Practice in the County Courts.-Law Appointments.—Superior Courts: Rolls. 213 house of correction; and this would give the judge a discretion to commit fraudulent debtors to the house of correction, and unfortunate ones to the common gaol for debtors, and not for felons. I read a late case, where a surgeon was summoned, but was unable to attend, as he was engaged in a midwifery case. His wife, however, attended for him, and promised to pay half the debt of 61. in two or three weeks, but the judge ordered him to be committed to prison for nonattendance. "If all, or even the principal part of these The act certainly says, common gaol or measures shall be adopted, well supported by the profession, and followed out with vigour, tempered at the same time with the discretion which the subject so obviously requires,-the committee entertain a confident hope, that the day is not far distant when many of the hindrances to the attainment of justice shall be removed, when the tone of public feeling towards the profession will be changed, and the character and station of the solicitor placed upon that honourable eminence to which not only is he justly entitled, but which the public interests require that he should occupy. A gentleman of any profession-in the law, "The committee subjoined a list of the com-physic, or divinity, may be summoned on a mittee of management," and of the present sup- judgment debt, which being unable to payporters of the association, many of whom are probably because he cannot collect the debts also members of "The Incorporated Law Society;" and every member of the profession is earnestly requested to state his views on the subject, and to signify whether he is willing to join the association.' This address, we understand, increased the number of members in town and country to little short of one thousand. due to himself in sufficient time,-instance a surgeon whose bills are usually payable at Christmas, or a solicitor, when causes are ended; and yet, without any charge or pretence of fraud, they may be committed to the "House of Correction," to the ruin of their position, and a degradation that might drive them mad! Can such a state of the law have been contemplated by the humanity of the Lord ChanPRACTICE IN THE COUNTY COURTS cellor, who is known to advocate a total abolition of imprisonment for debt? HARDSHIP OF IMPRISONMENT. To the Editor of the Legal Observer. SIR,-The article in your number for Dec. 11, on the subject of the punishment inflicted by the new law upon a debtor who may be unfortunate rather than fraudulent is very just as a condemnation of those who would advocate a more severe Law of Debtor and Creditor. I cannot help remarking, however, that the present law (as put in force by some of the judges of the County Courts) is even more severe than the observation of the writer of that article would seem to be aware of, for some of the judges commit to the "House of Correction," thus degrading a poor debtor to the very level of a felon! See the List, 34 L. O. p. 42. CIVIS. JURISDICTION AS TO JUDGMENT DEBTS. Can an action be commenced by plaint_under the 58th (or other section) of the New County Courts Act, on a judgment obtained in the Exchequer, or other superior court, where the debt and costs recovered on such judgment do not exceed 201.? See Com. Digest, title Prohibitions (A). T. W. [See the report of the case, p. 219, post.] LAW APPOINTMENT. THE Right Honourable the Speaker has appointed Thomas Erskine May, Esq., Barristerat-Law, to be Taxing Master of Costs on Private bills in the House of Cominons. 214 Superior Courts: Vice-Chancellor.-V. C. Knight Bruce.—Queen's Bench. F. Bayley, for the plaintiff, did not object to The Vice-Chancellor said that he could not The court will not make a four day order court his purchase money, without prejudice against him in the first instance. to any question as to the title to the purchased In this case Mr. Erskine moved for a four premises, and that he might be let into pos day order against George Wyatt, a defendant session. in the cause, to compel him to execute a lease which had been settled by the Master, and the order being made as asked, but which, as was alleged, the defendant had on make the order as to the possession; with regard several occasions been applied to to execute, to the payment without prejudice to any question but without effect. Lord Langdale said, that there must be the as to the title, he was now informed that the same process to compel a defendant to the rule was not inflexible that the purchaser could not pay his money without accepting the title, cause to execute a lease as to compel its execubut that the money might under special cirtion by any other person. He would make an order that the defendant do execute the lease, in this case the order was applied for to stop cumstances be paid in without prejudice. As but the subsequent process must be in the cominterest, he would make it. mon form. Where an appeal from a decision of the Master on exception for impertinence in an answer was pending: Held, that in such a case a special application ought to be made to the court for liberty to amend, without prejudice to the appeal, and not a simple application to amend before the Master. THIS was a motion in behalf of the plaintiff that he might be at liberty to amend his bill, by adding parties, and inserting statements therein that such parties were proper parties, praying no further answer to the amendment -but that such amendment might be made without prejudice to certain exceptions for impertinence which had been taken by plaintiff to the answer of one of the defendants, and which exceptions were then on appeal to the Lord Chancellor. Mr. Stuart appeared on the motion. Mr. J. Parker, contrà, contended that the plaintiff was applying for a special order to the court, when in fact it ought to have been an order of course before the Master, Woodroffe v. Daniel, 9 Sim. 410. The motion was nothing but one to amend simpliciter; it was quite impossible that amending the bill could prejudice an appeal pending for impertinence; at all events the order should be made without costs. The Vice-Chancellor made the order, but without costs, saying he thought the plaintiff was right in making his application to the Sibbering v. Earl Balcarras. Dec. 1. PLEADING.-DESCRIPTION OF PLAINTIFF.- J. V. Price moved that the plaintiff should give security for costs in consequence of the insufficient. The description was as follows: description of the plaintiff's residence being "Late of Blackrod, in the county of Lancaster, but now working on the line of railway between Sheffield and Manchester, labourer." Hargrave, on behalf of the plaintiff, contended that the description was sufficient, but The Vice-Chancellor considered otherwise, and said that the plaintiff must give security for costs, unless he thought proper to amend, paying the costs of this application. A person charged as a lunatic made (with the In such a case it is a proper question to be left THIS was a proceeding by interpleader. The plaintiff had brought an action against the trustees under an agreement made between herself and her daughters, the present defendants, to recover from those trustees possession of the deeds relating to her property, which deeds had in virtue of the agreement been delivered up to the trustees. The trustees disclaimed all interest, and the daughters were made the defendants in an issue directed to try whether Superior Courts: Queen's Bench. the plaintiff had of her own free will made the agreement in question. The cause was tried before Mr. Justice Erle, when a verdict was found for the plaintiff. A rule had since been obtained to set aside this verdict. The court took time to consider the judgment. The facts of the case and the questions raised on argument are sufficiently stated inthe judgment. 215 competent person to retain possession of the deeds, and ought not to be deprived of them. If, being competent, she was induced by the fear of confinement to execute these deeds, then her signature to them was obtained by a direct interference with her personal freedom, and how can we say that it was not obtained by duress? That her counsel thought this the Lord Denman, after the court had taken best arrangement for her interest, is a matter time to consider, delivered judgment in the which we need not question; but they are not case. The question in this case arose upon entrusted, by the mere fact of being her counsel, the trial of an issue directed under the Inter- with any power over her person and property. pleader Act, to determine whether the plaintiff, Their rights are derived from her alone, and so notwithstanding an arrangement made by her, long as she is perfectly at liberty she may authowas entitled to the possession of certain deeds rize them to act for her; but as she was at settling and disposing of her property. We that time, by the hypothesis of the commission, are clearly of opinion, that her title to the pro- incompetent to act for herself and incompetent perty was not open to inquiry at the trial, in to make any contract, she was incompetent to dependently of the effect of that arrangement, authorize them to give their sanction to any which was the subject of the issue in question. contract for her. There was an objection to His Lordship stated the nature of the arrange- the mode in which the learned judge left the ment to be a disposition of the plaintiff's pro- case to the jury. He said the question was, perty, to take place after her death, in favour whether the plaintiff had made the arrangement of her daughters, the defendants, by whom a of her own free will, and told the jurors that if commission of lunacy had been issued against she had made it under a recollection of her past her, under which commission she was taken confinement, and under a fear that that conbefore a commissioner of lunacy, and a formal finement would be renewed, then she could not inquiry into her sanity was instituted. The be said to have made it of her own free will, and proceedings on that inquiry were terminated it could not be sustained. We think that the by this arrangement. On the trial of the issue case was properly left to the jury, whose verit was argued for the plaintiff, that she could diet we see no reason to disturb. Though the not be bound by this arrangement, as it was peculiar facts of this case are not the same as made whilst she was under duress, that she the facts in some of the cases referred to in the had been confined in an asylum, that her arguments, we think that our judgment may health had been affected by such confinement, properly be considered as in support of them, and that she acceded to the arrangement only and not at variance from them. Some amithrough fear of the confinement being renewed; cable arrangement may yet be made favourable for though she was permitted to go at large to the interests of all the parties concerned. during the inquiry before the commissioner, In the meantime the rule for setting aside the the result of that inquiry, if it terminated un- verdict for the plaintiff must be discharged. favourably for her, would be to place her again under restraint. For the defendants, it was contended, that whatever had been done was done under a legal process, was lawful and was in good faith, and that though there had been a previous confinement, it was at an end at the moment when the arrangement was made; that her interests had been properly consulted, and that it was a rule of courts of justice to sustain arrangements made in them, upon the advice and sanction of counsel. There is no doubt that great weight is due to these considerations, An award having been made unfavourable and they would perhaps be decisive in cases to the defendant, a motion was afterwards where both parties were free and competent made to set aside the award, which was dispersons. But when one of the parties is ex- charged with costs. These costs having been pressly declared by the others to be lunatic, ascertained, and the Master's allocatur made, and is therefore threatened with personal re- in February, 1845, a rule of court was made straint, it cannot be said that they meet upon for the payment of them, which not being equal terms. The object of a commission of obeyed, a ca. sa. issued on the 17th Novemlunacy is to declare the person who is the sub-ber, 1846, and the defendant was arrested on ject of it incompetent to do any legal act, to the 26th. At the same time there were other take from such a person all his power and to detainers lodged against him. In July last transfer it to another. How then can such a the defendant became insolvent, and an order person be treated as fit to negotiate an agree- was made vesting his property in the plaintiff. ment. The defendants can hardly maintain In August a summons was taken out before the plaintiff's competency in the face of their Mr. Baron Platt calling upon the plaintiff to own proceedings; but if she was a competent show cause why the writ of ca. sa. should not person to make the arrangement, she is also a be set aside for irregularity, and the defendant ་ Spooner v. Payne. Michaelmas Term, 1847. VICT. c. 110.-EXECUTION. A rule of court under 1 & 2 Vict. c. 110 for the payment of costs may be enforced on a writ of ca. sa., after the expiration of a year and a day from the time such rule was made without a writ of sci. fa., or special leave of the court being first obtained. 216 Superior Courts: Queen's Bench. - Queen's Bench Practice Court. discharged out of custody, which summons the judgment of the court. This was an apwas discharged. A similar application having been made to this court, plication to set aside a writ of execution and to discharge the defendant out of custody, on the ground that a writ of ca. sa. issued on a rule of court under the 1 & 2 Vict. c. 110, made more than a year before, without a sci. fa. or special leave of the court first granted. But we are of opinion that no sci. fa. or special leave of the court was necessary by that Act, or upon any legal principle; and upon inquiry we find that according to the practice which prevails these proceedings are regular, and on that ground, therefore, this rule will be discharged. Rule discharged. Mr. Whitehurst and Mr. Miller showed cause. The alleged ground of irregularity is that the order for the payment of the costs of the motion to set aside the award having been made more than a year and a day previous to the arrest of the defendant, that there must be a writ of sci. fa. before the writ of ca. sa. can issue. The statute 1 & 2 Vict. c. 110, by section 18, enacts that rules of common law and orders of the Lord Chancellor, &c., whereby any sum of money or any costs, charges, &c., shall be payable, shall be deemed judgment creditors; and all remedies hereby given to judgment creditors, are extended to persons to whom money is due under such orders or rules. Section 19 still keeps up the distinction between rules and judgments. These rules and Reg. on the prosecution of Rogerson v. Grimshaw. orders are only to have the effect of judgments Queen's Bench Practice Court. Nov. 18 & 22, 1847. FICER. COSTS OF A RELATOR UNDER 9 A coroner of a borough appointed under the for the purpose of enforcing them. A sci. fa. CORONER OF A BOROUGH CORPORATE OFis only necessary in matters of record enrolled, (2 Inst. 470,) and in practice these rules never are enrolled. Before the statute of Victoria passed the only mode of enforcing a rule of court was by attachment, which did not give possession of the goods of the party, and the late statute was intended to remedy that defect. Attachment might have issued at any time by leave of the court. In Farmer v. Mottram, Tindal, C. J., said, a rule of court under the 1 & 2 Vict. c. 110, s. 18, is not a judgment for all purposes, but merely gives those in whose favour it is made a better remedy than they had before. He also contended, that this being only an irregularity, that the application was made too late. Blanchenay v. Burton. In this case an information in the nature of a quo warranto had issued against the defend. ant, commanding him to show by what authority he exercised the office of coroner for the borough of Wigan. The defendant pleaded Manning, Serjeant, contrà. The arrest of the several pleas, on one of which four issues were defendant under a writ of ca. sa. was not only raised by the relator, which went down to the irregular but void, by reason of no writ of assizes, and on a trial before Mr. Justice Cressci. fa. having been taken out. An order of well, at Lancaster, two of these issues were court is now assimilated to a judgment by the found for the defendant, and two for the rela 1 & 2 Vict. c. 110, and section 20 gives the tor, who subsequently entered up judgment court power to issue such writs as may be upon them for his costs under 9 Anne, c. 20, deemed necessary or expedient for giving effect s. 5. Earlier in the Term Cowling obtained a to the provisions of the Act. After the lapse rule nisi to set aside so much of the judgment of a year and a day from the time of making as awarded costs to the relator, on the ground the rule of court, it is necessary before execution issues that some means should be adopted to ascertain that the debt has not been satisfied. In the case of an attachment there was always an application made to the court stating that the debt had not been satisfied. For the purpose of showing that this was not a mere irregularity, he cited Reynolds v. Newton,c Martin, Q. C., and Pickering, now (18th Goodtitle v. Badtitle, Parsons v. Loyd. Nov. ) showed cause, and contended-first, that the office in question was an office within the meaning of the act 9 Anne, c. 20; and secondly, that even if the court should think that it was not, still, as it was a difficult question, the court would not dispose of it on motion, but would discharge the rule and leave the defendant to his writ of error. With regard to the office itself, before the Municipal Corporations' Act, (5 & 6 W. 4, c. 76,) the mayor of the borough exercised the office under the charter by virtue of his appointment as mayor, and therefore the Lord Denman, C. J. It seems very desirable that the actual course of practice in all the courts should be ascertained before we decide this case. We will, therefore, inquire into the matter before we decide. Cur. ad. oult. Lord Denman, C. J., afterwards delivered ⚫ Dowl, and Lownd. 781. 4 Q. B. R. 707. 9 Dowl, 1009. that the office of a coroner to a borough, appointed in pursuance of the provisions of the Municipal Corporations' Act, (5 & 6 W. 4, c. 76,) is not a corporate officer within the meaning of the 9 Anne, c. 20; and, therefore, that the relator was not entitled to enter up judgment for his costs under that statute. Superior Courts Queen's Bench Practice Court.-Common Pleas. office of coroner would clearly have been a corporate office at that time. The words of the 1st section of the 9 Anne, c. 20, are:"Whereas divers persons have of late intruded themselves into, and have taken upon themselves to exercise, the offices of mayors, bailiffs, portreves, and other offices, within cities, towns corporate, and places within that part of Great Britain called England and Wales." Now these words would clearly include the office of coroner, and the only question then is, whether the Municipal Corporations' Act, (5 & 6 W. 4, c. 76,) made any difference in this respect. Now the appointment of the coroner to all boroughs applying for a separate Quarter Sessions under that act, of which the borough of Wigan was one, is under the 62nd section of the act, which vests the appointment in the town council, and his expenses are paid out of the borough fund, and therefore is as much a corporate officer as the recorder, who it has been decided is a corporate officer. The only difference made by the Municipal Corporations' Act is, that the offices of mayor and coroner are now executed by two persons appointed by the council, instead of by one, as was formerly the case. Several cases were cited on the other side when this rule was moved :-R. v. Wallis, 5 Term Rep. 375; R. v. Hall, 1 B. & C. 237; and R. v. Williams, 1 Burr. 402. But, if these cases are examined, they will be found not to be analogous. Cowling, contrà, contended that the coroner was an officer of the Crown, and not a corporate officer, his duties being wholly unconnected with the corporation; he had to act as sheriff, to find treasure-trove, and return the number of his inquests to the Crown, and was in no way responsible to the corporation. Cur, ad. vult. Patteson, J. (Nov. 22.) I have looked at the acts of parliament and the cases bearing upon this subject, and whatever question there may have been formerly in respect to the coroner being a corporate officer, from the circumstance of the mayor holding that office under the charter, is not material; indeed the question then could not very well have arisen, as the two offices were united in the same person. The Municipal Corporations' Act, however, destroyed the character of the old office of coroners in those boroughs, for it provided that where there are Quarter Sessions established a coroner is to be appointed. It seems to me that the coroner, although appointed by the corporation, is in truth an officer of the Crown, and not a corporate officer; his duties have reference to the Crown, and not the corporation. Not being, therefore, in my judgment, a corporate officer, I think the relator is not entitled, under the statute of 9 Anne, c. 20, to his costs. The rule must therefore be made absolute. 217 OBJECTION, SUFFICIENT STATEMENT OF In a notice objecting to a party's right to be The Charles Sheldon being retained in the list of 66 "JOHN FLATCHER, "of 5, Sherborne St. "On the list of voters for the parish of Cheltenham." It was contended on behalf of the person objected to, that the notice of objection was defective in that it did not show in what town or parish Sherborne St. was situate, there being other parishes within the distance of seven miles containing streets, though it was not shown that there was any other Sherborne St. than that in the parish of Cheltenham. The borough of Cheltenham consists of the parish of Cheltenham only, and the names of the whole of the voters for the borough are comprehended in one list, viz., those entitled to vote in respect of property situate within the parish of Cheltenham. The name of John Flatcher, the objector, appeared in the list of voters, and his place of abode, and the local description of his qualification, were therein described, viz., " 5, Sherborne St." It was not suggested, that in fact there was any other place called Sherborne St. in the borough of Cheltenham, or that it was not perfectly well known, or that any practical inconvenience followed from the omission of the name of the town or parish. The revising barrister thought the notice of objection sufficient, and the person objected to, having failed to prove his right to have his name retained in the list of voters, 66 |