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Superior Courts: Exchequer.

having expired on the first day of term, it was held that the prisoner could not be brought up until the following term.

This was an application under the compulsory clause of the Lords' Act, 32 Geo. 2, c. 28. s. 16.

On the part of the prisoner, it was objected that the time was insufficient. The date of the notice was 13th October, 1835, and the defendant was thereby required to appear within the first seven days of the term next ensuing the expiration of the notice. The act authorised the creditor to require "the prisoner (on giving twenty days notice in writing to him, that such creditor designs to compel such prisoner to give into the Court within the first seven days of the term which shall next ensue the expiration of the said twenty days, upon oath, a true account of his estates) to deliver up his estates." It was submitted that in reckoning the twenty days, the time must be reckoned exclusive of the first day, and inclusive of the last day, according to the rule of Court, by which that regulation was required to be adopted in computing time on rules. In this case, according to this arrangement, the twenty days' notice would expire on the first day of term. The question would turn upon the construction which was to be put on the sentence in the act, and whether the word which must be considered to be the relative to the antecedent "seven days" or " term." If the latter, the insolvent, it was clear, could not be brought up until next term. A case to this effect had already been decided in the Court of Common Pleas,

On behalf of the creditor, it was urged, that the prisoner was bound to appear in the present term. In a case cited, where the notice expired on the 8th November, within the term, and the prisoner was brought up on the 26th; this was held to be regular, although the seven days were within the same term in which the notice expired.

The Court said, that in computing the twenty days, it was clear the first day of the term must be included. The only other question was, what was the antecedent to the word "which?" It was clear, from the decision of the Court of Common Pleas, that the word "term" was applied to, and not "seven days." That decision, which was more recent than that cited on behalf of the creditors, must govern this case. The prisoner could not therefore be brought up until next term.

Prisoner remanded.

Brixton v. Squires, H. T. 1836. Excheq.

DEFECTIVE PLEA.-JUDGMENT AS FOR WANT
OF A PLEA.-NECESSITY OF RULE TO PLEAD.
-RULE TAKEN OUT IN WRONG NAME.

A defective plea having been delivered, and
judgment signed as for want of a plea,
the judgment is irregular if no rule to
plead has been given. A rule to plead

437

being taken out in a wrong name, is a nullity.

but it

This was a rule for setting aside judgment and execution, for irregularity. The declaration, it appeared, was in debt, and the defendant had pleaded the general issue; was defective, as the words "never was indebted," were omitted. The ground of objection was, that no rule had been given to plead.

Cause was now shewn ; and it was contended that a plea having been delivered which was a nullity, the defendant waived the necessity of giving a rule to plead, judgment not having been signed until after the time for pleading had expired, and no good plea in the meantime delivered. A case was cited, where a plea of solvit ad diem, concluding with a verification, having been improperly entered in the General Issue book, and judgment being entered as for want of a plea, the defendant being entitled to an imparlance, the judgment was held to be regular; and the Court said, that although the plea was not good, because improperly entered, it operated as a waiver of the defendant's right of imparlance, in the same manner as, in a common case, an improper plea being put in, in abatement, superseded the necessity of a rule to plead. In another case also, the defendant having pleaded in abatement after the four days, though no notice to plead had been regularly served, the plaintiff was held to be entitled to sign judgment.

On the other hand, it was alleged, that the defendant never intended to waive the rule to plead. Search was made for it, but it could not be found; and it was eventually discovered, that it was taken out in the wrong name.

The Court said, that a case had occurred in this Court, where a defendant had pleaded a defective plea within the period allowed for pleading; and a question arose thereon, whether by so pleading, he waived the rest of the time. It was however held that he did not, and that a judgment signed was irregular. The same rule must also apply to this case. The plaintiff having treated the defendant's plea as a nullity, and in fact, as if there was no plea at all, the judgment was clearly irregular, for want of a rule to plead, the rule being in a wrong name.-Rule absolute.

Warne v. Beresford, H. T. 1836. Excheq.

JUDGMENT IN COURT OF COMMON PLEAS,
LANCASTER. APPLICATION FOR EXECU-
TION THEREON.- AFFIDAVIT OF DEFEN-
DANT'S REMOVAL OUT OF JURISDICTION
OF COURT.-CERTIFICATE OF PROTHONO-
TARY.

It is necessary to produce an affidavit of the
defendant's removal out of the jurisdiction
of the Court of Common Pleas at Lancas-
ter, besides a certificate of the Prothono-
tary of the Court, and of the amount for
which judgment is recovered, in order to
obtain execution thereon.

This was a motion for leave to issue execu

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tion on a judgment obtained after verdict in the Court of Common Pleas, Lancaster. The application was made merely on a certificate of the Prothonotary of the Court, and no affidavit of the defendant's removal from the jurisdiction, or of any search having been made for him or his goods, was produced; and it was submitted that this was sufficient. The act 4 & 5 W. 4, c. 62, s. 31, required, that whenever any plaintiff or defendant in any suit, in which judgment should be recovered in the Court of Common Pleas at Lancaster, should remove his person or goods from or out of the jurisdiction of the said Court, it should be lawful for any of the Superior Courts at Westminster, on a certificate from the Prothonotary of the Court of Common Pleas, or his deputy, of the amount of final judgment obtained, to issue a writ of execution thereon, for the amount of such judgment, and the costs of such arrest, &c., to the sheriff of any county, &c., against the person or goods of the party against whom such final judgment should have been obtained.

The Court said, that an affidavit of the removal of the defendant's person or goods must be obtained.

Rule refused.-Duckworth v. Fogg, M. T. 1835. Excheq.

NOTES OF THE WEEK.

Royal Assents.

Annual Indemnity.

House of Commons.
For Second Reading.
Descents and Heriots.
Durham Courts.

Tithes Voluntary Commutation.
Registration of Aliens.
Stamp Duties.
Ecclesiastical Leases.

In Committee.

Registration of Voters.
Tithes Commutation.
Manorial Boundaries.
Escheats.

Election Expenses.
Marriages in England.
Registration of Births, &c.
Turnpike Roads Consolidation.
Intimidation of Voters.
Final Register of Voters.
Passed.

Prisoners' Counsel.

Bills to be brought in.
Bribery Acts Consolidation.
Enfranchisement of Copyholds.
Titles by Copy of Court Roll.
Law of Libel.

Offences against the Person.
Prosecutions for Conspiracy.

Costs and Actions of Private Companies.

Recovery of Tenements.

Inclosure of Fields.

Executions for Murder.

LAW BILLS IN PARLIAMENT.

House of Lords.

Second Reading.

Law of Wills.

Law of Executors.

Transfer of Property.
Municipal Corporations Amendment.
Court of Chancery (Ireland).

In Committee.

Ecclesiastical Courts Consolidation. Passed.

Ecclesiastical Leases.

West India Courts of Justice.
Annual Indemnity.
Cornwall Assize Hall.

Bills to be brought in.

Court of Chancery.

Abolition of Arrest.

REMOVAL OF THE COURTS FROM WESTMIN

STER.

We beg again to call the attention of the Profession to the subject of removing the Courts of Law and Equity from Westminster Hall to the vicinity of the Inns of Court, and the offices of business. At Doctors' Commons, it is found very convenient to hold the Ecclesiastical and AdmiOralty Courts in the immediate neighbourhood of the advocates and proctors; and there can be no doubt that both the profession at large and the public would be greatly benefited by the Courts of Law and Equity being held in the centre, instead of the south-west corner of the metropolis; and that the place of sitting should not depend upon the term or vacation, but be in one settled place.

A few members of the bar, who practise before the Courts at Westminster, and also before parliamentary committees, might be

Notes of the Week.-Sittings.-Answers to Queries.

439

occasionally put to some little inconveni- to receive them from the trustees. Such is Now, ence; but these gentlemen are few in num- the obvious inference, at all events.

ber; and it would be an advantage if a parliamentary bar were distinctly formed; so that the inconvenience might be entirely at an end. Besides, as the parliament does not sit during Michaelmas and Hilary terms, and sometimes adjourns for the recess over part of Easter term, the inconvenience is very limited in point of time. The present is the only opportunity that is likely to occur for effecting a change. The plan of the New Houses of Parliament is not finally settled; and we understand that it would be of great advantage in effecting the arrangements, if the present Courts could be converted into Committee Rooms, or other offices for the dispatch of the business of parliament. We trust something will be done without delay. We know that a great majority of both branches of the Profession earnestly desire the change.

SITTINGS OF THE COURTS.

Equity Exchequer.

without enlarging upon the first circumstance, it is obvious, that if the husband had the power to receive the rents in manner before alluded to, he has clearly a power to delegate that authority; and therefore the power he has executed to C. will be operative (supposing that he has a joint life interest) upon his share of the rents, &c.; because his power of attoris worded to receive them, and give reney

ceipts, in the same manner as he could have done. Had the property been properly limited, there would have been no need for him to have had any power of receiving the rents, for they would have been payable into the hands of the wife alone.

W. F.

PRIORITY OF INCUMBRANCES. P. 280. The case proposed by "Lector" is rather complicated. It may be observed, in the first place, that the share purchased from D. is not liable to any of the mortgages, and thereof the property, to one-fourth of the purchase fore in respect of it, Z. is entitled, upon a sale money absolutely. Neither is the share purchased from 4. subject to the mortgage for 6007.; and therefore, after satisfying the 8007. mortgage, Z. is entitled to one-third part of the then residue of the purchase money. With

The Lord Chief Baron will sit in Gray's Inn regard to that same share, Z. may be consi

Hall :

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Law of Property and Conveyancing.

TRUSTEES.-POWER TO RECEIVE RENTS.
P. 216.

The answer to F.'s question will, of course, depend upon the wording of the limitations in the settlement. From F.'s statement of the case, I should glean that the husband had a joint interest with the wife during their joint lives, however the ulterior limitations may have been disposed. My opinion, as above, is confirmed from two circumstances: from the cautious mode of setting forth his case by F., and from what comes out incidentally at the close of that case. From the caution F. observes; viz. in not disclosing the verbiage of the limitations in the settlement, but in stating that the property was vested in the trustees, "with the intention" of securing to the wife an exclusive life interest. From what comes out incidentally at the conclusion of F.'s case; viz." he (the husband) having no power to receive the rents, except from the trustees;" thereby implying that the husband had a power

And his

dered as assignee of the original lender of the 1000., to the extent of the portion of the 1000l. to which that share was liable, namely, to one-third of it, or 3331. 6s. 8d. right in this respect is not merged by his subsequent purchase of the equity of redemption from A. Kennedy v. Daly, 1 Sch. & Lef. 355; Mocatta v. Murgatroyd, P. Wms. 395, the third point. See also Forbes v. Moffat, 18 Ves. 384. But as to the other shares which he obtained in right of his wife, they are liable to all the charges; and in respect of them, he cannot set himself up as a prior incumbrancer, on account of his payment of the 1000%., because he, as such husband, was the person primarily liable to pay off that debt of 10007.; and when a person so situated pays off a charge, the charge merges, however limited his interest may be, and however he may indicate an intention to keep the charge on foot, even to the extent of assigning it to a trustee for himself. Astley v. Earl of Tankerville, 3 Bro. C. C. 545; Donisthorpe v. Porter, Amb. 600. To conclude, upon a sale of the property, I conceive Z. would stand thus (supposing it to sell for 20007.): he is at once entitled to 500/. in respect of D.'s share; to 3331. 6s. 8d., in respect of his prior incumbrance on A.'s share; the rest of the price of this share is swallowed up in satisfying the portion of the 8007. to which it is liable. Out of the remaining 1000/. (viz. the price of the two shares held in right of C.), he has to pay two-thirds of the 800/. and the entire 600/.: in fact these shares are not worth the incumbrances on them. He receives, therefore, only the two sums above mentioned, making together 8331. 6s. 8d.

TEMPLE.

440

QUERIES.

Queries.-The Editor's Letter Box.

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PROCESS ACT.-VARIANCE.

Does an undertaking by an attorney, on a writ of summons, having the debt and costs indorsed thereon, to appear for a defendant, (the writ turning out to be wrong, i. e. in an action on the case, instead of on promises,) waive the objection to be taken on a variance between such writ and the declaration, the latter being on promises? Vide the act 2 W. 4, c. 39, which imperatively says the process shall be according to the form contained in the schedule to the act. Vide also King v. Skeffington, 1 Dowl. Prac. Cas. 686; and other cases in Chitty's Archbold, 539; and particularly the Observations by Mr. Justice Alderson, in Richards v. Stuart, “in the Common Pleas, 10 Bing. 319, the writ in which case, being bailable, had of course the debt and costs also indorsed thereon.

A. B.

MEMORANDUM.-LEASE.

THE EDITOR'S LETTER BOX.

A. B., the lessee of a house, enters into the following agreement with C. D. "Memorandum:-I agree to let my house, situate, &c., for the residue of my lease, at 1007. a year, The Ten Volumes of the Legal Observer, under the usual covenants, to C. D., who is to and the Two Volumes of the Monthly Record, take the fixtures at a valuation. Dated 22d already published, form a complete History of of December, 1826." C. D. signs a similar the Law for the last five years. They contain, memorandum, agreeing to take the premises among many other things,-1. All the imon the like terms; and enters into possession, portant Acts of Parliament. 2. All the New and continues therein until the present time, Bills before Parliament. 3. The fullest inforpaying the rent of 1007. a year as it becomes mation on the leading subjects relating to due; but no lease is actually granted to C. D., Law Reform; as Local Courts, General Regisand the original term of A. B. in the pre-try, Imprisonment for Debt, Chancery, Bankmises will very shortly expire. It is clear that C. D. might have been compelled to accept a lease; but not having done so, a question has arisen, whether he is liable, in an action at law or otherwise, to A. B., as to the repairs; the original lease containing a covenant on the part of A. B., the original lessee, to repair, in the usual terms. CIVIS.

Practice.

COGNOVIT.-AGREEMENT.-STAMP.

Can the declaration by the defendant, in a cognovit, that in case he makes default in payment on a future day, judgment shall be entered up, and his undertaking not to bring any writ of error, and that it shall not be necessary to revive, &c., according to the usual forms, be construed as "terns of agreement," so as to make a stamp necessary? The doubt has arisen, inasmuch as in the case of Morley v. Wall, 2 Dowl. 497, where a separate memorandum was given, stating that the cognovit was not to be put in force for a fortnight,

it was decided that no stamp was necessary, inasmuch as the memorandum was separate from the cognovit; by which decision there seems an implication, that had those words been embodied in the cognovit, according to the above mentioned form, a stamp would

have been necessary.

A.

ruptcy, Ecclesiastical Reform, &c. &c. 4. Re-
views of all Publications connected with or
bearing on the Law.
mittees and Commissioners, and Parliamentary
5. Reports of Com-
Returns. 6. Legal Biography from the ear-
liest times, including Memoirs of all eminent
Lawyers who have died or retired in the last
five years, with many others. 7. All the late
Rules and Orders of Court. 8. Dissertations
and Cases connected with Conveyancing and
Property Law. 9. The Law of Attorneys.
Remarkable Trials, ancient and modern. 12.
10. Practical Points of General Interest. 11.
The Laws of other Countries. 13. Early Re-
ports of Decisions, by Barristers of the several
Courts; together with a variety of other matter,
of daily use to the Practitioner. The General
Index to the first Ten Volumes renders all this
information easily accessible.

The letters of J. T; " Civis ;" and T. P. T. shall be attended to.

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The Queries and Answers of Z; S. W; W. F. F; and "Aspiro," have been received. Gradus," T. M. D; R. F. L; "Juvenis ;"

The work mentioned by W. F. has not reached us, and consequently we can give no opinion of it.

The further letters on the Examination of

Articled Clerks shall be considered.

The Legal Observer.

SATURDAY, APRIL 9, 1836.

Quod magis ad NOS
Pertinet, et nescire malum est, agitamus.

HORAT.

ON THE ECCLESIASTICAL COURTS BILL.

AMONG the various legislative measures for amending, or altering, the administration of the law, few appear to be of greater importance, or to have excited less the attention of the legal profession, than the Bill now before Parliament, for consolidating the Ecclesiastical Courts.

The Profession generally seem not to be aware, that this Bill not merely sweeps away a number of Ecclesiastical jurisdictions, and establishes a Central Court in their stead; but contains powers and provisions, enabling this new Court to assume a concurrent jurisdiction with Courts of Equity over the administration of assets; at the same time that it confines with scrupulous care the privilege of practice to Proctors only.

If the public advantage require that a new Conrt of Equity be created, it should be made efficient for all its objects; yet, as the bill is at present framed, the proposed Court is armed with powers, sufficient indeed for the encouragement of litigation, vexation and expense, but inadequate, as appears to us, for the protection of assets, or their due administration.

So far as the bill affects ecclesiastical affairs and jurisdictions only, it is not necessary at present to offer any observation. The Bill, as to them, may probably have beneficial results; but it demands grave consideration as it regards the following points :

1st. The Administration of Assets.
2d. The Administration Bond.
3d. The Privileges of, and Regulations
concerning, Proctors.

VOL. XI. NO, 327.

4th. The Powers of the New Court as a Court of Probate.

1st, AS TO THE ADMINISTRATION OF ASSETS.

By the 38th and 39th sections (coupled with the new administration bonds) a creditor or legatee may institute a suit in this Court, in which he may compel an accouut,

may question every item,-may have questions of law arising on them decided,and obtain a decree, not merely for payment of the particular claim, but for general distribution of the effects, to such person or persons as the Court shall dircct. These clauses give to this Court powers, unknown to any former Ecclesiastical Court.

The Ecclesiastical Commissioners report that " these (Ecclesiastical) Courts are not at liberty to dispose of any question connected with a trust, or any legacy or annuity charged upon land, nor have adequate authority to marshal assets." And they elsewhere observe, that" practically speaking, save in a few instances, the actual exercise of the Ecclesiastical jurisdiction is confined to the exhibition of an inventory and account."

The same Commissioners add, that it appears to them, "this branch of the jurisdiction, at present almost useless, for the reasons stated, might be remodelled and amplified, so as to be of considerable advantage to the public.

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The bill in question is founded on this Report. It is to remodel and amplify the powers of the Court, so that its jurisdiction may no longer be useless, which, according to the Commissioners, it had become, because of the inability to dispose of questions connected with a trust, or where a legacy 2 G

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