office hour amounted to nothing. The case cited was not applicable. The motion was refused with costs. In re Cooper, L. Č. Mar. 21.

1831.

ROLLS COURT.

SETTLEMENT BY INFANTS.

The facts of this case have been given in former numbers (ante, p. 285. 303.), but the Master of the Rolls having been requested to reconsider his judgment, he this day further adverted to his reasons for his former decision, to which he adhered. The question, he said, was, whether the chattel interest of a female infant, limited to her separate use, could be bound by a settlement made on her marriage; and he had decided that it could not, for the following reasons:-In the case of personal property belonging to a female, the husband would upon marriage acquire an absolute interest in it; a settlement might therefore be made of it, extricating the absolute interest, and it would be considered only as the settlement of the husband and not of the female infant. With respect to the real estate of a female infant, no settlement could be made of it to bind her, because the husband did not acquire an absolute interest, but a qualified or partial interest in it during his life. With respect to a chattel interest settled on the female infant to her separate use, the husband could obtain no interest in it by marriage. It would be singular, therefore, if he could bind her by a settlement of it. The simple question was, in fact, whether she had power to make a settlement of it during her minority; for it would of course be different if she were of age. It appeared to him that the case of a chattel interest settled to the female infant's separate use was even stronger than that of real estate, for in it the husband did not obtain any interest whatever. It was true the Master had approved of the settlement, but he thought the Court had no power to confirm any such settlement. He had examined the books on the point, and could find no instance of the Court making a settlement of a chattel interest of this nature, and he considered that it came under the same principle which was applicable to real estate.-Simpson v. Jones, M. R. Mar. 22. 1831.

COURT OF KING'S BENCH.
SETTLEMENT BY RENTING A TENEMENT.

A man who had a settlement in one parish, removed to another, and rented a tenement at ten pounds a-year. He was unable to pay the whole of this rent, and applied to the overseers of his former parish for assistance out of the poor rates, to enable him to pay it. They advanced him five pounds for that particular purpose, and not as assistance generally. The sessions held this a fraud to enable the pauper to gain a settlement in the second parish, and made an order accordingly.

The Court confirmed the order of sessions. Rex v. Inh. of - -H. T. 1831. K. B.

COPYHOLD.-SEIZURE QUOUSQUE.

Ejectment to remove a tenant from lands

347

In an appeal against a parochial rate imposed on the Blackwater Navigation Company, the question was, whether under the terms of the 33 Geo. 3., by which the company was established, the lands occupied by the company were to be rated according to their actual value in their hands, including tolls, &c., or only according to the value of the adjoining lands. The sessions rated the lands on the former principle, and made the rate between 100l. and 200/. subject to opinion of the Court, whether the latter principle ought not to be adopted;-if so, the rate should be 35l.

The Court decided that the latter principle was the proper one, and remitted the case to the sessions, with an order to reduce the rate to 351.

MANDAMUS. PAWNBROKERS.

Adolphus obtained a rule to show cause why a mandamus should not issue to Mr. Roe, a magistrate at Marlborough-street, commanding him to hear an information preferred by Byers the common informer, against Filmer, a pawnbroker, in South Audley-street.

The magis

Andrews Serjt. showed cause. trate had partly heard the information. A witness of the name of Rawlins, stated that he had pawned a piece of linen at the pawnbroker's shop, and that no questions were asked as to his place of residence. By the act of parliament* the pawnbroker was bound to ask the question, and not having done so, the informer contended that he was liable in the penalty. But Rawlins stated, that he had pawned the article not in his own name, but in the name of Robinson; and then, the magistrate understanding that this was the only witness, said that he would not convict the pawnbroker on the testimony of one who had acted in this fraudulent and tricking manner by giving a false name. The magistrate was therefore justified in refusing to proceed with the hearing, particularly as the witness was a man, whose only means of gaining a living was by giving evidence for common informers. Richards, on the same side, observed, that the

39 & 40 Geo. 3. c. 99. § 6.

act of parliament forbad the pawner to give a false name, and, if he did, directed the pawnbroker to hand him over" into the custody of a constable, or other peace-officer.”

Lord Tenterden Ċ. J. Then the pawnbroker ought to have asked him where he resided, that he might be able to deliver him over to a constable, in case he gave a false name. It was proper that the information should be heard, and the mandamus must go. Rule absolute. Exparte Byers, H. T. 1831. K. B.

ARCHDEACONRY OF ROCHESTER.

Lord Tenterden C J. delivered the judgment of the Court. This was a case for the opinion of the Court on three questions; first, whether the prebendary in question was duly annexed to the archdeaconry; secondly, whether the archdeacon was by his office or person capable of holding a prebendary; and, thirdly, whether the defendant was duly instituted and inducted into the prebend. It was admitted, that in case the Court should be of opinion with the plaintiff, on the first two points, judgment should be entered for the plaintiff; if not, that it should be entered for the defendant. The first question was, whether, in the time of Car. 1., the crown had the power to alienate the prebendary? and the Court was of opinion, that at that time the crown had the power, unless there were special circumstances to the contrary, which here did not exist. The next question was, whether the crown had the power to annex the prebendary to the archdeaconry? and the court was of opinion that it had. The Pope had the power before the time of Henry VIII., and afterwards that power was in the crown. Then came the question, whether the archdeaconry was competent to receive the prebendary? At first, a prebendary could only be holden by a corporation solc, but afterwards they had been granted to corporations aggregate, provided they were of a spiritual character; and the Court was of opinion, that it was competent to hold the prebendary; and, when once annexed to the archdeaconry, it could not be severed. But it had been said, that the plaintiff had not been duly instituted and inducted. If, however, the prebendary was annexed, institution into the archdeaconry gave the right to the prebendary. Postea to the plaintiff. King v. Day, H.T. 1831. K. B.

COPYRIGHT-ENGRAVING.

Gurney obtained a rule to show cause why the general verdict for the plaintiff in this case should not be set aside, as against the assignees of Heath, and why the verdict, as against Heath, should not be entered on the first count only.

Trover brought by Mr. Murray, the bookseller of Albemarle Street, to recover the value of one hundred prints taken by Mr. Heath the engraver, from plates engraved by him for the plaintiff for the illustrations of an edition of Lord Byron's Don Juan. Heath had become bankrupt, and the prints came into the hands of his assignees, who put them into the hands of

$10.

Mr. Southgate the auctioneer, and they were advertised for sale in his printed catalogue. The plaintiff brought his action, and the defence was, that the engraver was entitled by custom to take some prints from the plates which he him.self engraved. Various witnesses were called who proved that it was the custom for the engravers to take some prints from the plates which they engraved for others; some said ten, some twelve, and some twenty; but there was no precise number fixed. Under these circumstances, Lord Tenterden C. J., who tried the case, was of opinion, that the engraver had no right to take prints without the consent of the owner of the plate, and the jury found generally for the plaintiff against all the defendants. Gurney obtained a rule, calling on the plaintiff to show cause why the general verdict for the plaintiff should not be set aside, as against the assignees of Heath, and why the verdict as against Heath should not be entered on the first count only. The eighth count in the declaration was founded on the statute of the 17 Gec. 3., which gave the proprietor of the plates a special action on the case against those who pirated his plates or prints, for damages with double costs; and the object of the rule in regard to Heath was, to relieve him from the payment of double costs; and as to the assignees, it was contended that they were not liable to the plaintiff in trover, as the prints, whether lawfully taken or not, were not the property of the plaintiff, who could only recover damages from

Heath.

Sir James Scarlett, Campbell, and Hill, showed cause, and contended that the present case came under the provisions of the 17 Geo. 5. c. 57. By the true construction of the words of that statute, it applied both to the pirating of the plates, by engraving new ones from the original plates, or from the prints struck from the original plates, and also to the unlawful taking of prints from plates lawfully engraven, which was the case in question. The statutes of the 8 Geo. 2. c. 15., and 7 Geo. 3. c. 38., relative to the same subject, were penal, and applied to the pirating the engravings or plates, but the 17 Geo. 5. was a remedial statute, and ought to be construed so as to advance the remedy; and if so, then the unlawful taking of prints from plates law fully engraven must be considered as coming under the provisions of that act. This practice of taking prints from the plates without the consent of the proprietors, and publishing them, extremely injurious to the proprietors; for it or selling them, or exposing them to sale, was diminished the value of their property in the market; more particularly, as the impressions so taken were the first and best impressions, and it was the object of the act to protect proprietors from the consequences of the practice. Then, as to the assignees, they knew perfectly well how these prints had been obtained, and yet they published and exposed them to sale; and thus they made then selves liable under the act, whether any of the prints were sold or not.

Lord Tenterden Č. J., said, if the act of the 17 Geo. 3. c. 57. bad stood alone, he admitted that there would have been strong grounds for contending that this case came under the pro

visions of that statute. But looking at the 8 Geo. 2. c. 13., and the 7 Geo. 3. c. 38. in pari materia, with the present, he was satisfied that the remedy was confined to the pirating of the original plates, and selling prints taken from plates so pirated from the originals. The words of the statute of the 8 Geo. 2. c. 13. were, "that every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own works and inventions shall cause to be designed and engraved, etched or worked in mezzotinto or chiaro oscuro, any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, which shall be truly engraved with the name of the proprietor on each plate, and printed in every such print or prints, and that if any printseller or other person whatsoever within the time limited by this act, shall engrave, etch, or work as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched, or copied and sold, without the consent of the proprietor or proprietors thereof, such persons shall forfeit the plates and prints to the proprietors, and be subject to a penalty of five shillings for every print so engraved, copied, or sold or exposed for sale. The act of the 7 Geo. 3 merely extended the provisions of the former to different descriptions of prints. Then came the act of the 17 Geo. 3. c. 57., and by that statute it was enacted that " if any engraver, etcher or printseller, or other person, shall engrave, etch, or work, or cause or procure to be engraved, etched, or worked in mezzotinto or chiaro oscuro, or otherwise, or in any other manner copy, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause or procure to be printed or reprinted or imported for sale, or shall publish, sell, or otherwise dispose of, or cause or procure to be published, &c. any copy or copies of any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever which hath or have been or shall be engraved, etched, drawn, or designed in any part of Great Britain, without the express consent of the proprietor or proprietors thereof in writing, then every such proprietor shall or may, in a special action on the case, recover damages and may have double costs." Now, looking at the whole of these acts together, he was of opinion that the act of the 17 Geo. 3. applied only in cases which came under the two previous acts, and that its object was to give the proprietors of engraved plates an additional remedy against those who pirated them, by this special action on the case with double costs. In the present instance the prints were taken from plates engraved for the plaintiff himself, and therefore there was no unlawful engraving nor pirating of plates without the owner's consent, and that being the case, the statute did not apply. The taking of prints in that way, and publishing or selling, was no doubt very injurious to the proprietors, since the impressions so taken were the best, and must diminish the value of the owner's property, and it was a fraud at comnion law, and no act was

349

As to the

wanted to repress the practice. assignees, they were no parties to the taking these impressions from the plate, and trover could not be maintained against them, unless the property in the prints had been in the plaintiff. Here the only remedy he had was to recover damages against Heath.

Littledale J. said the statute appeared to apply only to impressions taken from pirated plates, which these were not. If it were otherwise, printsellers, who purchased prints for sale, could not carry on their trade with safety.

Taunton J. and Patteson J. were of the same opinion.

Rule absolute for setting aside the verdict as to the assignees, and for entering it against Heath on the first count only. Murray v. Heath and others, H. T. 1831. K. B.

-

MANDAMUS.-INSPECTION OF CORPORATION

BOOKS.

A rule nisi had been obtained why a mandamus should not issue directed to the Master and Wardens of the Merchant Taylors' Company of London, commanding them to allow the applicants for the rule, as liverymen of the company, to inspect all books and papers, records and muniments, of the corporation.

After cause had been shown,

Lord Tenterden said, that ever since he had a seat in the court, he had always understood that his jurisdiction was limited by the practice; and he had always been anxious not to assume a power for which he had not precedent or authority. It was for that reason, that when he found that an application had been made on speculative grounds for a rule for a mandamus to inspect all books, papers, records and muniments, of a corporation, he had enquired whether there. was any instance where such an application had been successful, in order that he might be assured as to the extent of his power. His impression had always beer, that a mandamus could not be granted, except for some specific object and purpose. Some cases had been cited, but it had been admitted that there was no authority precisely in point, or which went to the full length. of the present case. Observations, it was said, had also been made on general words imputed to the judges in these cases; but such obervations must always be understood with reference. to the subject matter under consideration at the time. The first was the case in Strange; and there the Court was reported to have said, that a mandamus might be granted to an individual to inspect the books of a company as to a parti cular matter which concerned himself; but it was confined to that particular matter, which in that instance was the admissions of members; and, in reality, there was a dispute on the point, and a proceeding depending. The rule then was, to limit the exercise of the power, to cases where there was a particular specific object in view; such as, for instance, where a proceeding was depending respecting a particular office; but it was always limited to a particular subject. In the case of the King v. Tower,*

4 M. & S. 162. Rex v. Lucas, 10 East, 235.

there was no proceeding depending in a court of justice, but there was a dispute between the lord of a manor and his tenant on a specific subject, viz., the right to the underwood. There, a mandamus was granted to inspect the roll, not generally, but in as far as the tenant's right to the underwood was concerned. There were cases in which copyholders had been held entitled to an inspection of the rolls, where no suit was depending that was in question relating to customs, and the line of descent; and mandamuses had been granted for inspection of the rolls so far as the applicants were concerned: But no case or authority had gone further. Applications for general inspection on speculative grounds had always been refused, and there was no instance in which the court had interposed by mandamus in such a case as this, where the application was generally to inspect all books and papers. But it was said, that the Master and Wardens held considerable funds as trustees for the corporation. Be it so: but this was not the court to compel a trustee to account to his cestui que trust. It was said that improper and exorbitant fees were charged on the admissions of liverymen. If so, an application might be made for admission on the payment of reasonable fees, and if that application should be rejected, then a case of particular grievance would arise, on which there might be an application for a mandamus. He did not say what would be done upon it, but at least a ground would be laid for a rule to show cause, and the mandamus might issue, unless good cause was shown to the contrary. Then it had been said, that the liverymen took an oath to observe the rules and ordinances of the corporation, and that in order to be able to obey them, it was necessary that they should see them. But there, again, if a person found himself particularly aggrieved, he might apply for a mandamus, and it might be granted, unless good cause was shown to the contrary. No ground had been laid for a mandamus to allow a member to inspect generally all the books and papers of a corporation. It had never been the practice to listen to such applications; and if a contrary practice was to prevail, it would be attended with great and unnecessary inconvenience and expense to the parties. He was, therefore, of opinion that the rule should be dis charged. Rule discharged. Exparte Norman, Franks, and others. H.T. 1831. K. B.

PREROGATIVE COUrt.

ADMINISTRATION.

Sir J. Nichol took occasion to make some observations upon the practice of granting administrations in cominon form, and upon the regulations which had been made by this court for preventing fraud in such cases. He observed, that it had been a matter of complaint by the Bank, the South Sea House, and other public bodies, as well as by individuals, that so far from any impediments being offered to the grant of such administrations too great facilities were afforded; and in another place, where witnesses had been examined on oath, one of them a professional person of experience had stated, that if any difficulties arose in the granting of admini

strations in common form, it was from the facility with which they were obtained, which afforded opportunity for fraud. The witness recommended more caution; the administration should not be granted upon mere allegation; that some proof should be required of the death of the party, a certificate of burial, and proof that the applicant was next of kin. Considering, however, that there was not one case of frand out of perhaps five thousand, it was not expedient to subject parties to such inconvenience; yet the court was always ready to adopt any course, which, at the same time that it did not produce too great inconvenience, might add to the security of the probate. He should direct, that in future the date of the party's death should be inserted in the margin, and on the back of the probate or administration; and he impressed upon the registrars, the clerk of seats, and practitioners, the duty of exercising vigilance where applications of this nature were made. Cases had recently arisen, which had more particularly called for these remarks. An application had been made on behalf of William Darling, representing himself as one of the children of Elizabeth Darling, widow, who died at Bankshead in Durham, in March, 1819, intestate. The property was sworn to be between 450l. and 600l. This seemed to be the sort of case in which some explanation should be given why administration had been so long delayed, and the registrar had accordingly very properly called for it. There was no reason to doubt that this was a fair case; yet when it was pretty well known that letters were circulated all over the kingdom in consequence of the publication of the unclaimed dividends, this might have been a case of a different description. When the solicitor (a respectable house) was applied to, however, he had sent a letter to the proctor, which if he had been acquainted with the rules of practice in this court, and the reasons for them, he would not have sent, but would have been the first to approve of the regulations. The letter stated that the client of the writer had been prejudiced by the unwarrantable delay (though the application had been made the same day) in this court; that the writer could not take upon himself to assign motives for the delay, or to examine his client upon the subject; that the statute of administrations required the Ecclesiastical Court to grant administration without such enquiry; that his client had come up three hundred miles for the purpose of obtaining this administration, and the writer required that application should be made to this court, and if it refused an administration he (the writer) declared he should apply to the Court of King's Bench for a mandamus. Now he (Sir J. Nicholl) should not shrink from doing what he conceived to be his duty by the threat of a mandamus; and he was convinced, that the Court of King's Bench would not only refuse a mandamus, but highly approve of the course which this court had taken to prevent improper grants of administration. The reason now assigned for the delay was, that the deceased had no property but a reversion of a sum in the funds, and that the party in possession of that sum had but just died. This reason was satis

factory; but as the person who alleged it was not known some enquiry must be made to authenticate it.

In the goods of Elizabeth Darling, deceased.

ESSEX SPRING ASSIZES.

ATTORNEY.- CLIENT'S PRIVILEGED
COMMUNICATION.

In an action of ejectment, the attorney for the plaintiff being called by the plaintiff, was on cross examination asked by

Platt, whether a certain deed of conveyance belonging to the lessor of the plaintiff was in his possession?

The witness refused to answer the question, on the ground that he was not obliged to state any thing affecting his client, which he knew merely from his client.

Platt submitted, that the witness must answer the question, as this case was different from one in which an attorney was called upon to state some fact, which he had learned from his client by means of a confidential communication with him, or to produce the title deeds of his client. It was merely enquired here, whether a certain deed of the client was in possession of the attorney.

Dowling, for the plaintiff, contended that the witness was not bound to answer the question. The answer in the negative or the affirmative might be exceedingly important to the lessor of the plaintiff. This might be a mere fishing question, to learn with certainty whether a particular deed was or was not in the possession of the witness, in order to carry on further proceedings at law or in equity. The capability which the witness might possess of answering the question, was derived from his connection with his client, and therefore must be viewed as privileged.

Garrow B. thought that the question came within the rule as to privileged communications between attorney and client, and therefore, if the witness declined answering, he could not say that he was obliged so to do. Doe d. Cook v. Barrett.

EJECTMENT.

In an action of ejectment where a verdict had been given for the plaintiff,

Dowling applied to Garrow B., who tried the cause, for his certificate under the 11 Geo. 4. and 1 Wil. 4. c. 70. § 38., to enable the plaintiff to obtain a writ of possession immediately. The words of the statute are," when a verdict shall be given for the plaintiff, or the plaintiff shall be nonsuited for want of the defendant's appearance to confess lease, entry, or ouster, it shall be lawful for the Judge, before whom the cause shall be tried, to certify his opinion on the back of the record, that a writ of possession may be issued forthwith."

Platt told the court that he should move in the next term for a new trial, on the ground of certain evidence having been admitted, which was not receivable in point of law.

Garrow B. said, that under these circumstances he should refuse to certify.-Doe d. Cook v. Barrett.

MINOR CORRESPONDENCE.

TERMS AND RETURNS OF WRITS.

851

One of your correspondents, signing himself "T.," in a letter inserted in your journal on the 5th of February, remarks (and as I think very correctly), that the note in p. 172., on "Terms and Returns of Writs," is in error in stating that the prolongation of Easter term, in the event of Easter falling during the term, is repealed. And you, Mr. Editor, subjoin a note to "T.'s" letter, stating, that " as the days beginning on Good Friday and ending with Easter Tuesday, are to be deemed part of the term. 1 W. 4. c.3. §3.; and as term is limited to a certain number of days, it must surely follow that the contingent prolongation is at an end."

Now, I should be glad to know where you find that the term is limited to a certain number, of days. Surely, in neither of the acts 1 W. 4. c. 70. § 5.

While on the subject of these acts, let me ask your correspondents what, under the new acts, is to be done when (as must frequently occur), any one of the terms shall commence on a Sunday? Their ending on a Sunday is provided against by § 3. of 1 W. 4. c. 3.

ANSWERS TO QUERIES.

S. W.

1st. A. can prove upon the bond under the commission against C., as a voluntary bend given for no valuable consideration (as this may be considered) may be proved, so that payment of it be postponed till all the other debts are satisfied, and then it may be paid out of the surplus. See Eden's Bankrupt Law, 121.; and Gardner's assignees v. Skinner, 2 Sch. & Lef. 228. The reason why payment is postponed is, there being the want of a valuable consideration.

2d. It has been decided, that an infant who is a partner in trade, and holds himself out to the world as an adult, and sui juris, is liable to the bankrupt laws. 16 Ves. 265.

3d. I should think B. cannot compel A. to pay off the mortgage before he has given six months' notice, and which must expire at the end of the twelve months. T.E.

In answer to the second query in Number XXI. p. 355., I beg to refer to Exparte Sydebotham, 1 Atkins, 146., where it was held, that an infant could not be made a bankrupt; but it would seem, that if an infant has traded for some considerable time, and held himself forth as an adult, a commission of bankrupt against him would be sustainable. See Exparte Watson, 16 Ves. 265. A. F. C.

QUERY.

Under the 9th section of 7 & 8 Geo. 4. cap. 71. is an attorney exempt from the whole act; that is to say, can he hold to bail for 10. and upwards, as he could under the 12 Geo. 1. cap. 29.