« EelmineJätka »
language, resort will be had to that foreign language to explain the meaning of particular words and the construction of the will will be governd by the testator's domicile so far as regards personal estate : (Martin v. Lee, 14 Moo. P. C. 142; McGibbon v. Abbott, 54 L. T. Rep. 138; 10 App. Cas. 653; Re Cliff's Trusts, 66 L. T. Rep. 483; (1892) 2 Ch. 229). It may be written or printed, figures may be used, and the words may be written and printed at length or contracted. With respect to a will which is written and printed, it may be observed that this generally occurs where the testator purchases a form of will from a law stationer. In these forms the practitioner is aware that blank spaces are left for the insertion of words. Such a will, if properly executed and attested, is valid (see 2 Rob. 115, n.) ; but practitioners will do well to remember that if the blanks in the printed form are filled up partly in ink and partly in pencil then the latter words are considered deliberative, and may, as was the case in In the Goods of Adams (26 L. T. Rep. 526; L. Rep. 2 P. & D. 367), be excluded from probate. So much then for the validity of the will as respects the writing.
We next are led to consider in connection with this article the statute (24 & 25 Vict. c. 114) known as Lord Kingsdown's Act. This Act provides that every testamentary instrument made out of the United Kingdom by a British subject (whatever may be the domicile of such person at the time of making the same,
at the time of his or her death) shall, as regards personal estate, be held to be well executed for the purpose of being admitted to probate if the same be made according to the forms required either by the law of the place where the same was made or by the law of the place where the person was domiciled when the same was made, or by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin (sect. 1); it further provides that a testamentary instrument made within the United Kingdom by any British subject (whatever, &c., as in sect. 1) shall as regards personal estate be held to be well executed and be admitted to probate if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made (sect. 2); a subsequent change of domicile does not revoke, make invalid, or alter the construction of a will (sect. 3); a will is not rendered invalid as regards personal estate which would have been valid if the Act had not been passed, except as such will may be revoked or altered by any subsequent will made valid by the Act (sect. 4). The Act, it will be noticed, applies to wills of British subjects made out of the United Kingdom, whatever may be their domicile, and on considering this fact the question naturally suggests itself, does the Act apply to a naturalised foreigner ?
As we have seen (101 L. T. 446), an alien to whom a certificate of naturalisation has been granted shall in the United Kingdom be entitled to all political and other rights, powers, and privileges of a natural-born British subject, and subject to all obligations to which a natural-born British subject is subjected in the United Kingdom, with this qualification, that he shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of natnralisation, be deemed to be a British subject, unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty to that effect (33 & 34 Vict. c. 14, s. 7). The answer to the question as to whether the 24 & 25 Vict. s. 114 applies to a naturalised alien may be given in the affirmative, and the authority in support is the case of In the Goods of Gally (1 P. Div. 438 ; 45 L. J. 10). In this case the facts were that Dominico Gally, an Italian by birth, became domiciled in England, and obtained under the 7 & 8 Vict. c. 66, letters of naturalisation as a British subject from the Secretary of State. The letters were dated the 25th Nov. 1852, and were to this effect : “Now, in pursuance of the power and authority granted to me as Secretary of State, I hereby grant to the aforesaid Dominico Gally all the rights and capacities of a natural-born British subject, except the capacity of being a member of the Privy Council, or a member of either House of Parliament, and except any rights and capacities of a natural-born subject out of and beyond the dominions of the British Crown and the limits thereof." When residing at Leeds, D. Gally made a will and codicil dated respectively the 21st May 1871 and 28th April 1873, which were duly executed according to the forms required by the law of England. After April 1873 he returned to Italy, and at the time of his death, which occurred at Lemma, on the Lake of Como, on the 21st May 1876, was domiciled there. Probate of the said will was moved for under sect. 2 of 24 & 25 Vict. c. 114 (sup.). Lord Hannen (then Sir J. Hannen) granted same, and in giving judgment said: “The concluding exception in the letters of naturalisation may perhaps have reference to the possibility of the status of a British subject being set up by a naturalised person in opposition to the claims of some foreign state ; but I think I am not called upon for the present purpose to express any opinion as to the meaning of that exception. The Legislature has conferred on the Crown the power of investing foreigners with the rights of British subjects, and that power having been exercised in favour of the testator I must deal with this case in precisely the same way as if he had been a British subject by birth, unless there has been any exception affecting his testamentary powers as a British subject. do not see that any such exception has been made out here, the will and codicil having been duly executed according to the law of England at a time when he was domiciled in England, he was also a British subject, they are within the terms of 24 & 25 Vict. c. 114, s. 2, and are entitled to probate." Thus it follows that the will of a naturalised foreigner, where the will is executed in England, is well executed, provided the formalities of the Wills Act are complied with, and this even though the foreigner at the time of his death resides abroad. Proceeding a step further, we are led to ask what are the rights of a foreigner who is not naturalised ? Is a will executed by him valid or not? As we have seen, the Naturalisation Act 1870 (33 & 34 Vict. c. 14), s. 2,
provides that real and personal property of every description may be held and disposed of by an alien in the same manner as by a natural-born British subject; therefore, so far as regards the making of a will, a foreigner can now do so whether naturalised or not: (Sharp v. St. Sauveur, 26 L. T. Rep. 142; L. Rep. 7 Ch. 343; De Geer v. Stone, 47 L. T. Rep. 434; 22 Ch. 243). But, as the Act does not deal with the question as to what is to be the form of a will, in order to ascertain in what form the will must be made it is necessary to consider the decided
In Bremer v. Freeman (10 Moo. P. C. 306) and Enohin v. Wylie (6 L. T. Rep. 263; 10 H. L. A. C. 1), it was decided that the Wills Act only applies to persons having an English domicile, and the validity so far as regards the wills of personal property (except in the case of British subjects dying after Aug. 1861) is governed by the law of the testator's domicile at the date of his death. In the former case Lord Wensleydale, at pp. 357 and 358, says: “That the law of the testator's domicile, at the time of making the will and of the death of the testator, where there is no intermediate changes of domicile, must govern the form and solemnities of the instrument can no longer be questioned. The maxim Mobilia sequuntur personam has long prevailed, and whatever the origin of that doctrine may be-whether it was derived from a fictitious annexa. tion of movables to the person, or from an enlarged policy growing out of their transitory nature-it has (as Mr. Justice Story observes) so general a sanction among all civilised nations that it may now be treated as part of the jus gentium : (Story's Conflict of Laws, sect. 380). It follows from this maxim that the post-mortuary distribution of the effects of a deceased person must be made according to the law of his domicile at the time of his death ; if he dies without a will—and it equally seems to follow that if the law of that country allowed him to make a will—the will must be in the form and with the solemnities which that law required.”
Further, notwithstandiug the provisions of the 24 & 25 Vict. c. 114, and the Naturalisation Act 1870 (33 & 34 Vict. 14, s. 2), the will of an alien executed abroad is invalid, and, even though such will be executed with the formalities prescribed by the Wills Act: (In the Goods of Von Buseck, 6 P. Div. 211; Bloxam and others v. Favre and others, 50 L. T. Rep. 766 ; 8 P. Div. 101 ; In the Goods of Keller, 65 L. T. Rep. 763; 61 L. J. p. 39). In Bloxam and others v. Favre and others (sup.), Lord Hannen says: “If the plaintiff's argument is to prevail, the will of such an alien, if made in English form, must be admitted to probate, though the tribunals of his own country may have pronounced against its validity.
By the 7 & 8 Vict. c. 66, an alien could acquire every species of personal property except chattels real. He could not hold real property or chattels real.
The object of the 2nd section of the Naturalisation Act 1870 was to do away with these remaining restrictions, and for this purpose the section is worded as it is, and made to extend to real and personal property of every description including chattels real. The object of the enactment is to do away with the disabilities of aliens, and put them on the same footing as a natural-born British subject so far as English laws were concerned, but leaving them still subject to the laws of their own country and the general principles of private international law on the subject of domicile which have been recognised by our tribunals.
Domicile is in no way dealt with or referred to throughout the Act. The words disposed of in the same manner as by a natural-born British subject' do include a dis. position by will, but that in determining what is the valid will of an alien the general principles of law laid down by the Privy Council and House of Lords [his Lordship here refers to the case of Bremer v. Freeman and Enohin v. Wylie, sup.) must prevail.”
In order to pass leaseholds in England the will of a British subject or of a foreigner dying abroad must have been executed according to the formalities prescribed by the Wills Act: (Freke v. Lord Carberry, L. Rep. 16 Eq. Cas. 461, 466 ; De Fogassieras v. Duport, 11 L. Rep. Ir. Ch. Div. 123). In the latter case a Frenchman, domiciled in France, executed a will according to the manner prescribed by 1 Vict. c. 26. This will was not made according to the law of France to render same valid. Personal estate was bequeathed in England and Ireland to trustees who were also named executors ; the testator also gave leaseholds for yoars in Cork, in Ireland, and all other his real estate and chattels real in Ireland to the same trustees. It was held that the will was valid as to chattels real, but invalid as to the personal property of the testator other than chattels real, or to revoke any prior testamentary disposition, and the court granted to trustees in that character alone administration cum. test annero limited to chattels real in Ireland.
As to the case of a foreigner residing here at the time of making his will or at his death, and who is not naturalised, the law appears to be that such an alien has power to dispose by will made in accordance with the formalities prescribed by the Wills Act, of real and personal estate situate here, and personal estate situate abroad: (Bloxam and others v. Farre and others, sup. ; Story's Conflict of Laws, p. 642).
As regards tho wills of immovables the lex loci sitæ governs both as to testamentary capacity of the testator and as to the forms and solemnities necessary to give the testament effect : (Nelson's Private International Law, pp. 146, 194 ; Coppin v. Coppin, 2 P. W. 291 ; Orrell v. Orrell, 24 L. T. Rep. 245 ; L. Rep. 6 Ch. 302; Boyse v. Colclough, 24 L. J. 7, Ch., Wood, V.C.). And Story, in his work on the Conflict of Laws, p. 652, says: “ It is clearly established at common law that the law of the place where the property is locally situate is to govern as to the capacity or incapacity of the testator to the extent of his power to dispose of the property and the form and solemnities to give the will or testament its due attestation and effect.
As to the adoption of the Wills Act in the Colonies, see Hayes & Jarman's Concise Forms of Wills, 10th edit., p. 65; 4 Dav. Con. 350, 3rd edit.
Finally, it may be observed that the judges have followed the principles as at first laid down in Bremer v. Freeman and Enohin v. Wylie (sup.),
and from these cases and the cases subsequently decided may be deduced the following propositions, viz. : (1.) The will of a naturalised foreigner residing at the time of his death abroad, but who has executed a will whilst resident in England according to the law of England is valid, and such will will be admitted to probate under 24 & 25 Vict. c. 114, s. 2: (In the Goods of Gally). (2.) A foreigner, whether naturalised or not, can, according to the provisions of the Naturalisation Act 1870 (33 & 34 Vict. c. 14, s. 2), make a will : (Sharp v. St. Sauveur; De Geer v. Stone). The Act does not deal with what is to be the form of the will : (In the Goods of Von Buseck). (3.) The Wills Act applies only to persons having an English domicile: (Bremer v. Freeman; Enohin v. Wylie). (4.) The will of a foreigner (whose domicile of origin was English), executed abroad, such will being executed according to the formalities prescribed by the Wills Act, is invalid, notwithstanding the 24 & 25 Vict. c. 114, s. 2: (In the Goods of Von Buseck, Bloxam and others v. Favre and others; In the Goods of Keller). (5.) In order to pass leaseholds in England the will of a British subject, or of a foreigner dying abroad, must have been executed according to the formalities prescribed by the Wills Act: (Freke v. Lord Carberry ; De Fogassieras v. Duport). (6.) An alien who is not naturalised, and at the time of making his will or death resides in England, has power to dispose of real and personal estate situate here by a will made according to the formalities prescribed by the Wills Act : (In Bloxam and others v. Favre and others ; Story's Conflict of Laws, p. 642). (7.) The lex loci sitæ governs the will of immovable property both as to the testamentary capacity of the testator, and as to the forms and solemnities necessary to give the testament effect : (Story's Conflict of Laws, p. 652; Nelson's Private International Law, pp. 146, 194; Coppin v. Coppin, 2 P. W. 291; Orrell v. Orrell (24 L. T. Rep. 245; L. Rep. 6 Ch. 302 ; Boyse v. Colclough (24 L. J. 7, Ch., Wood, V. C.). (8.) And as a general proposition the construction, effect, and validity of wills is determined as to real or immovable property (including chattels real) by the law of the country where the property is situate, and as to personal or movable pro. perty by the law of the country in which the testator at the time of his death had his domicile.
Circuits.-- There was a slight decline in the number of actions tried on circuit, and in the amount recovered. It may be noticed that actions for recovery of land, rent, &c., and trespass relative to lands and houses, were fewer on circuit than in London and Middlesex, and that actions for libel apparently tend to increase both on circuit and in London and Middlesex.
For the first time details are given in table XXVI. (d) as to the amount and disposal of business at each assize town. It appears that more than 55 per cent. of the causes were entered at four towns-Birmingham, Leeds, Liverpool, and Manchester. About 50 per cent. of the whole number of actions were tried on the Northern and North-Eastern Circuit. No action was entered or tried at the following towns : Huntingdon, Aylesbury, Oakham, Devizes, or Salisbury, Welshpool, or Newtown, Lampeter, and Brecon. At the winter assizes only one action was entered at each of the following places : Guildford, Lewes, Hertford, Chelmsford, Bedford, Nortbampton, Reading, Oxford, Monmouth, Dorchester, Taunton or Wells, Dolgelly, Ruthin, and Mold; at the summer assizes only one action was entered at Hertford, Cambridge, Ipswich, or Bury St. Edmunds, Northampton, Carlisle, Oxford, Shrewsbury, Dolgelly, Ruthin, Mold, Haverfordwest, and Presteign. Of the total amount recovered (£119,550) more than one-half (£61,368) was recovered on the Northern Circuit. The largest number of days on which actions were tried at any town was 55, at Liverpool.
The following statement shows the business on each Circuit.
CIVIL JUDICIAL STATISTICS, 1894.
(Continued from page 177.)
VI.--QUEEN'S BENCH DIVISION. In the Queen's Bench Division, though the total writs (Central Office, 42,584 ; total, 71,777), were not so many as in 1893 (Central Office, 45,544 ; total, 75,120), they exceeded by 5 per cent. the average for 1890-4. There was a decline of 3:4 per cent. in appearances, and there was a falling off in ordinary summonses, and in motions set down and heard.
The total actions entered and disposed of were
South-Eastern (Home Divi
sion) South-Eastern (Norfolk Divi
19 171 354 235 71 99 37
15 131 260 159 46 84 28 91
12,044 61,368 24,097 2,798 3,060
28 188 355 256
60 112 40 82
23 131 279 178
36 86 33 56
3,558.3 14,446 4 60,704 7 23,918.5 3,513.5 6,257-3 2,362-8 8,6674
Division) South-Eastern (Nor
folk Division) Midland Northern North-Eastern Oxford Western North Wales and
Chester South Wales
1,070,868 3,319,926 4,239,368 4,736,453 2,934,162 2,764,278
38,245 17,659 11,912 18,502 48,903 24,681
London and Middlesex.-During 1894, 284 actions were set down in the short cause list, which was instituted on the 1st Jan., and 214 cases were tried, £44,990 being recovered. These actions were inserted in a special list on Saturdays. In 1894 about a month to five weeks usually elapsed between the issue of the writ and the trial of such actions, except in cases where there was a postponement at the instance of the parties.
It would appear from an examination of all the actions tried in 1894, that the average period from the date of the writ to judgment was fully five months, and that if there were an appeal over three months elapsed before the final judgment. In cases in which there was a longer period the delay was between the date of the writ and the entry of the action for trial, and was due, as a rule, to the parties.
Of 500 actions entered successively in March, April, and May 1895, only 217 were entered within three months from the date of the writ, and of these 68 were entered under Order XIV., r. 8 (6.) in the short cause list.
The number of actions tried in 1894 in the Queen's Bench Division was considerably larger than the annual average in any quinquennium since 1876. It is true that the number of actions standing for trial was less than in previous years; for example, the number of actions standing for trial on the 13th Oct. for five years was as follows :
Bills of Sale.--In bills of sale there was a slight decrease as compared with the figures for 1893. The number has remained almost stationary since 1890. They fell from 49,074 to 13,355 when the new Act came into operation in 1883; and other great falls occurred in 1889 and 1890. The Deeds of Arrangement which have generally varied from about 3000 to 4000 were somewhat less.
Sittings of the Judges. In table XXXII. is a return is sittings of judges of the Queen's Bench Division, to that published for many years as to the sittings of the Chancery judges. The return is uot complete, no record having been kept of the sittiings of some of the judges. The number recorded for each judge varied from 184 to 223, the average being 202 days. Of the total number of sittinge more than 35 per cent. were on circuit.
District Registries.-In the district registries their is an increase of over 2 per cent. in writs (29,193) and of 10 per cent. in judgments (9910); a decrease of .8 per cent. in appearances (6889) and of about 2 per cent. in fees (£30,925). Taking the towns in which more than 500 writs are issued, there is a slight decrease of writs at all of them except Newcastleon-Tyne, Sheffield, and Swansea.
Jurors.--Among other new tables is one (LXXX (b) stating the number of jurors summoned. According to the returns of the numbers in the jurors'
books, there were in the County of London about 103,000 special jurors, 17,700 common jurors; in the County of Middlesex, special jurors 2140, common jurors about 16,000. In London and Middlesex the actual number summoned was—common jurors 11,681 and special jurors 5579. The corresponding figures for the Cirouits were 18,046 and 5239.
Election Petitions.—Table XXXVII. gives some details of a kind not before published as to election petitions. In the case of the Parliamentary election petitions from 1890 to 1894–15 in all—the respondent was unseated in five cases. Of the 15 petitions 12 were lodged in 1892 after the general election. The total costs of petitioners and respondents brought in were £17,342, the costs allowed £9078. In the same period there were 13 municipal election petitions, and in sever cases the elections were held void.
VII.-PROBATE, DIVORCE, AND ADMIRALTY DIVISION. Probate. There was a slight decrease in probate writs, and a slight increase in actions tried. The total grants were somewhat less than they were in 1890-94, probably because the death rate in 1894 was low-16:6 per 1000 against an average death rate of 19.2 in the ten previous years. In the returns of the District Probate Registries one is struck by the large proportion of the business transacted at a few places. No less than 35 per cent. of the probates and administrations were granted in Lancashire and the West Riding of Yorkshire. The letters of administration were about 30 per cent. of all the grants
Divorce.-- There was a slight increase in the number of petitions for divorce-547--and in the number of suits tried (980), and a slight decrease in the decrees nisi. Of the total suits tried (980) about 12 per cent. wero dismissed. It will be noted that the various petitions (366) by wives, including those for restitution of conjugal rights, exceeded the petitions (338) by husbands. The number of petitions in forma pauperis was the largest-35--in any year. In an earlier part of the Introductiou attention is called to the information for the first time returned in annual tables Nos. XLIX. and L.
Admiralty.—There was an increase of 22:4 per cent. in the number of suits instituted in the Admiralty Division. The bulk of the cases were as usual claims for salvage and for damages by collision. There was also a a large number of “other causes. The actions tried were 241, as against 224, the references to the registrar and merchants as assessors 98, as against 102.
VIII.-RECEIPTS AND FXPENDITURE. The expenditure for 1894-95 of the Court of Appeal and High Court was £637,902, the receipts being £489,649 and the net charge £148,253. The receipts from stamps on proceedings were the smallest in any year since 1884, and showed a decrease of about £24,000 as compared with the average receipts for the past five years. In Bankruptoy there was an excess of receipts over expenditure of £8993.
XIII.—THE MAYOR'S COURT AND BOROUGH COURTS, &c. In the Mayor's Court is a slight decrease in the number of actions, &c., entered (11,114), but a great increase in the amount claimed. The amount for which judgment was entered fell from £94,158 in 1890-94 to £89,841 in 1894. The majority of the actions, as appears from the details for the first time published in table 77 (c), are for goods sold and delivered, breach of contract, and on bills of exchange.
There is a considerable increase in the number of plaints in the Borough Courts of Record and other inferior courts. Out of a total of 20,911, no fewer than 18,051 were entered in the Salford Hundred Court, the Liverpool Court of Passage, and the Bristol Tolzey Court.
IX.—THE LORD CHANCELLOR'S JURISDICTION IN LUNACY The petitions in lunacy presented and the orders for inquiry (143 and 49 respectively) were somewhat fewer than in 1890-94. Of the 47 inquiries held, only three were with juries. The rest were conducted by the Masters in Lunacy, without juries. In 44 cases the alleged luaatics were found to be insane. In three instances the persons alleged to be insane were found to be incapable of managing their affairs, but capable of managing themselves, and not dangerous to themselves or others.
Estimated assets (bankruptcies, &c.)
(deeds of arrangement)
2,398,578 2,740,356 3,161,675 3,161,574
The above comparison is with 1890-94. As compared with the failures for 1893, those for 1894 showed a reduction of nearly 2 per cent. ; but it has been pointed out that “this reduction is not by any means uniformly characteristic of all the various classes of trades. Out of sixty-five groups of the principal trades into which the failures under bankruptcies and deeds have been classified in the department, thirty-six groups show an increase of liabilities amounting to about £2,000,000, while twentynine show a decrease amounting to about £2,300,000.”
XVI.-COMPANIES WINDING-UP. The chief facts as to the winding-up of companies may be shown thus :
X.-RAILWAY AND CANAL COMMISSION. Before the Railway Commissioners there were 31 applications, nine being for reasonable facilities, and eight as to undue preference. Twelve were granted, and nine were refused. The court sat twenty-one days, exclusive of the days the ex officio commissioner sat to hear appeals from the registrar. It may be pointed out that on the 25th Aug. 1894 was passed the Railway and Canal Traffic Act, sect. 2 of which declared that in proceedings on disputes between railway companies the Com. missioners should have no power to award costs on either side, unless they were of opinion that either the claim or the defence had been frivolous and vexatious.
XI.-PALATINE COURTS. In the Court of Chancery of the County Palatine of Lancaster was a slight decline in originating proceedings, decrees and orders, warrants and summonses, bills taxed, and amount of costs. For the first time appear returns of the Court of Chancery of the County Palatine of Durham. But for various reasons they are incomplete. They show fifty-six writs and originating summonses, and fifty-six actions tried.
XII.--COUNTY COURTS. In 1894 was issued the largest number of plaints ever issued in the County Courts—1,167,866. There was an increase in the plaints above £50 (1339) entered by consent. In actions determined there was an increase of 7 per cent., and of more than 9 per cent. in the amount recovered (£1,859,947), the largest amount recovered in any year. There was a considerable increase in the number of debtors imprisoned ; they were no fewer than 7648, as against 6777 in 1890-94.
The Equity suits and matters (806) remained stationary, while there was a slight increase in the Admiralty suits (663). Though the number of actions remitted from the High Court under sects. 65 and 66 of the County Court Act 1888 was about the same as in 1893, it was somewhat more than the average in 1890-94. Including interpleader proceedings, it was 1810 as against 1780 in the latter period.
There was an increase in plaints under the Employers Liability Act (533 as against 460 in 1890-94), and in the amount recovered (£11,343 as against £9208). On the other hand, the number actually tried--only 162 was somewhat less,
In Appendix A. are extracts from the report of the Departmental Committee on Civil Judicial Statistics (p. 239).
It is desired that attention be called to any errors or omissions discovered in the introduction or tables.
Invaluable assistance in preparing the present report has been given by Mr. W. J. Farrant, superintendent of the Statistical Department of the Home Office. He has spared no pains to make the returns accurate and complete, and to him are due very many suggestions of which I have endeavoured to make use.
JOHN MACDONELL. July 1896.
COMMENTS ON CASES.
The intention of the Legislature in passing the sections in the various Bankruptcy Acts dealing with the subject of fraudulent preference was to secare a rateable distribution of the bankrupt's estate among those having claims upon it. Sect. 48 of the Bankruptcy Act 1883 at present in force deals with preferences of a “ creditor” the instances within that section, which it declares to be fraudulent and void as against the trustee in bankruptcy in the case of an adjudication following a bankruptcy petition presented within three months. In Re Paine; Ex parte Read v. Barnard (75 L. T. Rep. 316) the debtor shortly before committing an act of bankruptcy had paid a sum into his bank for the express purpose of meeting an accommodation acceptance which he had discounted with the bank, and Mr. Justice Williams decided that, as the person giving the acceptance was a surety who might have been, although in fact he had not been, called upon to pay, there was a fraudulent preference in his case, as being a creditor with a right of proof under the above section : (cf. Lacey v. Hill; Crowley's claim, 30 L. T. Rep. 484 ; L. Rep. 18 Eq. 182).
The Lord Chief Justice (Lord Russell) has left town for Dublin. The following legal octogenarians figure in the 1897 peerages, Lord Field, Lord Esher, Lord Penzance, and Lord Grim thorpe.
Mr. Justice Hawkins will attend at the Old Bailey on Monday in order to proceed with the hearing of the Scott-Russell libel case.
During the absence of Mr. Justice Williams on the Western Circuit, for which he leaves London on the 11th inst., companies winding-up business, &c., will be taken by Mr. Justice Romer in his own court every Monday. Mr. Justice Williams will return to London about the middle of February next.
“Mr. Justice Chitty and Mr. Justice Romer in Chancery," is the title of the tenth of a series of articles on Her Majesty's Judges and Famous Lawyers now appearing in Lloyd's Weekly Newspaper.
The appointment by the Lord Lieutenant of Ireland of twenty-three Assistant Commissioners, to administer the new Irish Land Act, was officially announced on Saturday.
Sir Richard Webster, Q.C., M.P., the Attorney-General, is at present staying at his country house at Cranleigh, Surrey. He will visit the Isle of Wight early this month in order to address his constituents.
Mr. J. C. Bigham, Q.C., will preside at the next smoking concert of the Legal Musical Society, which will take place at the Freemasons' Tavern on Friday, the 15th inst.
The Solicitor-General for Scotland (Mr. C. Scott Dickson) will preside at the house dinner of the Scottish Conservative Club, Edinburgh, on the 30th inst., at which Sir William T. Marriott is to be the guest of the club.
Mr. S. Pope, Q.C., will preside at the complimentary dinner to be given to Mr. M'Connell, Q.C., by the members of the Northern Circuit, at the Hôtel Métropole, on the 16th Jan., in celebration of his recent appointment as chairman of the County of London Sessions. Among those who have accepted invitations to be present are the Lord Chief Justice, the Speaker of the House of Commons, Mr. Justice Wright, Mr. Justice Collins, Mr. Justice Bruce, Mr. Justice Kennedy, Mr. Justice Barnes, Mr. Bigham, Q.C., M.P., Mr. Loveland Loveland, Mr. J. Dickinson (metropolitan police magistrate), and Mr. J. Sheil (metropolitan police magistrate).
The United Law Clerks' Society receives a legacy of £300 under the will of the late John James, solicitor, of Pall Mall.
The Solicitors' Managing Clerks' Association has received an anonymous donation of one hundred pounds. What will they do with the money ? It is generally thought that their small expenses were more than met by the annual subscription of ten shillings and sixpence, and that they were not open to receive donations. The society is not a charitable institution. Possibly the donation was intended for the United Law Clerks' Society.
Mr. J. W. Leonard, Q.C., the well-known Cape lawyer, has entered at the Middle Temple, and has asked the Benchers to call him to the Bar after keeping three instead of twelve terms—a practice observed in the case of lawyers hailing from the Australian colonies. The South African “ Star" is indignant that such an application should be necessary in the case of a man who is already a Queen's Counsel at the Cape, and who has been Attorney-General there.
There was an amusing scene at the Spalding Sessions-house last week, when Edward Thompson, a tramp, was sentenced to one month's hard labour. Prisoner : No; this is not a full court. You cannot give me that. The magistrate conferred with the clerk, who admitted that the prisoner was perfectly right, and that the magistrate could not give him more than fourteen days. The magistrate : Very well, then-fourteen days. You are perfectly entitled to that.
There appears to be an increasing tendency in Scotland to invoke the divorce laws in connection with matrimonial disputes. During last year there were 184 consistorial cases, including divorce, separation and aliment, and adherence, compared with 155 cases the year before. Of last year's cases, 124 were initiated by wives and sixty by husbands; and in eighty-four instances infidelity was the ground of action. In 1889 the total number of cases was only 129; in 1890, 110; in 1891, 143; in 1892, 149; in 1893, 150; and in 1894, 138.
A great sensation has been created in New York society by a decision just rendered by Judge Russell, of the New York Supreme Court, that divorces obtained by New Yorkers in certain Western States, where the divorce laws are extremely loose, will not be recognised in New York State. Many prominent New York society women who have obtained Western divorces now find themselves in a very unpleasant position. The question will be carried to a higher court.
Messrs. William A. Crump and Son, of Philpot-lane, have admitted into partnership Mr. William Horace Charles Crump, the eldest son of Mr. William John Crump. The style of the firm will remain unchanged. The members constituting the firm will consist of three generations, viz., William A. Crump (father), Wm. J. Crump (son), and W. H. C. Crump (grandson).
The rule that a judgment obtained by a creditor of a testator against the personal representative gives the judgment creditor priority over all other debts of the testator of equal degree has been long established, and is founded on the superior diligence of the creditor in recovering judgment: per Lord Justice Fry in Re Maggi; Winehouse y. Maggi (46 L. T. Rep. 462; 20 Ch. Div. at p. 549). But, in order to obtain this privilege, the creditor must actually sign judgment, otherwise he will obtain payment pari passu with other creditors of equal degree. Therefore, in Re Gurney; Clifford v. Gurney (75 L. T. Rep. 332), where ander Order XIV the plaintiffs had obtained liberty to sign final judgment in an action against the administratrix of their debtor, but judgment was not actually signed and entered, the chief clerk's certificate that they were entitled to priority over other creditors was accordingly varied.
The principles upon which the court acts in making winding-up orders under sect. 79, clause 5, of the Companies Act 1862, in determining that it is “just and equitable that the company should be wound up,” are those indicated in the partnership case of Baring v. Dix (1 Cox. 213), where the court decided that it would dissolve a partnership where it appeared that the business could not be carried on according to the true intent of the partnership articles, although one partner objected. So where, as the expression is, “ the substratum of the company is gone,” and the main object which induced its formation has become impossible of accomplishment, the wish of the majority of the shareholders expressed at a meeting will not prevent the court, at the instance of the minority of the shareholders, from making an order to wind-up the company under the above clause. “ The mere fact of there being a fraudulent representation or fraudulent representations in the prospectus is not sufficient. A company may, if they think fit, waive the fraud and complete the bargain, and g? on, or they may vary the bargain on the ground of fraud, and complete it with variations. As to that, the majority of the company in general meeting assembled are the best judges, but where the whole thing is gone the majority cannot bind the minority to enter into an entirely new speculation, and it never has been so held :” (per Sir G. Jessel, M.R., in Re Haven Gold Mining Company, 46 L. T. Rep. 322; L. Rep. 20 Ch. Div. 15, p. 164). Therefore, in Re Thomas Edward Brinsmead and Sons Limited (noted ante, p. 132), notwithstanding the wishes of a majority of the share holders, at a meeting held under an order of the court, that the company's business should be continued, Mr. Justice Williams, on the ground that
The practice hitherto carried on at 19, Great Winchester.street, under the style of “Edmonds and Co.” will, on and from the 1st Jan. 1897, be carried on in the names of “ Edmonds and Rutherford.” There is no change in the firm.
An nteresting decision has just been given by the French Court of Cassation on the question whether a husband has the right to attach the condition to the inheritance to his fortane that his widow must remain unmarried. Madame Fauquet, of Lisieux, opposed the validity of this condition on the ground that it was contrary to public order and morality, lost her case at Lisieux, won her appeal at Caen, but has just lost it again by the final decision of the Paris Court of Cassation. It was the cousins of Madame Fauquet who supported the validity of the will.
Mr. William Henry Thomas, the new representative of Cheap, is a solicitor and a partner in the firm of Parker and Thomas, of 18, Ironmonger-lane. He acts as overseer of St. Martin Pomeroy, a parish within the ward, and is a liveryman of the Spectaclemakers Company. He is also a member of the United Wards Club, and was for four years a prominent member of the evening service choir of St. Paul's Cathedral. During three of those years he served on the choir committee. Mr. Thomas has been appointed the returning officer for Chingford by the Essex County Council. He was admitted in 1891.
The following are the commission days fixed by the judges (Justices Mathew and Vaughan Williams) for holding the Winter Assizes on the Western Circuit, viz. : Devizes, Monday, the 11th Jan. (special jury cases being taken on the 13th Jan.); Dorchester, Friday, the 15th Jan. (special juries on the 18th Jan.); Taunton, Tuesday, the 19th Jan. (civil business on the 22nd Jan.); Bodmin, Monday, the 25th Jan. ; Exeter, Saturday, the 30th Jan. (special juries the 2nd Feb.); Winchester, Friday, the 5th Feb. (special juries the 8th Feb.); Bristol, Friday, the 12th Feb, (special juries the 15th Feb.). Mr. Justice Williams will go round the circuit alone until Exeter is reached, when Mr. Justice Mathew will join bim.
A novel and interesting question has been raised in connection with the election of a district councillor and guardian for the parish of South. boarne, in the Christchurch district. The clerk to the district council issued the usual notices for the filling of a vacancy caused by the resignation of a member, but no candidate was forthcoming, and no ong was nominated. A deadlock in affairs has consequently arisen, as the Local Government Act does not provide for such a case. The local authorities have, however, instructed their clerk to write to the Local Government Board inquiring what to do, and their reply is awaited with considerable interest, as it is believed to be the first case of the kind that has arisen since the passing of the Act.
The Times is requested by Mr. and Mrs. Crackanthorpe to state that, according to the medical evidence, there is no doubt that Mr. Hubert Crackanthorpe met with his death on the evening of Thursday, Nov. 5. He had been with his mother until 11.30 that evening, when be went for a walk, and was last seen at 11.50 p.m. on the Quai Voltaire, within 300 yards of which place his body was found seven weeks later. For the last two months of his life he was living in Paris. During that period he never left it for a single day, and the circumstances of every day of his life there are perfectly well known to his family. Mr. and Mrs. Crackan. thorpe, having been much pained by numerous statements in the Press for which there is no foundation, earnestly request that this statement may be accepted as final, and that the Press will generously abstain from further reference to a subject so deeply painful to them.
According to the new metropolitan valuation list the gross value of London has now reached the enormous total of £43,461,733 38., the net valae being £36,115,407 10s. The previous one was, gross £41,239,847 12s., net being £34,230,334 15s. This list shows a decided advance in respect of Government property, which at last seems to be going to bear its fair share of the rates. An example of this is shown in the parish of Islington, where the figures in April 1895 were £4189, and are now shown as £10,391. In St. George's, Hanover-square, there is an increase under this one head of £1292. In the parish of St. Margaret and St. John, Westminster, the figures show a still greater disparity, as in 1895 Government property was valued at £52,828, whilst this time it is shown at £89,159.
The will, dated the 16th Aug. 1892, with a codicil, dated the 25th Sept. 1896, of Mr. John James, solicitor, of 13, Suffolk-street, Pall Mall East, who died at Holybourne, near Alton, Southampton, on the 30th Oct., was proved on the 10th Dec. by Walter James (the brother), Frederick Woolfe, and Samuel Wilks (president of the Royal College of Physicians), the execators, the value of the personal estate amounting to £84,213. The testator bequeaths £300 to the United Law Clerks' Society ; £200 each to the St. John's Foundation School, the London Orphan Asylum, and the Orphan Working Schools (Haverstock-hill); £50 to the Alton Cottage Hospital, and £50 to Miss Cooper, the matron thereof; £1000 each to his sisters Clara and Emily; £7000 to his brother Walter James ; £5000 to his brother Herbert James; £2500 each to his nieces Edith and Ethel ; £200 and his office furniture and library to his partner Frederick Woolfe ; 500 guineas to Samuel Wilks ; and many legacies to relatives, friends, clerks, and servants. The residue of his real and personal estate he leaves, apon trust, for his two sisters Clara and Emily, and the survivor of them. At their respective deaths they are to have power of appointment over £5000, and the ultimate residue is to go, as the survivor of them shall appoint, to their brothers, nieces, cousins, or descendants.
Sir Frederick Thesiger, afterwards Lord Chelmsford, being engaged in the conduct of a case, objected to the irregularity of a learned serjeant, who repeatedly put leading questions in examining his witnesses.
" I have a right,” maintained the serjeant doggedly, “ to deal with my witnesses as I please." "To that I offer no objection,” retorted Sir Frederick; “ You may deal as you liķe ; but you shan't lead."
Mr. Justice Ventris states that a man cannot have an estate put into him in spite of his teeth.”
Mr. Justice Maule once asked, “What difference is there between • discretion' and 'sound discretion'?”
Lord Brougham defined a lawyer as a legal gentleman who rescnos your estate from your enemies, and keeps it himself."
In Brown v. Littin (1 P. Wms. 140), Lord Keeper Harcourt said, " that this being an island, all imaginable encouragement ought to be given to trade."
Mr. Commissioner Fane, in his examination before a committee of the House of Lords, calls the citing of an unreported case "pocket-pistol law.”
In The Protector v. Geering (Hardres, 99), Atkins says, arguendo, “Errors are like felons and traytors; any man may discover them ; they do caput gerere lupinum.
Hastelow v. Jackson (8 B. & C. 221). “I accede to the authority of that case, although I think it a very strong decision. It does not convince me: it overcomes me”: per Baron Alderson in Mearing v. Hellings (14 M. & W. 711, 712).
The report of the case of Swift v. Stevens (8 Conn. 439) concludes as follows : “ Peters, J., having received, during the argument of this case, intelligence of the death of his son, Hugh Peters, Esq., of Cincinnati, left the court-house----multa gemens, casuque animum con. currus-and gave no opinion."
In the case of Drake v. State (51 Ala. 30) is this note in the margin by the reporter : "The reporter does not believe that the opinion in this case was intended to change the settled rule of law as laid down in the several cases cited, and he has therefore made the headnote conform to those cases, and not to the language of the opinion.”
Sir Fletcher Norton, whose want of courtesy was notorious, happened, while pleading before Lord Mansfield on some question of manorial right, to say, “My Lord, I can illustrate the point in an instant in my own person. I myself bave too little manors.' “We all know it, Sir Fletcher,” interposed the judge, with one of his blandest smiles.
A curious instance of the plea molliter manus imposuit occurs in a case reported in Levinz. The plea to an action for assault and battery was that the female defendant, being the wife of an esquire and justice of the peace,
the female plaintiff being the wife of a doctor in divinity, assumed to go before her at a funeral at Plymouth, whereupon the defendant gently laid her bands upon to displace her, as she lawfully might. The court, without deciding the question of precedence, gave judgment for the plaintiff.
No man ought to fill the position of both advocate and judge at the same time and place. The following anecdote sets this in a stronger light than any discussion of the subject. Whilst a prisoner was being tried before a commissioner, the solicitor for the defence asked his counsel to raise some frivolous objection. The counsel refused, on the ground that the commissioner would overrule it. The solicitor replied, “Oh! he is all right. I have just given his clerk a brief”: (Sir James Stephen, in The Nineteenth Century, Dec. 1877, p. 744).
In Reg. v. Hartnett (Jebb C. C. 302) the judge omitted, in pronouncing sentence on a conviction for murder, to order that the bodies of the prisoners should be buried within the precincts of the gaol, as directed by statute ; but on a subsequent day, on ruling the book at the close of the same assizes, in the absence of the prisoners, ordered the above clause to be inserted. It was held by a majority of the judges that the original sentence of death was illegal, because it did not contain an order that the bodies should be buried within the precincts of the gaol ; that the statute was not merely directory, but made the order a part of the sentence. The prisoners were discharged.
NOTES OF RECENT DECISIONS NOT
HIGH COURT OF JUSTICE.-QUEEN'S BENCH DIVISION. Ecclesiastical Law- Title to Pews in Church-Claim by Prescription
Act of Repairs-Claim as Lay Rector to Seat in Chancel.--Action tried by Charles, J., without a jury. The plaintiff claimed that a writ of prohibition be directed to the Chancellor of the Diocese of Ely, and to the Rev. H. B. Wilkinson, vicar, and Lewis Jarvis and Arthur Clode, churchwardens, of the parish of Sharnbrook, in the diocese of Ely, to prohibit them from further proceeding in the matter of an application by the vicar and churchwardens to the Chancellor for (amongst other things) a faculty to erect new seats or stalls for the vicar and choir in the chancel of the church. Mr. Stileman-Gibbard (the plaintiff in prohibition) alleged a freehold interest in the sites proposed to be occupied by the new seats or stalls; and the question now was whether the plaintiff had made out a title against the Ordinary to the sites in question as owner and occupier of an ancient house in the parish called Sharnbrook-house, or as lay rector of the parish. Sharnbrookhouse was an ancient house in the paris built about 200 years ago, and in 1792 was bought by a predecessor in title of the plaintiff. In 1800 the plaintiff's predecessor in title acquired the lay rectory. When the house was purchased there were at the west end of the chancel of the church two large pews, one on the north side and one on the south