« EelmineJätka »
Review : Quain and Holroyd's New System of Common Law Procedure. plaintiff's attorney had no authority to disa | reviror, under section 129, against the husband charge a defendant from custody without re- and wife; but where the judgment is for the ceiving the amount for which execution issued, wife, it may be executed by the husband's unless he had the plaintiff's express authority authority in the wife's name, without any writ for so doing. In the case of a fi. fa. the at- of revivor or suggestion. This was substantorney in the action has authority to order the tially the old law, where the coverture might sheriff to withdraw from possession. (Levi v. have been, but was not, pleaded in abatement. Abbott, 4 Exch. 588.)"
(Walker v. Golling, 11 M. & W. 78.)
“From the enactment that the marriage of a By section 128 an execution may issue
ecution may issue woman defendant shall no longer cause the within six years from the judgment without action to abate, but it may notwithstanding be revival; and consequently the attorney's proceeded in to judgment, and that such judgretainer appears to continue for that period. ment may be executed against the wife alone,
The 130th section relates to proceedings or by suggestion or writ of rerivor against the upon an application to enter a suggestion husband and wife, it seems to follow that error for revival of judgment. On this it is re
in fact can no longer be brought by the husmarked that
band and wife in such a case, as was formerly
done where the wife was married at the time of “ Formerly the retainer of the attorney in action brought, but had neglected to plead her the action continued after judgment, so as to coverture in abatement. (2 Wms. Saund. warrant him in issuing execution within a year | 101 f.). and a day, or afterwards in continuation of a “One advantage of proceeding in the name foriner writ issued within that time. (Bevins of the wife alone, without joining the husband, v. Hulme, 15 M & W. 96.) Now it is appre- may be pointed out. If she die before trial, hended that the effect of section 128 is to pro- the action may be continued by or against her long the retainer for six years from the re- representatives under sections 137 and 138, covery of the judgment for the same pur- whereas if the proceedings are taken in the pose.'
joint names of husband and wife, and the
action is one to which she is necessarily a party, The marriage of a female plaintiff or de- it wou
or de it would abate by her death, except in actions fendant does not, according to the 141st within section 40, and in that case it could not section, abate the action or terminate the be continued by or against her representative, retainer of the attorney, unless by the ex- but a fresh action must be brought.” press countermand of the husband. The It is also a question under section 148 note on this enactment is as follows: whether in proceedings in error an attorney
“Under the law as it stood when the pre- can now be changed without the order of a sent Act came into operation, the coverture of Judge. a woman plaintiff might have been pleaded in abatement, whether she married before or after
"A writ of error was considered always as a action brought, and if she married after the new action, and might
the new action, and might be brought or prosedefendant had pleaded in bar, her coverture
cuted by a new attorney, without obtaining the might still be pleaded in abatement puis darrien
usual order to change the attorney (Batchelor continuance. The position of a woman de
v. Ellis, 7 T. R. 337), but though the proceedfendant was somewhat different; if she mar
ing to error is now to be a step in the cause, it ried before action and was sued as a feme sole
is apprehended that it is not intended that it she might plead her own coverture in abate- |
should be a step in every cause, but only in ment, but if she married after action brought,
those causes in which a writ of error might her coverture was then not pleadable in abate-1
"formerly have been issued. It is not clear ment, for permitting such a plea would be to
whether the word 'cause used in this section allow her to defeat the action by her own
includes criminal cases; but it will doubtless voluntary act—(King v. Jones, 2 Str. 811)
be deemed to extend to proceedings on mannor if taken on a ca. su.'in such a case would
damus, prohibition, or quo warranto. In secshe be discharged, though she had no sepa- |
lion 222 the expression civil causes' is used, rate property. (Beynon v. Jones, 15 M & W.
w from which it may be inferred that the word 566.)
| 'cause' was intended to include criminal as “Now, by the present section, the plea of) well as civil proceedings." coverture in abatement, either of the plaintiff's The note on the 203rd and two following or defendant's coverture, is abolished, and the sections, relating to the defendant's conresult is, that in all cases where a feme covert fession in an action of ejectment, to be at. is liable to an action, or a cause of action is vested in her, or, in other words, where her
tested by his attorney, is also worthy of ateoverture could formerly have been objected to tention. It is remarked malor taken advantage of only, by plea in abate-' “Under these sections the defendant in ment, she may now sue or be sued as a feme ejectment may confess the action as to the sole. It will be observed that where the judg- whole or part of the property claimed, by ment is against the wife, it may be executed merely giving a notice to the claimant to that against her alone, or by suggestion or writ of effect; the claimant will then be able to sign
Law of Attorneys- Re-admission after having been Struck of the Roll. ut judgment' on that confession. It is provided he was appointed a Master Extraordinary in that the notice shall be headed in the Court Chancery; that at the period named he was and cause, signed by the defendant, and at the office of his town agents, Messrs. Newhis signature attested by his attorney. Itton and Ensor, of Gray's Inn, with a person of is apprehended that such a notice is not the name of Bond, when he (Smith) observed a cognovit within 1 & 2 Vict. c. 110, and need that, as his business had so much increased, he not be subscribed with the formalities re- should like to be a Master Extraordinary in quired by that statute. (See Doe v. Howell, 12 Chancery, and a clerk was accordingly sent out Ad. & Ell. 696; Bray v. Manson, 8 M & W. to ascertain the expense, which was found to 668; Baker v. Flower, 8 M. & W.670.) The pre- amount to between sl. and 91.; that he paid sent section enacts merely that the notice shall that sum to a clerk, with instructions to his be attested by the defendant's attorney. The agents to procure his appointment, which it notice cannot be properly given until appear- was promised should be done in the course of ance has been entered by the defendant, which three or four days; that, being at the time a must now be entered by himself or his at- Commissioner in the Courts of Common Law, torney. Formerly if a cognovit were given to which he had been appointed by the mere before appearance, it was held it impliedly payment of the fees, he was always under the authorised the plaintiff to enter an appearance impression that his appointment of Master for the defendant. (Ricardson v. Daley, 4 M. Extraordinary in Chancery had been obtained & W. 384.) But as an appearance according in the same way: and that, although he could to the statute by the plaintiff for the defendant find no trace of the entry of the 81. 10s. in his is now abolished, the correct course will be for own books or in those of his agents, which he the defendant to appear either in person or by accounted for by not having at that time kept attorney before the notice to confess the action any regular account-book himself, and having is served.”
frequently paid sums of money to his agents
when in town, which were not entered in the LAW OF ATTORNEYS.
husiness account, he could swear that he paid the amount to a clerk, who died before the 1st
of last January. RE-ADMISSION AFTER HAVING BEEN
“The Lord Chancellor-What evidence is STRUCK OFF THE ROLL.
there that the person is dead, by saying that he The following report, relating to the case he died before a certain day? fore the Lord Chancellor of Mr. John Smith. l “Sir W. Wood continued - The next affiof Birmingham, is extracted from The Times
| davit was that of a person of the name of Sal
'mon, a general merchant at Birmingham, who of 13th November. This case has led to a stated, that about 11 years ago he heard Smith material alteration in the law and practice re- say that he had applied, when last in London, lating to the appointment of Masters Extraor. I to be appointed a Master Extraordinary, and dinary or Commissioners for taking affidavits |
that he afterwards acted as such, although a
a short time before he had refused to adminisin the Court of Chancery :
ter an oath on the ground that he was not a “Sir W. Wood (Mr. Tripp with him) ap- Master. Mr. Noble, a solicitor of 20 years' peared in support of a petition to have the standing at Henley-in Arden, deposed, that on name of Mr. Smith, late a solicitor at Bir- the 15th of April last he was with Smith and mingham, restored to the roll of solicitors. Jackson, who was then Smith's agent, but had On the 15th of April last, in consequence of since died, and heard a conversation between an affidavit, purporting to have been sworn them, in which Jackson said to Smith, “It's before Smith, as a Master Extraordinary in all right; I recollect your application ;' and Chancery at Folkestone, turning out to have Smith replied that he had paid the 81. 10s. to been in reality sworn in Boulogne, inquiry was his agents. Jackson then said to Smith that instituted by the Lord Chancellor, when it was he had better go to Birmingham and look discovered that Smith had never been ap- through his papers to see whether he had anypointed a Master Extraordinary at all. His thing relating to the matter. In consequence Lordship then directed Smith to account for of this, Smith started for Birmingham that his having executed that office without autho- very evening, and was not in Court on the rity, and on the following day, in consequence next day, when he was struck off the rolls, or of no satisfactory reason being given, he he would have asked for a postponement of the ordered him to be struck off the roll of solici-case. Counsel then urged that it could not tors. Since then a rule had been obtained in have been from any corrupt motive that Smith the Queen's Bench for Smith to show cause had acted as a Master Extraordinary, as it had why he should not also be removed from the not been il. profit to him, and then stated that list of attorneys, and that rule had been en-l a document had been signed by 31 solicitors larged until the present petition should have of Birmingham, including the mayor and been heard. In support of the present appli- clerk of the peace, to the effect that they becation, counsel now read several affidavits, that lieved Smith would not have acted as a Master of Mr. Smith being to the effect that he had Extraordinary unless he had been under the always acted under the impression that at the impression that he was one. In conclusion, it latter end of 1841, or the beginning of 1842, was urged that he had already suffered punish
Law of Attorneys.-New Order in Chancery. Notes of the Week
ment enough for the wrongful attestation of case, it could come to no other conclusion the affidavit, by having had his business, since than that Smith had knowingly usurped the April last, reduced from 2,0001. a year to office of Master Extraordinary, without any almost nothing, and having been six weeks im- authority even to excuse it. Although he (the prisoned through being unjustly sued on the Lord Chancellor) was unwilling to destroy all same account.
the future prospects of Mr. Smith, he should “The Lord Chancellor, after having gone mark his sense of the offence by ordering him through the facts of the case, said that the as- to repay all the expense incurred by his having sumption of the office of Master Extraordinary improperly exercised the office, and, upon that in Chancery was a very grave offence, as con- being done, he might at the expiration of six ferring considerable importance where it was months from the present day, be restored to not due, and leading the public to suppose that the Roll of Solicitors.” the person holding the sign manual of the Crown had reposed great confidence in that person. NEW ORDER IN CHANCERY. In consequence of the present case, he had taken some trouble to ascertain the state of the
DEPOSITS ON APPEALS. roll of Masters Extraordinary, and found that
10th December, 1852. it consisted of 4,430 names. He had caused circulars to be sent to each of these persons
In the matter of the Suitors of the High Court
of Chancery. with a view of finding out who were acting, but at present he had only received 2,486 answers,
In pursuance of an Act of Parliament passed so that an accurate list could not vet be made in the 16th Vict., intituled, “ An Act for the out. If he (the Lord Chancellor could be relief of the Suitors of the High Court of Chanfully satisfied that Mr. Smith had acted in the cery,” the Lord Chancellor doth order, that the office under the impression that he had been balance of cash in the hands of the Registrars duly appointed, he should have great pleasure of the said Court, or any of them, arising from in acceding to the prayer of the petition, the deposits on appeals, re-hearings, and excepmore so in considering the early tiine of life of | tions, which deposits were made previously to the petitioner. The affidavits, however, did the passing of the said Act, be ascertained, and not satisfy him on that head, and in addition the amount to be verified by affidavit, be, purto the want of all trace of the payment of the suant to the said Act, paid into the Bank to 81. 10s., either in Mr. Smith's books or in those the credit of the Accountant-General of the of his agents, one most material point had said Court, to the account to be entitled, “The been entirely overlooked, namely, that no Appeal Deposit Account.” And his lordship person was ever appointed a Master Extraordi. doth further order, that the senior Registrar nary in Chancery without a certificate of his for the time being do set down the deposits respectability from the neighbours of the appli- received by him under the said Act in a book cant. That such a searching inquiry into cha- ' to be kept by him for that purpose, together racter was requisite, was fully exemplified by the with a memorandum of the name of the cause present case, and, therefore, in the absence of or matter on which each deposit is made, and any explanation on this point, it must be taken of the party making the same, and of his sothat Mr. Smith knew all along that he was not licitor. And in any case where the said Court a Master Extraordinary. The fact of his hay, has heretofore by any order directed, or shall ing acted for 10 years did not do away with hereafter direct, any such deposit, or portion the difficulty of the certificate, as it did not at all of deposit, to be paid, the same shall be paid follow that he could at that short period after by the Accountant-General of the said Court entering business have cbtained the requisite out of any sum of cash which at the time of certificate. Moreover, the Court had received no such payment may be in the Bank to his satisfactory evidence of the death of the clerk, credit the account entitled, “The Appeal Dewho was represented to have received the money. posit Account," to the party or parties to In point of fact, all the persons who could whom such deposit or portion of deposit is hare thrown any light upon the subject seemed ordered to be paid, or to his or their solicitor to be dead, including Jackson, whose conduct. to be named in such order, whose receipt in however, entirely contradicted the statement such latter case shall be sufficient discharge that had been made that day. It had been re- for the same. And, for the purpose of such presented that Jackson advised Smith to go payments, the Accountant. General is from down to Birmingham to search his papers for time to time
for time to time to draw on the Bank according to an explanation, and yet on the following day, the form pr
the form prescribed by the Act of Parliament instead of asking for a vostponement of the and the General Rules and Orders of this case, which he (the Lord Chancellor) would Court in that case made and provided, without most readily have granted, he (Jackson) in such direction being contained in each partistructed counsel that no adjournment was re
cular order. quired. Did this look as if he expected any evidence would turn up to prove that Smith
NOTES OF THE WEEK. might have supposed that he had been arpointed a Master Extraordinary? Certainly
CHANCERY OFFICE COPIES. not; and, therefore, with every disposition on We understand that arrangements will be behalf of the Court to deal leniently with the made for the supply of stamps at the Record
Notes of the Week.- Superior Courts : Lord Chancellor.-Lords Justices. 113 and Writ office, so that office copies of an- 6. Order for time. swers, affidavits, &c., may be bespoke by the 7. Order for time, with costs. solicitor and paid for when the copy is taken 8. Order to answer interrogatories. away, in accordance with the foriner practice. I 9. Order to answer interrogatories, with It may be discretionary with the officer in cer-costs. tain cases to require a deposit.
| 10. Order to enlarge publication. The adhesive stamps are now ready for use, 11. Orders for time for closing evidence. and may be affixed in lieu of sending purposely 12. Advertisement. to the Stamp Office when the filing stamp of 2s.6d, has not been placed on the affidavit, or LORD DENMAN'S BUST AND LORD TRURO's the stamp of Is. 6d. for each deponent.
The Bust of Lord Denman, which has FORMS OF PROCEEDING BEFORE THE been executed by Mr. Christopher Moore, the EQUITY JUDGES.
Sculptor, has been placed at the upper end of Forms have been printed and may be ob- the Hall of the Incorporated Law Society. It tained of the law stationers for the several was presented to the Society at the expense of proceedings in the Chambers of the Equity several of its members, who were desirous of Judges. The following is a list of the thus marking their respect for the distinguished forms:
character of the late Chief Justice. The like1. Administration summons.
ness is very striking, and the work reflects 2. Judges' summons originating proceed- great credit on the sculptor. ings.
We believe that the List of Subscribers is 3. Summons for the production of docu- not finally closed. Members may inscribe ments.
their names in the Secretary's Office. 4. Chief clerks' summons.
| The admirable Portrait of Lord Truro, by 5. Order to amend bill or claim.
| Mr. Pickersgill, also adorns the Hall.
RECENT DECISIONS IN THE SUPERIOR COURTS,
AND SHORT NOTES OF CASES.
pressed thereon or affixed thereto, shall be reDec. 8.-In re Ipswich Charities–Arrange
ceived, or filed, or be used in relation to any
proceeding in the Court of Chancery, or be of ment as to filling up vacancies in trustees. - 8.-Talbot v. Lord Dormer--Hearing as
any validity for any purpose whatsoever, unless
Tor until the same shall have a stamp impressed to appointment of guardian to infant taken in
thereon or affixed thereto, in the manner diprivate,
rected by such order.” - 8. — Cox v. Dome — Order for transfer
Freeling in support, referred to Lambert v. from paper of Master of the Rolls.
Lomas, decided by Vice-Chancellor Turner (re-8.-In re Tharp-Order on petition for
ported p. 114, post). payment of arrears of annuity.
The Lords Justices said, that the stamp on - 8.- Stump v. Gaby - Order for re- the written bill was sufficient, and that the hearing.
printed copy, having been presented within the - 11.-Stump v. Gaby-- Appeal dismissed.
14 days, must be filed without any additional
Dec. 8.-In re Vines and another-Order for
delivery and taxation of bills of costs. SUITORS IN CHANCERY RELIEF ACT,
1 - 8, 9, 10. — Shrewsbury and Birmingham STAMP ON PRINTED BILL, WHERE WRIT
Railway Company v. Birmingham, WolverhampTEN COPY DULY STAMPED.
ton and Stour Valley Railway Company and Held, that where a written copy bill has been others-Cur. ad. vult.
filed, under s. 6 of the 15 8. 16 Vict. c. 86,! - 9.-Egremont v. Egremont-Order for the printed copy presented within the 14/ days, pursuant to the undertaking, must be without commission. filed without a fresh stamp, and that it is l"
- 10.--Tamlyn v. Reynolds-Cur. ad. vult. not liable to be stamped under the 15 g. 161 - 10.—Exparte Pemberton, in re Tyler Vict. c. 87, s. 12.
| Order of Commissioner discharged, without In this case a written copy bill had been costs. filed, under the 15 & 16 Vict. c. 86, s. 6 (printed - 13.-In re Richardson and others, ex« post, p. 114), and which was duly stamped with parte Buckingham and Midland Banking Coma ll. stamp, and on the solicitor tendering the pany-Appeal from Commissioner dismissed, printed copy, pursuant to his undertaking, to with costs. Mr. Berrey, the Record and Writs' Clerk, it – 13.-Brenan v. Preston-Order for apwas rejected, on the ground it required a 1l. pointment of receiver and manager. stamp, under s. 12 of the 15 & 16 Vict. c. 87,1 – 11, 14. — Clegg v. Fishwick - Decision which enacts, that “no document which by any affirmed of the Master of the Rolls. order or orders to be respectively made as – 14. — Lawton v. Swettenham - Appeal aforesaid shall be required to have a stamp im- dismissed from the Master of the Rolls.
Superior Courts : Rolls.-V. C. Turner.
Company, exparte Hills.-Motion dismissed, Stansfield v. Hobson. Nov. 6, 8, 13, 1852. with costs, to remove name from list of conMORTGAGEE IN POSSESSION. – ACKNOW- tributories.
LEDGMENT.-STATUTE OF LIMITATIONS. Dec. 8.- Parker v. Bigg-Order as to costs. -REDEMPTION.
-- 9.-Frail v. Ellis and others-Plaintiff A mortgagee in possession of an estate wrote held entitled to lien to extent of unpaid pur.
a letter to the mortgagor, pending negocia chase-money. tions for paying off the mortgage :-“I - 10.- Lawlon v. Campion-Demurrer to do not see the use of meeting you either | bill overruled. here or at M., unless someone is ready! - 11.- Smyth v. Upton — Order for apwith the money to pay me;" Held, a suffi- pointment of receiver, and for allowance for cient acknowledgment to take the case out maintenance and education of infant. of the Statute of Limitations, and a decree - 11. - Southern v. Wollaston- Judgment was therefore made for a redemption, with in favour of validity of bequest. a reference as to lasting improvements.
1 - 11.-Swinborn v. Nelson-Cur ad, rult. This was a claim to redeem certain estates
- 13.- Lady Sparrow v. Hilton - Judge which had been mortgaged in 1824, and which ment on exceptions to Master's report. had been in the possession of the mortgagee 1 - 14.-Crewer v. Costerton-Part beard. for more than 20 years. It appeared that by a - 14. - Eaton vil
- 14. — Eaton v. Hazel Decree for acletter to the mortgagor, dated in February, count and for appointment of new trustees. 1833, when negociations were pending to pay off the incumbrance, the former said :-“I do
Wice-Chancellor Turner. not see the use of meeting you either here or Lambert v. Lomas. Nov. 13, 1852. at Manchester, unless some one is ready with
IMPROVEMENT OF JURISDICTION OF EQUITY the money to pay me off.” The question was,
ACT.-FILING INTERROGATORIES WHERE whether this was a sufficient acknowledgment
WRITTEN BILL. to take the case out of the 3 & 4 W. 4, c. 27.
Leave given to file interrogatories for the deElmsley and Osborne for the plaintiff'; Palmer
fendant's examination, where the written and Humphrey for the defendant.
copy of the injunction bill had only been filed,
Cur, ad. vult.
and before the printed copy had been filed.
This was an application for an order to file a sufficient acknowledgment, under the autho- the interrogatories in this case, before the rity of Trulock v. Robey, 12 Sim. 402, and that printed bill had been filed,-a written copy the plaintiff was entitled to a decree to redeem, having been filed under the 15 & 16 Vict. c. with a reference as to lasting improvements.
86, s. 6, which enacts, that “the clerks of re
cords and writs of the said Court may receive Bunbury v. Bunbury. Nov. 13, 1852.
and file a written copy of any bill of complaint COMMISSION TO EXAMINE MARRIED WO- | praying a writ of injunction or a writ of ne
MAN. — EVIDENCE AS TO VALIDITY OF exeat regno, or filed for the purpose either MARRIAGE AND OF SETTLEMENT.
solely or among other things of making an A suit to set aside a disposition by the testa-infant a ward of the said Court, upon the pertor had been compromised, and a commis- sonal undertaking of the plaintiff or his solicision was sought to examine in Canada, tor to file a printed copy of such bill within 14 apart from her husband, a party interested, days, and every bill of complaint so filed shall who had married while an infant. The be deemed and taken to have been filed at the Court directed evidence to be adduced at time of filing the written copy thereof." Chambers of the validity of the marriage, By the 16th Order of August 7 last, "in and that a proper settlement had been cases in which the plaintiff requires an answer made, and if not, for the husband to sub- to any bill from any defendant or defendants mit proposals for the same.
thereto, the interrogatories for the examination In this suit, which was instituted to set of such defendant or defendants are to be filed aside a disposition by the testator, Mr. Bun- within eight days after the time limited for the bury, a compromise had been come to, and a appearance of such defendant or defendants;" reference was directed to inquire whether it and the 17th Order directs, that “if the dewas beneficial to the children. The Master fendant appear in person, or by his own solireported, with certain alterations, that it was citor, within the tiine limited for that purpose beneficial, but one of the children interested by the rules of Court, the plaintiff is, within had married while an infant, and it was now eight days after the time allowed for such apsought to obtain a commission for her exami pearance, to deliver to the defendant or defendnation in Canada, apart from her husband. ants so required to answer, or to his or their Hallett in support.
solicitor or solicitors, a copy of the interrogaThe Master of the Rolls said, evidence must tories so filed as aforesaid, or such of them as be produced at Chambers that a proper and the particular defendant or defendants shall be valid marriage had taken place and a settle- required to answer.” ment been duly made, and if not, for the hus- Amphlett in support. band to submit proposals for one.
The Vice-Chancellor said, the interrogatories · Dec. 8. – In re® British and Foreign Gas ingly.
might be received, and made an order accord