Page images
PDF
EPUB

called to the Bar by the Society of the Middle Temple in November 1838, and was soon engaged in a large and increasing practice. Amongst the more celebrated cases in which he acted as counsel were the Bridgwater case, in which he was engaged with the late Lord WESTBURY and the present LORD CHIEF BARON, and the Shrewsbury case, and very recently the case of Allgood v. BI in which he argued one, both in the Court of Exchequer and Exchequer Chamber, on behalf of the successful parties, many of the most eminent counsel of the day, including the present LORD CHANCELLOR and the present MASTER of the Rolls, being counsel against him. Although never raised to the dignity of a Queen's Counsel, he was offered a silk gown by the late Lord WESTBURY, then LORD CHANCELLOR, which he declined, and in the year 1864 he was appointed by the same learned lord one of the conveyancing counsel to the Court of Chancery. He was elected a Bencher of the Middle Temple in January last year. Since the elevation of the late Vice-Chancellor WICKENS to the Bench, he has been the acknowledged head of the junior Equity Bar, and his business has been, it is believed, more extensive than that of any other stuff gownsman. It will be a source of satisfaction to the Profession and to suitors in Chancery to know that his elevation to the Bench is due to his professional eminence alone, and not to any political considerations.

“ The

We understand that many firms in the city are complaining of the practice that now prevails at Judges' Chambers in reference to judgment summonses. Under the old régime the dishonest debtor was soon brought to book by means of the writ of capias ad satisfaciendum, but now, although no doubt where the debt exceeds 501., a debtor's summons, after the necessary demand, with a view to bankruptcy, is often resorted to as a means of enforcing payment, yet in cases under that amount the judgment summons is the only machine left for the use of the creditor against a dishonest debtor who seeks to protect his goods by a bill of sale. And here we may observe: If a judgment creditor instructs his attorney to issue a writ of fi. fa., he incurs considerable risk. We may mention that it is becoming the habit of sheriffs' officers (whose emoluments are no doubt in great part swept away by recent legislation), in case they are instructed to withdraw, in the face of an adverse claim, to charge not only possession money for the one or two days during which the instructions of the execution creditor are being taken, and the necessary search for the usual bill of sale is made, but actually the levy fee of one guinea; and in some cases a charge is made for auctioneer's valuation. Indeed, a case was lately brought to our notice in which such a charge was made, although there was a claim for rent exceeding the amount of the valuation. No doubt in the majority of cases these claims are very properly left unpaid. It seems now the rule at Judges' Chambers to dispose of a judgment summons by ordering payment of the debt either in one sum or by instalmerts, according to the debtor's means as disclosed by the affidavit of the judgment creditor, or other person on his behalf. We think we can safely say that, as a rule, the debtor disregards this order, either entirely or in part; but no commitment attaches to this order. A second summons is necessary, and only in the event of non-compliance with this (and not always then), does commitment follow. We are glad to learn that some of the Judges sitting in chambers so highly disapprove of judgment debtors leaving their judgment creditors to get the best information they can as to the capability of the former to pay, and of their disregard of the process of the court, evidenced by non-attendance at chambers on the summons, to be cross-examined as to means of payment, that instead of making an order on the first summons they direct a summons to issue, calling on the debtor personally to attend, in order to be examined as to his pecuniary position. It would be well if this plan was more generally adopted, though it would be far better if in the first summons the debtor was warned that by non-attendance in person he would be guilty of contempt of court, and liable to commitment. It is certain that the course at present adopted is unsatisfactory, expensive, and dilatory, and it will not surprise us to find the judgment summons abandoned by the Profession as a means of enforcing payment.

it was issued, and transferred for value and without notice by the thief. The transferee applied for payment, and on refusal brought an action against the company. The first question was whether the bond was a promissory note. The court said, “It is under seal, and therefore is primâ facie a covenant, not a promise, and it is quite clear that a covenant to pay money is not negotiable by the custom of merchants.”

The elementary principle which prevails in this branch of the law was stated by Lord Cranworth in the case of Dicon v. Bovill (3 Macq. 1), namely, that independently of the law merchant and of positive statute, the law does not enable any man by a written engagement to give a floating right of action at the suit of anyone into whose hands the writing may come, and who may thus acquire a right of action better than the right of him under whom he derives title. The Act of Anne gave negotiability to promissory notes, and upon that Act questions have arisen as to the liability of corporations upon their bonds in the hands of transferees. These bonds or debentures always contain an undertaking to pay a sum of money at a date certain, and this fact militates against the view that the instrument is a deed. In the case of the General Estates Company, ex parte City Bank (L. Rep. 3 Ch. at p. 762), Lord Justice Page Wood said: “The instrument is called, on the face of it, a debenture, which, so far as it goes, is in favour of its being a deed, and not a promissory note; but when we look at its contents we find that the company thereby undertake to pay to the order of Hodges on the 1st July, 1867, the sum of £1000, with interest at the rate of 5 per cent. per annum, which, apart from the material substitution of 'undertake? for “ promise,' is the simple and ordinary form of a promissory note.” Then the Lord Justice added, better opinion seems to me to be that this is a promissory note; but if it be not so, the authorities go to this, that where there is a distinct promise held out by a company informing all the world that they will pay to the order of the person named, it is not competent for that company afterwards to set up equities of their own and say that because the person who makes the order is indebted to them they will not pay.” This decision of the Lords Justices overruled that of Lord Romilly in the court below (18 L. T. Rep. N. S. 457), who had relied upon the absence of any previous contract of the parties that the money in question should be paid by negotiable instruments, which distinguished the case from the Natal Investment Company's case (18 L. T. Rep. N. S. 171). “Here," said the Master of the Rolls, "there is no previous contract on the subject, and the form of debenture is not so favourable as that in the Natal Investment Company, for there it was said they would pay the holder; here they only say that they will pay Mr. Hodges or order.” And he held that the holder was bound by the equities existing between Mr. Hodges and the company. In the case of The Blakely Ordnance Company (18 L. T. Rep. N. S. 132) there had been a previous arrangement that the debentures to be issued should be taken as money, and, being made payable to bearer, the company was held to have contracted itself out of the equities subsisting between them and the original creditor.

These cases having turned so much upon particular circum. stances, little principle is to be extracted from them, but in the Natal Investment Company's case Lord Justice Cairns tells us what construction he places upon the words “or to the holder for the time being of this debenture," namely, that in order to avoid the difficulty and expense of creating an assign by deed, they provided, through the medium of the contract with Coqui, that the company would recognise any person who held the debenture from Coqui to be in as good a position as if he had become the assign of the debenture by deed; that if some one came forward and produced to them a debenture of which he was the holder, they would not insist upon his proving his title, by a formal and actual assignment from Coqui; but it appeared to him that there was nothing whatever in the words intended to put the holder for the time being in a better position than an assign by deed, and the holders were held bound by the equities between Coqui and the company.

The operation of the seal in depriving a note of its negotiable character is not yet decided. It is laid down in Byles on Bills, that at common law bills of exchange and promissory notes, being simple contracts, cannot be under seal, at least so as to retain their negotiable qualities. Unfortunately it was not found necessary in Crouch's case to decide whether an instrument under the seal of a corporation can be a promissory note. In all the cases in which the nature of instruments under seal of corporations has been considered, some special provision has been made for the issuing of negotiable instruments, and following the course which is usual with our courts, all points not essential to the decision of the particular issue were carefully avoided, and the general ques. tion of the power of a corporation to issue negotiable instruments under seal at common law remains unsettled. In Crouch's case, the Queen's Bench followed this convenient practice, and, impor• tant as the matter is, they leave it still at large.

Among some American leading cases which have recently reached a second edition, we see that there are decisions which have raised the point, and we find it laid down that an instrument under seal, though in the form of a promissory note, is not negotiable (Foster v. Floyd, 4 McCord 159); the endorser

[ocr errors]

DEBENTURE BONDS AND PROMISSORY NOTES. Ir certainly is very desirable,” said Mr. Justice Blackburn, in delivering the judgment of the Court of Queen's Bench in Crouch v. The Credit Foncier of England (29 L. T. Rep. N. S. 259), “ that it should not be left doubtful on the face of an instrument whether it is a covenant or a promise.” This desirability is owing to the circumstance that covenants to fulfil a promise to pay do not constitute a negotiable instrument, whereas an absolute promise to pay does, if not under seal. The assignment of an instrument containing a bare covenant confers no right to sue upon the transferee. In the case above quoted an incorporated company promised under seal to pay to the bearer a specified sum at a fixed date, or upon any earlier day upon which this bond shall be entitled to be paid off or redeemed,” according to certain conditions. The bond in question was stolen from the person to whom

a

a

of such instrument is not liable on his indorsement (for which a number of authorities are cited); nor can the assignee of such an instrument sue the obligor in his own name (Clark v. Farmer's Manufacturing Co., 15 Wend. 256; Sayre v. Lucas, 2 Stewart 259); and he takes it subject to the equities between the original parties (Hopkins v. The Railroad Company, 3 Watts & Sergeant 410). By statutes in some of the States, we are told, this rule is altered. In North Carolina, bonds, bills and notes, with or without seal, have from an early period been negotiable. In Georgia, under a statute, all sealed and unsealed instruments for definite sum of money payable to order, assigns or bearer, are negotiable by indorsement. In Ohio sealed instruments payable to one, or order or bearer, and in Alabama such as are payable to one or bearer are negotiable by indorsement, but not without indorsement, even though payable to bearer. Further, it appears that a very admirable system has been adopted for ensuring the negotiability of bonds issued by the United States railway corporations, namely, of "registering,” as it is called, the bonds at the holder's option, and of creating or destroying negotiability in the hands of different honest holders, or even in the hands of the same honest holder, at pleasure. In the bonds of the Camden and Amboy Railroad the following direction and notice is contained,“ The holders of this bond may transfer the same at pleasure, either in person or by attorney, either to a specfied person or to bearer, and by bearer to any specified person, said transfer to be made only on the books of the companies, such transfer to be entered thereon by an officer or agent of the said company, by them designated for that purpose.” If we took the same precautions in issuing debenture bords in this country, we should avoid the difficulties which have arisen in the cases which we have referred to.

To show the confusion which has been created with reference to the negotiability of debentures, and the equities between the original parties by the various decisions, we have only to quote a passage from the judgment of Vice-Chancellor Malins in the case of the Imperial Company of Marseilles (L. Rep. 11 Eq. at p. 493): “With regard,” his Honour said, “ to Re Natal Investment Company, it was said that all these three cases, Ex parte City Bank, Re Natal Investment Company, and Ex parte New Zealand Banking Corporation, could stand together. It is not necessary for me to go into that question, because it is clear that the Lords Justices, in Ex parte City Bank, did not consider that they were overruling Re Natal Investment Company. I have already observed that I am unable to see how Re Natal Investment Company can be reconciled with Ex parte New Zealand Bunking Corporation and Ex parte City Bank. In Re Natal Investment Company the bonds were made payable to the holder, his executors, administrators, or transferees, or to the holder for the time being of the debenture bond.' I am unable to see any distinction between ‘payable to bearer' and 'to the holder for the time being,' because the bearer is the holder for the time being. But if the cases are inconsistent I am bound by the latter case, in which the former one was fully considered; and with every respect for Lord Cairns I cannot help coming to the conclusion that he might with great propriety have decided Re Natal Investment Company the other way.”

Undonbtedly the courts ought, whenever possible, to construe debentures payable to bearer as negotiable, and companies and their creditors ought to take precautions that the instruments are properly framed, if they are intended to be transferable. Lastly, the Legislature ought to follow the American example, and make instruments containing covenants to pay specific sums of money in the nature of bonds payable to bearer negotiable, though under scal.

The existing offices of prothonotary and district registrars will probably be allowed to die out with the present holders, and as the Act gets into full working order it is probable that it will be found more convenient to carry on the work of the Supreme Court, whether Common Law, Chancery, Probate, or Admiralty, in one office. Hence it may be fairly predicted that when the existing district registrars have ceased to hold office, their business will be united in each district into one central office. This section operates from the passing of the Act, but nothing has as yet been done under it. Every district registry will have a seal with which every writ and document issued out of the registry is to be impressed, and all writs and documents, or copies of them, so sealed will be received in evidence without further proof (sect. 61). It is impossible to define the duties or powers of district registrars, as they are to be regulated by rules of court (sect. 62), but it is more than probable that they will have the powers now possessed by masters at common law, and some of, if not all, the powers of chief clerks in Chancery. This is the neces. sary conclusion to be drawn from the section regulating the proceedings to be taken in district registries (sect. 64), for it is there provided that, subject to rules of court, writs of summons for the commencement of actions in the High Court are to be issued by the district registrars; and unless any order to the contrary be made by the High Court, or a Judge thereof, all further proceedings, including proceedings for the arrest or detention of a ship, her cargo and freight, in an action down to and including entry for trial, or if a plaintiff is entitled to sign final judgment by reason of non-appearance of the defendant, down to and including final judgment, or an order for an account, may be taken before the district registrar, as prescribed by rules of court. This section, however, enables the Judges to enlarge the power of the district registrars by providing that all other proceedings as may be prescribed by rules of court may be taken, and if necessary recorded in the district registries. This will have the effect of throwing upon the district registrars all the work which may now be done by a master or chief clerk, if the Judges shalĩ think fit to do so.

Indeed, without such power being put into the hands of a district registrar, the purpose of the Act would be greatly hindered, as constant recourse to the Judges in Chambers would become necessary, and this would involve the removal of proceedings to London. To provide, however, for cases which can be more advantageously carried on in London, power is reserved to any party to an action to apply to the High Court, or a Judge in Chambers, to remove the proceedings from a district registry to the proper office of the High Court in London; and if the court grant the application, all the documents in the cause are to be sent up to the proper office of the High Court, and the action is to proceed as if it had commenced in London (sect. 65). To facilitate the investigation of matters of account and inquiries into question of fact, power is given to the Judges in any pending action to refer such questions to the district registrars, and to order the production at the registry of books and documents, accounts, and other evidence for that purpose; and the registrar will make his report to the court in writing, and it will be acted upon as the court shall see fit. Fees in the district registries are to be taken by means of stamps.

Throughout this notice it will have been plainly visible that many gaps still remain to be filled up by the rules to be published under the Act, before it can be put into working order. The power to make these rules is conferred (sect. 68) upon her Majesty acting under the advice of the Lord Chancellor, the Lord Chief Justice, and the other Judges. The rules are to be made before the commencement of the Act, and will regulate (1) the sittings of the High Court and the Court of Appeal, and of the Division Courts and Judges in Chambers; (2) the circuits, including the time and places at which they are to be holden, and the business to be transacted thereat ; (3) all matters consistent with or not expressly determined by the rules contained in the schedule attached to the Act, and which require to be regulated by further rules ; (4) and generally the practice and procedure of the courts, the duties of their officers, costs, and the conduct of civil and criminal business for which provision is not expressly made by the Act. Rules made under this section are to be laid before Parliament, and may be annulled on the address of either House within forty days after their being laid on the table, but will be binding until or if not so objected to. The general practice and procedure of the High Court and Court of Appeal are, however, regulated by the schedule to the Act, which is made part of the Act (sect. 69), and is to come into operation immediately on the commencement of the Act. Although the rules in the schedule are to form the first guide to the practice of the new courts, they will not necessarily be permanent, because it is expressly provided that after the commencement of the Act these rules, and all rules made under the former section, may be annulled and altered by the Judges; in fact full power is given to the Judges of the Supreme Court (sects. 68, 69, 74), to make and alter rules as they shall see fit, provided only that the rules in the schedule are to form the first rules of practice, and cannot be altered until the Act has commenced. It is obvious, however, that there are certain courts whose jurisdiction is transferred, having forms and proceedings so peculiar to themselves, that any general rules

SUPREME COURT OF JUDICATURE ACT 1873.

(Continued from page 3.)

Part IV.-TRIAL AND PROCEDURE. The part of the Act which most affects our readers is that which provides for the establishment of district registries. This provision will have the effect of putting in the hands of both attorneys and suitors the power of commencing and continuing proceedings in a centre not far from their own places of residence, and to a great extent will free them from the system of agency business which is now necessitated by all preliminary matters being carried on in London. The Act itself (sect. 60) recites that it is expedient to facilitate the prosecution in country districts of such proceedings as may be more speedily, cheaply, and conveniently carried on therein, and with that object empowers Her Majesty by order in council to appoint district registrars for districts to be defined by the order. From these registries writs of summons are to be issned, and various proceedings in an action are to take place, which will be more fully noticed. It is clearly the intention of the Act that the district registrars are to be ultimately the same persons as the registrars of County Courts in the chief local centres, for power is given to appoint any registrar of any County Court; but power is also given to appoint as district registrars, the registrars or prothonotaries of the Common Pleas at Lancaster and the Pleas at Durham, and of the various local courts from which an appeal lies to the Supreme Court and the district registrars of the Courts of Probate and Admiralty.

applicable to the Supreme Court could not be carried out in those divisions of it. Hence it is provided (sect. 70), that the rules now in force in the Court of Probate, the Divorce Court, the Court of Admiralty, and the Court of Bankruptcy, are to remain in force, except in so far as they are expressly varied by the Act, and are to apply to the High Court and Court of Appeal, that is to say, to the respective divisions exercising those jurisdictions, until they are expressly varied by rules made after the commencement of the Act. One effect of this enactment will be that practitioners in those divisions will, on the transfer of jurisdiction, have nothing new to learn, and will find everything standing as if the Act had not passed. The practice and procedure in criminal matters is also to continue the same, but may be altered by rules of court (sect. 71); this includes the practice as to Crown Cases Reserved. It is not intended by the Act, or by any rules made under it, to affect the mode of giving evidence by oral examination of witnesses in trials by jury,except as to the power of the court to allow affidavits or depositions to be read (rule 36), or the rules of evidence, or the law relating to jurymen or juries (sect 72). Moreover, it is expressly provided (sect. 73), that existing forms of procedure in the courts, whose jurisdiction is transferred, may be continued to be used for the same purpose as they have hitherto been used, provided that they are not inconsistent with the Act or the schedule, or are not abolished by rules made under the Act. As the rules in the schedule are of considerable length, it would be impossible to notice them now, although they come more properly under this head, but they will be treated of separately. As they effect great changes in the practice of the courts, they are worthy of careful attention and separate notice.

With a view of securing to the public a thorough reform in the administration of justice, of which the present Act is only an instalment, it is provided (sect. 75) there is to be a council of Judges meeting at least once a year for the purpose of considering the operation of the Act, of the rules of court in force, and also the working of the offices, the duty of the officers of the courts, and of examining the defects in the system of procedure ard administration of the lawļin the Supreme Court or in any infeferior court, whence the appeal lies to the Supreme Court. They will report to the Secretary of State the amendments and alterations they may think necessary, and what other provisions, which cannot be carried into effect without the authority of Parliament, it would be expedient to make for the better administration of justice. If necessary an extraordinary council of the Judges may be convened at any time.

All Acts of Parliament relating to the Courts and Judges whose jurisdiction is transferred, are to be read as applying to the courts and Judges constituted by the Act, and all commissions made under these Acts by which Judges are empowered to try any causes, civil or criminal, are to remain in force until revoked or altered in due course of law : (sect. 76.)

The remainder of the Act, except the schedule and the part relating to the jurisdiction of the inferior courts, is of a formal character, and will require but short notice, which we must, however, now defer. SUGGESTIONS FOR AMENDING THE PRACTICE

RELATING TO STOP ORDERS. Now that the Supreme Court of Judicature Bill has become law, and rules will have to be made for regulating the practice under it, it seems a good time for suggestions to be made upon a subject likely to be embraced by such rules.

When a fund is standing in the name of the PaymasterGeneral of the Court of Chancery an assignment or à charge upon it, or of or upon any interest in it, is not complete until a stop order has been lodged in the Paymaster-General's office, and not only so, but such assignment or charge is liable to be defeated by some one else previously lodging a stop order in his favour. A stop order is now generally obtained upon summons in chambers, but in a few cases it is necessary that a petition be presented to the court. Let us assume that A. is entitled to an interest in a fund in court, which he contracts to sell to B. B. goes to the Paymaster-General's office and inquires whether any stop order has been lodged there, and is answered in the negative, upon which he completes his purchase, and on the same day he takes out a summons for a sto p order, which is not returnable at

р the earliest until after the expiration of two clear days, and very often not until after the expiration of a week. The order is made, and the chief clerk endorses the summons, which, on the following day, is left with the registrar for the order to be drawn up. Two days probably elapse before the order is ready for settling, and assuming that no engrossment is requisite, and there is not a press of work in the office, it takes at least another day in which to pass and enter the order. Six days at least must therefore elapse between the settlement of the purchase, and what is equivalent to giving notice to the trustee of the fund, and during that time many things may happen and another stop order may be lodged, the effect of which might be to postpone B.'s rights to those of the person putting on the first order. We do not for a moment wish to suggest that the latter should not have priority in some cases, but it is just possible that he might have taken out his summons several days before the completion of his transaction

with A., although such completion did not take place until a day or two after that of the sale to B. The practical object of stop orders is to prevent frauds being practised, so that we mast assume that there are people ready to commit such frauds, and it should be the endeavour of a court of equity to do all in its power to prevent them doing so. In the case we have supposed, A. could sell his interest to B., and also to another person, and if he were rogue enough to attempt such a fraud he would probably be cunning enough to arrange that both purchases should be completed on the same day, or at least within a day or two, so that neither would have the remotest idea of the negotiations with the other, nor would the person who completed second be aware of the prior completion by the other purchaser. To prerent such a fraud we would venture to suggest that a system of notices should be adopted, under which a purchaser or other interested person could immediately lodge a restraint in the Paymaster-General's office. This notice might for convenience' sake be required to be given upon a printed form to be obtained at the office, and it should be available for a short time only, say for the next fourteen days during which the Chancery offices were open. This would give ample time for the interested person to obtain a stop order; if he did so it should refer to and operate from the lodging of the notice, but if he negiected to do so the notice should for every purpose be considered null and void, and should confer upon the person giving it no rights or equities of any kind whatsoever. In order to discourage any attempt rashly to lodge notices, the person signing them, who should properly be a solicitor, should be answerable for any loss or expense caused to any other person interested in the fund by the improper lodging of a notice. If a system similar to that above suggested were adopted, it would be impossible for a person interested in a fund to commit a fraud with respect to it, unless through the wilful negligence of the person first dealing with him, in which case the result of the negligence would fall upon the proper person.

Another improvement in regard to stop orders suggests itself to us. Stop orders are often obtained for temporary purposes, as, for instance, to secure the payment of an annuity for a life, and such life may drop before the fund becomes divisible. Again, upon every sale where the purchase-money is paid into court the order directing such payment provides for the execution of a conveyance by all proper parties, and that the purchase-money be not disposed of without notice to the purchaser. The effect of this order is that if it be lodged at the Paymaster-General's office no dealing can take place without the concurrence of the purchaser. We believe a purchaser is bound to remove the stop order at his expense so soon as he obtains his conveyance, but in practice this course is seldom adopted, it being the general custom for the purchaser to authorise the vendor's solicitor to consent on his behalf to any proposed dealing with the fund. The latter course is objectionable in two ways; first the purchaser might die before it was necessary to act upon the authority, in which case his representatives would have to be sought out and served, or their authority obtained, and secondly, the purchaser might make himself liable for the solicitor's improper use of the authority. As a better system we would suggest that an order be no longer deemed necessary for the discharge of a stop order, but that such stop order may, for all purposes, be considered discharged upon the filing in the Paymaster-General's office of a consent for that pur. pose by the person in whose favour the order was obtained, such consent in all cases to be annexed to and verified by the affidavit of such person's own solicitor.

The chief clerks in chambers should have power to make stop orders affecting funds, notwithstanding the circumstances under which they were paid into court. Some of the chief clerks consider they cannot make such orders when the fund paid in under the Trustee Relief Act exceeds £300, and such a fund is of course from its nature more liable than any cther to be affected by claims by purchasers and mortgagees who would require stop orders to protect their interests.

SEARCHES, INQUIRIES, AND NOTICES.
MIDDLESEX AND YORKSHIRE REGISTRIES.

(Continued from p. 4.) WIEN the memorial is of an endorsed deed and the parcels are described by reference to those of the deed upon which it is written, the date, parties, and parcels of both deeds should be set out in the memorial (15 Q. B. 976). The registration of an assignment in which the lease is recited is not registration of the lease (Honeycomb v. Waldon, 2 Str. 106+), and the re-execution of a deed before fresh witnesses, will not do for the purposes of registration (Essex v. Baugh, 1 Y. & Coll. Ch. R. 620).

It is considered prudent, notwithstanding the exception of copyholds from the operation of the Acts, that such leases of lands of that tenure as would, if of other tenure, require registration, should be registered, and that mortgages of leases, unless of leases originally held at rack rent, should also be registered.

It would not appear necesssary to register a will where the derisee is also the heir-at-law, and it seems to be the general opinion that it would not be necessary to register a will where the legatee was also the executor, but we think it would be prudent

...

[ocr errors]
[ocr errors]

that in the latter case the will should be registered to prevent the Parsuant to an Act passed in the session of 1868 (31 & 32 Vict. c. 71), possibility of a subsequent will being found, under which a pur.

Her Majesty, on the representation of the Lord Chancellor, may, by order chaser without notice from the executor would derive a better

in counoil, confer Admiralty jurisdiction to a certain extent, and under

certain restrictions declared in the Act, on any County Court. Under this title except in Middlesex when the testator has been dead for

Act, 34 County Courts and the City of London Court have been appointed five years, or where having died in Great Britain he has been dead to have Admiralty jurisdiction, and the proceedings for the year ending two years, or where having died abroad he has been dead four years 31st. Dec. 1872 are shown in the table. and no memorial of impediment has been registered, and except

The cases in which probates or administrations of wills were granted in the North Riding of Yorkshire where the testator has been

under decrees of County Courts are shown in the returns furnished by the

district registrars of the Court of Probate. dead for three years, and except in all the Ridings of Yorkshire

Hitherto there have been 59 County Court circuits, but Nos. 10, 34, and (with the exception, perhaps, of the West Riding where the pur. 56 having been absorbed in the circuits adjoining to them respectively, 56 chase or mortgage money does not exceed £50,) and Kingston- circuits only now remain. The number of places at which courts are held upon-Hull where the testator has died in Great Britain upwards

is now 499. The number in each circuit is shown in the table ; the number of six months, or abroad upwards of three years, and no memorial

of days of sitting on each circuit in 1872 is also shown. of impediment has been registered.

For Circuit No. 6, in which Liverpool is comprised, there are two judges.

For each of the other circuits there is one judge only.
THE BEDFORD LEVEL.

The following are the number of plaints in the whole of the County By the 15 Car. 2, c. 17, a corporation was formed called “The

Courts, and the totals under each heading in the returns with reference to

the recovery of debts for the year 1872, in comparison with the numbers Governor, Bailiffs, and Commonalty of the Company of Conserva- for the preceding year and for 1862 : tors of the Great Level of the Fens," upon whom certain benefits and

1872.
1871.

1862. powers in connection with the 95,000 acres thereby allotted were con

Plaints entered

900,755
918,538

817,169 ferred, and by sect. 8 it was provided that all conveyances by inden- Cases from the Superior Courts

554
610

119 ture of the 95,000 acres or any part thereof, entered with the

901,329

919,118

-817,283

Causes determined : registrar in a book to be kept for that purpose, should be of equal

With a jury

959
953

869 force to convey the freehold and inheritance of the 95,000 acres or Without a jury

510,947
520,991

466,592 any part thereof as if the same conveyances by indenture were for

511,906

521,944 -467,452

Judgments : valuable considerations of money, inrolled within six months in For Plaintiff

305,354
307,229

259,400 one of the King's courts of record at Westminster; and that no For Plaintiff by consent or

admission

185,896
193.606

187,616 lease, grant, or conveyance of, or charge out of or upon the 95,000

For Plaintiff by default 3,463

3,663

1,128 acres, or any part thereof, except leases for seven years or under Nonsuit

8,339
8,285

10,170 in possession, should be of force but from the time it should be

For Defendant

8,854
9,161

9, 107 511,906

521,941 - 467,451 entered with the registrar as aforesaid, the entry whereof being Judgment Summonses : indorsed by the registrar upon such lease, grant, conveyance, or

Issued

124,367
123,928

122,283

Heard charge, should be as good and effectual in the law as if the original

64,992
66,606

61,584

Warrants of Commitment: book of entries were produced at any trial at law or otherwise.

Issued

33,823
33,704

26,757 A lessee who at the expiration of his lease, wished to avail

Debtors imprisoned

6,899
7,969

9,373

Executions against goods : himself of the non-registration of the lease as a defence to an Issued

177,421
181,123

131,760 action brought against him upon one of the covenants, was not

Sales made

3,877
4,435

4,849

32 Appeals

28 allowed to do so : (Hodson v. Sharpe, 10 East, 350.) Lord Ellen

Order to stay proceedings...

51
75

47 borough in that case (at p. 353) is reported to have said, “The Certiorarito remove proceedings 44

48

81

Total amount for which plaints entered £2,590,792 £2,662,132 £2,006,63) Act no doubt meant for the protection of titles, that leases and

On Judgments obtained by Plaintiffs on original bearings : conveyances within the district should be registered, that every Amount of Debts...

£1,282,693 £1,324,156 £1,000,223 person interested in the inquiry might know in whom the title to Amount of Costs

£62,360
£61.670

£10.1:37 any such land was and therefore as against persons who had been

Total amount of Fees on all proceedings £349,266 £358,031 £170,64

Proceedings in cases of absconding debtors : deceived by the omission to register, or even as against those who, Warrants to arrest

2

5+ without being deceired, knew that the Act had not been complied

Bail given

1 Debt and costs paid

1

10 with, and relied on it, the legal objection might prevail at law, but Warrants suspended not as between the parties themselves to the lease, between whom Proceedings under the Charitable Trusts Acts :

Matters heard... the Act was not meant to operate.” Le Blanc, J., added, " the

Orders made

1

1 object of that clause in the Act on which he (the defendant) relies, Proceedings for protection of wives deserted by

their husbands: was to take away the priority of the party whose title was not

Orders registered

690

532 registered, with respect to subsequent claimants whose titles were Orders discharged

747

1 registered, but it never was intended to operate between the

Bankruptcy :

Number of adjudications by County parties themselves so as to enable a lessee who had enjoyed under

Courts

684

913 it, to dispute the lease.” In the subsequent case of Willis v. Debtors' summonses issued

1,418 1,529 Broun (10 Sim. 127), Shadwell, V.C., concurred with the descision

Declaration of inability filed by
debtors

182

337 in Hodson v. Sharpe, but not with the dicta of the Judges which Petitions for adjudications filed 866 1,162 we have abore given, and he decided that the cnly effect of the In the number of plaints entered in 1872 there is a decrease of 17,763, or

a Fant of registration was to deprive the parties of the special 1.9 per cent., as compared with the number in 1871. The number for the benefits which the Act would otherwise have conferred upon them,

latter year showed an increase of 6240 as compared with the number in and added (at p. 149): “I wish it to be most distinctly understood

1870. As compared with the number in 1862 there is an increase, in 1872,

of 53,606, or 63 per cent. that I am of opinion that the meaning of those words is not that

From a Parliamentary paper recently issued, (No. 123, Sess. 1873) it conveyances of parts of the 95,000 acres shall not have

any
force

appears that from the establishment of these courts in 1847 to the 31st at all, but that they shall have no force for the purposes of the Dec. 1872, the total number of plaints entered is 18,200,811, for an aggre. Act except from the time of their being entered with the registrar.” gate amount of £43,794,746. The amount for which judgment was obtained The latter view now appears to be accepted as correct, perhaps for

during the same period is £24,732,095.

The number of days of sitting for the whole of the circuits was 7973 in the reason that it is the more palatable. A search should, how

1872, against 8041 in 1871, 8085 in 1870, 7909 in 1869, 7987 in 1868, and 7893 erer, always be made in the Register Office, although the fact that in 1867. The number for 1872 gives 64.2 causes for each day of sitting, nothing is then discovered will not be conclusive that no prior calculating on the total number of causes determined. This average was dealing has taken place. Upon completion it will be prudent to 64:9 for 1871 ; for 1870, 64:7; for 1869, 68:5; for 1868, 71:7; for 1867, 68:7; register all deeds relating to lands in the Level other than, of

for 1866, 62:1; for 1865, 57-1. The greatest number of days of sitting on course, the excepted leases.

any circuit in 1872 was 313, on Circuit No. 6, for which there are two judges ; the greatest number for a single judge was 168, on Circuit No.

12; the lowest was 111, on Circuit No. 39; against 326 on Circuit No. 6, THE JUDICIAL STATISTICS FOR 1872.

161 on Circuit No. 2, and 92 on Circuit No. 8, respectively, the highest and

lowest numbers in 1871. The highest average number of causes deter. COUNTY COURTS.

mined on each day of sitting was 142, on Circuit No. 13; the lowest 25, on The proceedings in the County Courts in the year 1872 for the recovery of

Circuit No. 32. In the preceding year the highest average was 157, on debt, the proceedings under the Charitable Trusts Act of the 16 & Circuit No. 19; the lowest 26, Circuit No. 32. 17 Vict. c. 137, the proceedings under the Act of 20 & 21 Vict. c. 85,

The causes determined in court were in the proportion of 56-8 per cent. for the protection of wives deserted by their husbands, and the pro

to the total number of plaints entered, leaving 43:3 per cent. as the pro. ceedings against absconding debtors, are shown in the tables; also, the portion settled out of court. In 1871 these proportions were 567 and 432; number of courts having bankruptcy jurisdiction, the number of debtors

in 1870, 57:3 and 42:7; in 1869, 58 6 and 41:4; in 1868, 58:5 and 41:5; in summonses issued, the number of declarations of inability filed by debtors,

1867, 57-5 and 42:5; in 1866, 55:9 and 41:1; in 1865, 554 and 44:6; in 1864, and the number of petitions for adjudication filed, under the Bankruptcy

56-4 and 43:6, respectively. Act 1869, in each County Court circuit. The number of County Courts

of the judgments given in 1872, 96-7 per cent. were for the plaintiff, having jurisdiction in bankruptcy is 130. Circuits Nos. 39, 40, 41, 42, 44,

1.6 per cent. were nonsuits, and 1.7 per cent. were for the defendant. and 46, which are comprised in the district of the London Bankruptcy In 1871 the proportions were the same. In 1870, 96:6 per cent. were for Court, have no jurisdiction in Bankruptcy. The judges of the London

the plaintiff, 1:6 per cent. were nonsuits, and 1.8 per cent. were for the Court only have jurisdiction in bankruptcy in the City of London. The

defendant. In 1869 the same. In 1868, 96:9, 1:5, and 16: in 1867, 96 6,107, Court of Passage at Liverpool has concurrent jurisdiction in bankruptcy

and 1:7; in 1866 and 1865, 96-2, 1:9 and 1:9; in 1864, 95:9, 2:1 and 2:0. with the County Court held there.

The number of debtors imprisoned gives one for 130-6 of the number of Returns of the proceedings of the County Courts under the jurisdiction

plaints entered, with the cases from the Superior Courts included. In 1871 equity, conferred by the Act of 28 & 29 Vict. c. 99, have been fur.

the proportion was one for 115:3. In 1870, one for 138:3; in 1869, one for nished by the treasurers, as obtained by them from the registrars, for the

95:8; in 1868, one for 101 ; in 1867, one for 112; in 1866, one for 115; in Fear 1872, and will be found abstracted in the tables, in continuation of

1865, one for 123; in 1864, one for 113. the abstract for the preceding year.

(To be continuod.)

ון דודו

4

...

[ocr errors]
[ocr errors]

:

NOTES OF THE WEEK.

V.C. WICKENS' COURT.

used to produce a given effect, when, in fact, only (Before Lord SELBORNE, sitting for th; late

one is capable of being so used successfully. COURT OF APPEAL IN CHANCERY.

Vice-Chancellor WICKENS.)

The specification is addressed, not to persons

entirely ignorant of the subject matter, but to Tuesday, Nov. 4.

Tuesday, Nov. 4.

artists of competent skill in that branch of manu. (Before the LORDS JUSTICES.)

ADAMS v. NORTH BRITISH RAILWAY COMPANY. factures to which it relates.” (1 Q. B. 938; 1 RE THE MATLOCK OLD BATH HYDROPATHIC The bill in this case stated that Frederick Foster

Web. P. C. 214.) COMPANY. (CASE OF THE MANCHESTER FI. Burlock was, in 1869, constituted the general said : "The patentee must give such a description

Elliott v. Ashton. N. P. 1840.—Coltman, J., NANCE CORPORATION).

agent of Messrs. Richardson and Co., an Ameri- in his specification as would enable a workman of Company - Winding-up Contributory Allot. can firm, to introduce and sell in Great Britain competent skill, conversant with the trade, to

ment of shares in satisfaction of debt. an invention for the improvement of safety: carry the invention into effect.” (1 Web. P. C. This was an appeal from a decision of Bacon, valves for steam-boilers. In Jan. 1870 Burlock 222.) V. C. The Manchester Finance Corporation entered into an agreement with the plaintiff,

Neilson v. Thompson. 1841.-Cottenham, L C. : having advanced £500 to the Matlock oid Bath whereby, after declaring that he had the full “ The public are entitled to know for what it is Hydropathic Company, the latter company allotted and sole power to treat for the sale of the in- that the patentee claims the invention, that they to the corporation fifty fully paid-up

shares of vention, ho gave the sole agency for working may be saved inconvenience upon the subject; £10 in the Matlock Company in satisfaction of the patent in this country to the plaintiff, who therefore, the specification must tell the public the sum advanced. The 2500 was, however, still was to have an interest in sales and profits to for what it is that he claims protection.” (1 Web. treated as a debt, and it appeared that the two the extent of £25 per cent. The railway com- P. C. 283.) companies intended the shares to be merely a pany having adopted the invention for their loco.

Neilson v. Harford. 1841. (N. P.)-1. A specifi. security for the debt. In Feb. 1869 the Matlock motives, had paid a royalty for some valves sup: cation is sufficient if it enables a person of ordiCompany gave the corporation a debenture for plied by the plaintiff

, who however alleged that nary skill and knowledge of the subject to con£500 as a further security for the debt. The they had many more in use, for which they re- struct the patented machine. Parke, B., said to Matlock Company was subsequently ordered to fused to pay any royalty. The bill then prayed the jury: "You are not to ask yourselves the be wound-up, and the Vice-Chancellor held that, for an account, for damages, and for an injunc question whether persons of great skill, a firstas they had paid nothing upon the shares, the tion. The defendants demurred on the ground rate engineer, or a second-class engineer, as corporation must be treated as holders of unpaid that Burlock's authority did not extend to a described by Mr. Farey-whether they would do shares, and placed upon the list of contributories. right to give to Adams the privileges granted by it; becanse generally those persons are men of From this decision the corporation appealed. the agreement of 1870, and in this view the late great science and philosophical knowledge, and

Yate Lee (with him Amphlett, Q.C.), for the Vice-Chancellor Wickens had concurred when they would upon a mere hint in the specification appellants, stated that they were ready to give refusing a motion for injunction.

probably invent a machine which should answer up all right of proof on the debenture for £500, if they were removed from the list of contribu.

H. M. Jackson, Q.C., and Graham Hastings ap- the purpose extremely well; but that is not the tories. peared for the plaintiff.

description of persons to whom this specification Ince (with him Kay, Q.C.), for the official liqui. Dickinson, Q.C., and Colquhoun for the railway may be supposed to be addressed, it is supposed

to be addressed to a practical workman, who dator.

company. Lord Justice MELLish said that on the fifty

brings the ordinary degree of knowledge and the

Lord SELBORNE allowed the demurrer, with shares being allotted to the corporation in dis- costs, without hearing a reply.

ordinary degree of capacity to the subject." In

the course of the argument in the Court of Er. charge of their debt, they ceased to be creditors

Solicitor for the plaintiff, T. Guscotte.

chequer, Abinger, C.B., said: “Where the speci. of the company. It appeared from subsequent

scientific terms which are not transactions that both parties intended still to

Solicitors for the railway company, Ashurst, fication uses keep alive the debt. That could not be lawfully

understood except by persons acquainted with the Morris, and Co.

nature of the business, the specification is not done. The corporation never agreed to take una

bad because an ordinary man does not understand paid shares, but fully paid up shares were allotted to them in payment of their debt. They must,

it, provided a scientific man does ; but where the PATENT LAW.

specification does not make use of technical therefore, be removed from the list of contribu. (By C. Higgins, Esq., M.A., F.C.S., Barrister-at-Law. terms, where it uses common language, and tors.

where it states that by which a common man may Lord Justice JAMES concurred. Solicitors for the appellants, T. White and Son.

COMPLETE SPECIFICATION.

be misled, though a scientific man would not

when it does not profess to use scientific terms, Solicitors for the respondents, Satchell and

(Continued from page 424.)

and an ordinary man reading the specification is Chapple.

Minter v. Mower. 1837.—“ Patent for an im- misled by it-it would not be good.”

provement in the construction, making, or manuTHE IMPERIAL LAND COMPANY OF MARSEILLES facturing of chairs.” The 'specification thus such as, if fairly followed out by a competent

2. (Court of Ex.)—The specification shonld be v. MASTERMAN.

concludes: “What I claim as my invention is, workman, without invention or addition, would Practice- Affidavit of documents -- Further the application of a self-adjusting leverage to produce the machine for which the patent is taken affidavit-Reasonable suspicion.

the back and seat of a chair, whereby the weight out, and such machine so constructed must be one This was an appeal from an order of Malins,

on the seat acts as a counter-balance to the pres- beneficial to the public. Purke, B. said, at Nisi V.C. The defendants had, in pursuance of the

sure against the back of such chair as above de Prius: “If experiments are necessary in order common order obtained by the plaintiffs, made scribed.” It appeared from the evidence that a to construct a machine to produce some beneficial an affidavit of documents in the usual form, chair, acting upon the same principle as that effect, no doubt this specification is defective. If referring to a schedule of documents, and con

which the patentee claimed, had been constructed experiments are only necessary in order to procluding with the usual denial of their having or

and sold by a person of the name of Brown, before duce the greatest beneficial effect, in that case I having had in their possession any other docu. the date of the patent; this chair had, however, think the patent is not void.” Parke, B., ments. The schedules comprised a copy of a

been encumbered by additional machinery. Held, delivering the judgment of the Court of Ex. letter of the 19th Oct. 1865, from Messrs. Uptons that the specification was bad. Denman, C. J., chequer, said there was no authority to show that and Co., solicitors in London, to Messrs. Maug- said: “The specification claimed more than tho a specification, which could only be supported by ham and Co., their agents in Paris, and copies of plaintiff had invented, and would have actually a fresh invention and correction by a scientific letters in reply of the 20th and 21st Oct. 1865, precluded Brown from continuing to make the person, would be good. from Messrs. Maugham and Co. to Messrs. Uptons same chair that he had made before the patentee's 3. (Court of Ex.)- A specification which con. and Co., in which the former stated that they discovery. We are far from thinking that the tains a false statement in a material circumstance, had sent therewith copies of certain documents patentee might not have established his title by of a nature that, if literally acted upon by a comalleged by the plaintiffs to be material to the showing that a part of Brown's chair could have petent workman, would mislead him and cause the questions at issue in the cause. The defendants, effected that for which the whole was designed. But experiment to fail, is bad. The patentee, in his by their answer, admitted that Messrs. Uptons and his claim is not for an improvement upon Brown's specification said : “ The shape of the receptacle” Co. acted as their solicitors in Sept. 1865, in re- leverage, but for a leverage so described that the (a part of his machine) " is immaterial to the ference to the matters in question in the causo, description comprehended Brown's.” (6 A. & E. effect.” This was held to cast upon the patentee but denied that they had so acted after the 735 ; 1 Web. P. C. 142.)

the necessity of proving to the satisfaction of the 17th Oct. 1865. The Vice-Chancellor, on the

Galloway v. Bleaden. N. P. 1839.-Tindal, jury that any shape which could reasonably be application of the plaintiffs, ordered the de-C.J., referring to the specification, said: “If expected to be made by a competent workman fendants to make affidavit of documents on the there is a want of clearness, so that the public would produce a beneficial effect and be a valuable ground that the schedule afforded reasonable cannot afterwards avail themselves of it, much discovery. ground for suspecting that the defendants had in

more if there is any studied ambiguity in it, so as 4. (N. P.) The omission to mention in the their possession other documents than those set

to conceal from the public that which the patentee specification anything which may be necessary for out in the schedule, relating to the subject matter

for a term is enjoying the exclusive benefit of, no the beneficial enjoyment of the invention is a of the suit. From this order the defendants doubt the patent itself would be completely void.” fatal defect. Aliter if such omission go only to appealed. (1 Web. P. C. 524.)

the degree of the benefit. Cotton, Q.C. and Kekewich, for the appellents.

Bickford v. Skewes. 1839.-Patent for a miner's 5. (N.P.)-The omission to mention in the Glasse, Q.C., Higgins, Q.C., and Wingfield for safety fuse. The specification directed the use specification anything which the patentee knows the respondent.

gunpowder, or other proper combastible to be useful is a fatal defect.

matter,” for the manufacture of the fuse. It 6. (Court of Ex.)-A patent is not vitiated by a Lord Justice James said that there was nothing was objected, on behalf of the defendant, that the mistake in the specification, as where air is called in the schedule to raise a reasonable suspicion plaintiff had failed to show that any other an imponderable substance, or sulphur a mineral ; that anything had been inadvertently or other material but gunpowder had ever been used in nor by a mistake in a matter foreign to the inven. wise omitted from this affidavits. It was perfectly the fuse; or, if introduced, would answer the tion, which cannot mislead ; nor by the inaccuclear that the letters in question had been written purpose desired. Denman, C.J., in delivering the rate use of words which are explained by the conand received by Messrs. Uptons, not as solicitors judgment of the court, said: “The first part text. of the defendants, but as solicitors of the com- of this objection seems to us immaterial if other 7. (Court of Ex.)-The construction of the pany which had just been registered. The affi- materials, not specified (and it is certainly not specification is for the court, the meaning of the davit was sufficient in form, and contained an necessary to specify all), but still within the words and surrounding circumstances having express denial of the possession of any other description given, will answer the purpose ; no been ascertained by the jury. Parke, B. deliver documents relating to the

subject-matter of the ambiguity is occasioned. Nothing that can mis- ing the judgment of the Court of Exchequer, held suit. The Vice-Chancellor's order must there- lead the public, or increase the difficulty here it a just rule of construction to judge of the fore be discharged.

after of making the instrument, by the introduce meaning of a particular phrase by taking the Lord Justice MELLISH was entirely of the same tion of terms which import the patentee has whole instrument together; and he construed the opinion.

himself used them. The latter part of the objec. word “ effect” in one part of the specification as Solicitor for the appellants, Freshfields. Solicitors for the respondents, G. S. and H. material, because it does tend to mislead if it be used in that sense in some other parts of the

tion, if true in fact, would have been more meaning beneficial effect, because it was evidently Brandon.

stated that a whole class of substances may be specification. The intelligibility of the specifica

[ocr errors][ocr errors]
« EelmineJätka »