfolk. Nov. 30: White out that such an interpretation would render the DEMURRER - CREDITORS' DEED – PARTIES

and Co., solicitors, 6,, Middlesex.

GRIFFITHS (Elizabeth), 1, Havelock-villas, Landsdown-road, clause nugatory. The only authority against the ALLEGATION.-A bill filed 1871 alleged that, Croydon, Surrey. Nov. 30; Geo. H. Hogan, solicitor, views I have expressed, therefore, are the expres. previously to a debtor's conviction for felony, by | HOBLite Calicia 19." A.', 10. Cavendish-crescent, Bath.

Park-street, Croydon. sions used by the judges in that case and the dic. an indenture made in 1862 between himself of the Nov. 30; Carlisle and Ordell, solicitors, 8, Nuw.square, tum of Bovill, C. J., in the case of Ellis v. Burch. first part, a trustee of the second part, and the Lincoln's-inn, W.C. The question whether the section applied to several other persons whose names and seals wero

HOOPER Rowland), Esq., Heston-house, Heston, Middlesex.

Nov. 20; Deane and Chuub, solicitors, 14, South-square, boroughs which were still under the old law, was or were intended to be thereunto subscribed and

Gray's-inn, W.C. never brought distinctly before the court; and set, being respectively creditors of the debtor, of LITTLE John D., Biddestone. St. Nicholas, near Chippen. with all respect for the opinions so expressed, I the third part, the debtor assigned all his per

ham, Wilts, gentleinan. Nov.27; Keary and Co., solicitors,

Chippenham. do not think I should be justified in deciding con.

sonal estate and effects to the trustee upon trusts LODDER (Thos.), 30, Devonshire-road, Holloway, Middlesex. trary to what appears to me the plain meaning of in favour of his creditors; and that the said in. Dec. 7; Coode and Co., solicitors, 7, Bedford-row, W.C. the Act of Parliament, because of opinions ex. denture was duly executed by the debtor and the

LYON (Mary), 2, Derby-place, Southport, Lancaster. Jan.

1; F. and E. Griffiths, solicitors, 2, Crescent-place, Chelten. pressed by the judges upon a question which had trustee, and registered under the 194th section of ham. not been argued before them, and was not in the Bankruptcy Act 1861 ; and the bill prayed for MCLACHLAN (Colin B.), Esq., Baddow, Esser. Dec. 11; volved in the cases before them. I am of opinion a declaration that the defendant, who had, in Martin (Jane H. ; 58: "Manor-street, Clapham, þurrey.

J. F. Holmes, solicitor, 9, Finsbury-place-south, E.C. therefore that Mr. Collins ought to have been 1858, purchased a house in trust for the debtor, Nov. 30; Geo. H. Hogan, solicitor, 23, St. Martin's-lane, rated by the overseers, and that having duly was a trustee of the house in question for the

Cannon-street, E.C. claimed to be rated, he is in the same position as


Esq., Lewisham-hill, Blackheath, Kent. trustee of the deed. On demurrer, for want of

Nov. 29; C. W. Davis, jun., solicitor, 24, Charles-square, if he had in fact been rated, and is entitled to equity and of parties : Held, that the bill con. Hoxton, Middlesex. have his name retained on the register. In con- tained no sufficient allegation that any creditor

MEYER (Philip H.), Esq., Stondon House, Stondon Massey, clusion, I wish to call the attention of the over had executed or assented to the deed: Held also,

Essex. Dec. 17; G. Norcutt, solicitor, 11, Gray's-inn

square, Middlesex, W.C. seers, who may be present, to their duty in re- that the lapse of time since the execution of the MORRISON (Dame Jane), Snaresbrook, Wanstead, Essex. spect to the rating of occapiers, if the above views deed was a complete bar to its being treated as

Dec.; J. F. Weymouth, solicitur, 19, Essex-street,

Strand, W.C. are correct. Their duty is not to inquire of an act of bankruptcy. Demurrer accordingly MorTIMER Rev. Geo. F. W.), Eccleston-sqnare, Middlesex. the landlords or agents who are their tenants, allowed, without leave to amend, doubt being ex.

D.D. Dec. 13; Mackenzie and Co., solicitors, 1, Crown

court, Old Broad.street, E.O. but to go to each house and ask who pressed as to whether the registration of the deed MOSENTHAL (Jos.), 18, King's Arms-yard, E.C., and St. lives in the different rooms, and to whom they pay under the 194th section of the Bankruptcy Act Gerinain Laurie park, Sydenhamn, Kent, merchant. Dec. their rent, and they should then put upon their 1861 would have the effect of rendering it irre.

10; A. Mosenthal, 18, King's Arms-yard, Moorgate-street,

E.C. rate-book every person who occupies a vocable by bringing it within the operation of the NOYES (Sarah), 13, Christchurch-road. Brixton, Surrey. or rooms, rating each separately in respect of the provisions of the 187th section of that Act : (Glegg

Dec. 1; Van Sandau and Cumming, solicitors, '13, Kingroom or rooms they occupy, unless the person to v. Rees, 25 L. T. Rep. N. S. 261. Rolls Ct.)

street, Cheapside.

PERRY (Stephen), Needham-market, Suffolk, gentleman. whom they pay their rent keeps the character of STATUTE 27 Eliz. C. 4-CONSIDERATION- Dec. 2; Hayward and Sons, solicitors, Needham-market, master of the house, when they will be only VOLUNTARY SETTLEMENT-LOAN.-Suit insti.

Suffolk. lodgers and must not be rated, but the person to tuted by a mortgagee seeking to set aside a settle

Piggott (William H. ,32, Corn-street, Bristol, and Florence

villa, Tyndall's-park, Bristol, tailor and diaper. Dec, 1; whom they pay their rent must be rated for those ment made previously to the mortgage, on the A. H. Wansey, solicitor, 21, Clare-street, Bristol. rooms as well as any he occupies himself; the ground that it was voluntary. At the time of REEVES (John) Bewdley: Worcester, gentleman. Jan. 1,

Marcy, general rule being (in the absence of any special making the settlement, a friend of the settlor ad. Rortos (Henry B., Esq., 21, Eccleston-street, Middlesex. circumstances) that if the person to whom they vanced him 1501. on his promissory note, which Dec. 10 ; Wadham and Daw, solicitors, 19, Essex-street, pay their rent resides on the premises, he is to be enabled him to meet some pressing demands, and

Strand, W.C.

SAUNDERS (William B.), 7. Valentine-row, Blackfriars-road, oonsidered as being master of the house, rated at the same time persuaded him to make the Surrey, bacon dryer. Dec. 10; W. Easton, solicitor, for the whole, the under tenants not being rated, settlement in question on his wife and children. 13, Clifford's-iun, Fleet-street, E.C. but treated as lodgers; while if he does not reside The only consideration expressed in the settle: SMITH Edward H.), Esq., Dover. Dec. 1; Andrews and

Pope, , -street, in the house the occupiers of the different rooms ment was “divers good causes and considera. SPAIN (Nancy), št. Bartholomew's, near Bandwich, Kent. are to be each separately rated for their rooms in tions.” Held (affirming the decision of James

Dec. 6; surrage »nd Emmerson, solicitors, Sandwich. the manner I have described above. If it be V.C.), upon the evidence, that the loan was the

STOPFORD Mary E.), Laxton Villa, Cheltenham. Jan. 1,

1972: Brydges and Mellersh, solicitors, Public Ottices, said that this will entail great additional labour consideration for the settlement, which, therefore, Cheltenham. on the overseers, it must be remembered that the was not voluntary. The smallness of the consider: UPTON (Thomas), West-end terrace, East Dereham, Norfolk, vestry in any parish may make an order under the ation for a settlement is not a matter into which

carpenter. Nov. 30; Tatham and Proctor, solicitors, 36,

Lincoln's inn flelds, W.C. recent Act (32 & 33 Vict. c. 41), s. 4, and the owner the court will go, except so far as it is evidence WADE (William Thomas). Great Dunmow, Essex, solicitor. will then in all cases be rateable without the that the transaction was a fraudulent one: (Bays. WiNSOR John), Ivybridge, Devon, paper inaker. Dec, 320 ;

Dec. 31; Wade and Knocker, solicitors, Great Dunnos. occupiers losing their right to the franchise. My poole v. Collins, 25 L. T. Rep. N. S. 282. Ch.) Wedlake and Letts, solicitors, 3, Mitre-court, Temple, E.C.

[ocr errors]



The COURT ruled that the convictions were ad- Dighy Seymour complained of the harsh manner

missible, to prove the character of the persons in which defendant had been treated in not being CAMBRIDGE COUNTY QUARTER SESSIONS. frequenting the house ; and after hearing counsel allowed to have the matter investigated in the

on both sides, they dismissed the appeal with costs. usual way before a taxing master, to whom he Friday, Oct. 20.

could and would have given his own version of (Before A. SPERLING, Esq., and other Justices.)


the affair. That the defendant should have been HANDLEY 0. JUSTICES OF CAMBRIDGESHIRE.

prosecuted at all was attributed to a vindictive

THIRD COURT. Public-house appeal-Wilfully permittiny drunken.

feeling on the part of his client in consequence of ness-Refusal of licence- Evidence.

Wednesday, Oct. 25.

the small amonnt of damages obtained in comUpon an appeal against the refusal of magistrates (Before Mr. CHAMBERS, the Deputy Recorder.) parison with the claim (30001.), and of the heavy to grant a licence to the appellant upon the

costs incurred. Witnesses were called, who gave the Charge of perjury against a solicitor--Swearing ground that he had wilfully permitted drunken. affidavit of increase-Witnesses unpaid.

defendant a high character for honesty, integrity, ness in his house, it was held that evidence of Mr. Harry Greville Tanner, a solicitor, surren

and veracity. It was also proved by some of the what took place outside the house was admissible dered to recognizances to answer an indictment medical witnesses in the action that, although to show what kind of persons used it that, convic- charging him with wilful and corrupt perjury. He they had not received their fees at the time the tions against persons for drunkenness who were was also charged with having obtained 2361. from affidavit was made, they had since been paid in full, seen coming drunk from the appellant's house the South Eastern Railway by false pretences, and that they would have looked to the defenwere evidence against him as tending to show and with intent to defraud, and also with having dant's cousin, Dr. Tanner, to pay them if he had that he wiljully permitted drunkenness within, ootained from Sir Frederick Pollock, one of the failed to do so. They expressed it as their belief although no proof was alleged, of any supply of Masters of the Court of Exchequer, a warrant for that the prisoner had no intention to defraud drink to drunken persons in the house. Lastly, the payment of 2001. 14s. 8d., and a certain them in the matter. that it was not necessary to show that the appel- | valuable security.

The jury returned a verdict of not guilty, and lant had been convicted of any offence against G. Denman, Q. C. (Willis with him), for the pro- being understood to express his opinion that the

the defendant was discharged, the Deputy-Recorder the tenor of his licence, and it was discretionary secution. in the magistrate to grant or withhold it.

Digby Seymour, Q.C. and F. O. Crump, for the defendant had not acted corruptly in the matter, This was an appeal by John Handly against the defence.

but that the utmost of which he was guilty was refusal of certain justices of Cambridgeshire to Denman stated that the defendant, Mr. Tanner,

an inadvertence. grant him a licence upon the ground that he had had been employed for the plaintiffs, a Mr. Day wilfully permitted drunkenness within his house. and his wife, in an action against the South

Bushi Cooper (specially retained) and J. W. Eastern Railway for injuries sustained in a col. REAL PROPERTY AND Cooper were for the appellant.

lision on their line, in which the plaintiffs obtained Moyd and Browne for the respondent justices. a verdict, with 3001. damages. It was afterwards

CONVEYANCING. -The magistrates had refused the licence upon the duty of the present defendant, Mr. Tanner, the annual licensing day in August, upon the re- to claim the costs due to the plaintiffs from the

NOTES OF NEW DECISIONS. port of P. C. Martin, who stated that upon seven company in respect of the attendance of wit. CONSTRUCTION OF SETTLEMENT—"ELDEST" occasions he had seen drunken persons whom he nesses and to travelling expenses, and to pro- OR “ONLY” SON-PERIOD OF VESTING.-By a named leave the house. He also admitted that cure the Master's allocatur. The cause was marriage settlement certain real estate was limited upon twelve occasions when he went into the originally set down for trial at Kingston, to the use of tho hasband for life, with remainder, house he saw drunken men there on one occasion but was eventually tried at Westminster. The subject to a jointure for the wife, to the use of only, and even upon that visit no beer was sup. costs were taxed on the 24th July, and he ob- the first and other sons in tail male. By another plied to them. The appellant produced rebutting tained Master Sir Frederick Pollock's allocatur settlement, reciting that referred to, real estate evidence at the hearing of the appeal, but at the for 2361., which sum was made up in various ways. of the wife was limited to her use for life, with court below was not represented, nor was the The charge of perjury turned upon the affidavit of remainder to the use of all and every the son case allowed to be reopened at the adjourned increase which the defendant inade in the cause, and sons, other than and except an eldest or meeting.

and in which he set ont various sums that he only son, and daughter and daughters of the Bush Cooper took the objection that the refusal alleged he had caused to be paid to witnesses for at marriage, in equal shares às tenants in common, to grant the licence was not made upon a legal tendance and travelling expenses. The case against and to the heirs of their respective bodies. And ground or by legal evidence. Licences were the defendant was that in a majority of instances it was thereby provided that if any one or more granted by the magistrates upon certain condi- he had not paid the sums he had deposed to having such younger son or sons, or daughter or daugh. tions, and once a licence was granted, the magis paid, nor any part of such suins. He (Mr. Den- ters, should die, and there should be a failure of trates had no power to refuse its renewal, except man) believed that altogether 601. or 801.

, which issue of his or her body, or in case any such upon a legal ground. In this case the publican the defendant had sworn to have paid by antici- younger son or sons should become an eldest or had not been convicted of, nor had he committed, pation, he had not paid at all.

only son before twenty-one, then the share or any legal offence against the teror of his licence. Formal proof was given that on the 4th Aug. shares of such younger son or sons so becoming The offence was wilfully permitting drunkenness 2361. was paid to the defendant in the shape of an eldest son as aforesaid, should go over to the within his house, and evidence of what occurred taxed costs in the case of Day and Wife v. The use of the survivor or others or other of the said outside the house was inadmissible, nor would it South-Eastern Railway Company. The affidavit younger son or sons, daughter or daughters, as prove, if admitted, any offence.

of increase was also put in evidence to which the tenants in common in tail. E., the eldest son, Mayd submitted that the evidence was admis- | defendant had sworn. It related, among other attained twenty-one, but died after his father but sible to show the general character of the cus- things, in a circumstantial way, the various sums before his mother, without issue: he left surviving tomers. If drunken persons came out of the house he had paid to the several witnesses for attend. J., his brother, and two sisters, J. died after it was evidence to show they got drunk there, or, ance and travelling expenses. The 2361. included twenty-one, before his mother, and left an infant at least evidence as to the characters admitted by all the various sums alleged to have been paid to On the mother's death part of her real the landlord.

the witnesses, and it was paid in the full belief estate was sold, and the purchase money was Bush Cooper, in reply, submitted that the police that the defendant had paid those sums.

paid into court under the Trustee Relief Act. were bound to complete the case, and show a legai Robert Boys, a witness on the trial at West. On a petition of the two daughters for payment offence to have been committed. They had the minster, proved that he had not received 21. 2s. of the whole to themselves, it was Held (affirm power to enter the house at all times, why dd for two days' attendance at Kingston, or 7s. for ing the decision of the Master of the Rolls), that they not do so? He also objected to the con mileage, nor any part of those sums ; nor had he the proper time for ascertaining the class entitled victions of any persons named for drunkenness received 31. 38. for attendance at Westminster, or to participate in the fund was the period of disbeing put in. These convictions could not pro- 3s. 6d. for mileage. He had applied to the defen. tribution, and consequently the second son was perly be evidence against a third party.

dant at judge's chambers for the money due to excluded. The gift over contained in the settloMr. C. W. Palmer, magistrates' clerk, produced him. He replied he could not pay, and that he ment could not legitimately alter the construction the following convictions : David Watts convicted was to apply to Mr. Day, one of the plaintiffs in of the gift itself: (Re Bayley's Settlement, 25 19th Feb. 1870, for drunkenness, and fined 58. the action.

L. T. Rep. N. S. 219. L.JJ.) Bush Cooper objected to this as too remote, but Henry Amer was called, and proved that he WILL-LIMITATIONS-TENANCY IN COMMON it was admitted.

had not been paid 11. 10s. for attending as a wit

--CROSS-REMAINDERS. A testator gave his Mr. Palmer continued : Watts was convicted ness at Kingston, or 7s. for mileage, or any part of residuary personal estate to trustees, upon trust on the 23rd April 1870 for drunkenness, and com. those sums, nor had he been paid 21. 58. for to invest in the purchase of land, which he mitted for seven days, without the option of a attendance at Westminster and 3s. 60. for mile- directed to be settled to the use of H. S., the fine. On the 17th Sept. 1870 he was fined 6d. and age, or any of those amounts.

eldest son of J. S., and the assigns of the said costs for drunkenness, and on the 5th Aug. 1871 Another witness called for the prosecution was

H. S. during his life, with remainder to the use of was fined ll. and costs for being drunk and riotous. a clerk named Wright, articled to his father at trustees to preserve contingent remainders, and William Rowell, on the 17th Sept. 1870, was fined New Inn. He went to judges' chambers, having after his decease to the use of the first and every 6d. and costs. On the 21st Jan. 1871 was fined at the time a summons, taken out at Bow-street, other son successively of the said H. S., in re11. and costs; on the 12th Feb. 1871 was fined ls. in his pocket, and overheard a conversation be mainder one after another, and the heirs male of for an assault in the appellant's house ; on the tween the defendant and Boys. He went home the body of each such son, the elder and the heirs 19th March 1871 convicted of an assault; and on and wrote it down in his note book, which, how- male of his body taking before the younger and the 2nd April there was an information against ever, he did not produce. In cross-examiration the heirs male of his body, and on the failure of him for an assault, but it was settled out of court, he said that the defendant referred both Boys and such issue (which event happened), to the use of defendant paying the expenses. George Lowrings himself to the plaintiff Day. He himself had not every son then living, or who should come into was convicted of drunkenness, and fined 10s. and been subpoenaed to attend the trial, nor did he existence in the testator's lifetime, of the said costs; on the 22nd Oct. 1870, and on the 17th attend, but he asked.

J. S., and the assigns of such son during his life, June 1871 was fined for a similar offence. Henry Other witnesses whom the defendant deposed and immediately after the determination of his Wye was convicted of being drunk and riotous on to have paid various sums for attendance and estate in his lifetime to the use of trustees to prethe 22nd Oct. 1870, and fined 10s. and costs. John travelling expenses were called, and denied having serve contingent remainders; and, immediately Oslar was convicted on the 1st July 1871, and received any such sums.

after his decease, to the use of such son's first and fined 1s., the costs being divided.

For the defence it was urged that the defen- other sons successively in remainder one after By J. W. Cooper.-In March 1870, Rowell was dant was justified in stating that he had “ caused another, and the heirs male of the body of each convicted of an assault upon the landlord of the to be paid to the witnesses the various sums, he such last-mentioned first and every other son, the Sun. I do not know if the appellant was present having reason to believe that in several cases his older and the heirs male of his body taking before upon the occasion when these convictions took client, Mr. Day, had arranged to defray, and had the younger and the heirs male of his body. Held place.

actually defrayed, the expenses of the witnesses, that, on the failure of the issue of H. s., all the Bush Cooper submitted that there was no caso and having made an arrangement with a relative, younger sons of J. S. took concurrent life estates made ont. It is not proved that the appellant a member of the medical profession, to pay all the as tenants in common, with remainder, after the knowingly or wilfully permitted drunkenness upon doctors called in the case. The defendant, it was death of each tenant for life, to his first and other the premises. The drunkenness in the house was said, had no corrupt motive in the matter, but, on sons successively in tail male, with cross-remainnegatived by the evidence of the constable. It the contrary, had every reason to uphold an excel. | ders between them : (Surtees v. Surtees, 25 L. T. was no offence to harbour a drunkard.

ent character which he had borne for many years. Rep. N. S. 288. M.R.)


« EelmineJätka »