Review: Quain and Holroyd's New System of Common Law Procedure. plaintiff's attorney had no authority to dis-revivor, under section 129, against the husband charge a defendant from custody without receiving the amount for which execution issued, unless he had the plaintiff's express authority for so doing. In the case of a fi. fa. the attorney in the action has authority to order the sheriff to withdraw from possession. (Levi v. Abbott, 4 Exch. 588.)" "Formerly the retainer of the attorney in the action continued after judgment, so as to warrant him in issuing execution within a year and a day, or afterwards in continuation of a former writ issued within that time. (Bevins v. Hulme, 15 M & W. 96.) Now it is apprehended that the effect of section 128 is to prolong the retainer for six years from the recovery of the judgment for the same purpose." The marriage of a female plaintiff or defendant does not, according to the 141st section, abate the action or terminate the retainer of the attorney, unless by the express countermand of the husband. The note on this enactment is as follows: "Under the law as it stood when the present Act came into operation, the coverture of a woman plaintiff might have been pleaded in abatement, whether she married before or after action brought, and if she married after the defendant had pleaded in bar, her coverture might still be pleaded in abatement puis darrien continuance. The position of a woman defendant was somewhat different; if she married before action and was sued as a feme sole she might plead her own coverture in abatement, but if she married after action brought, her coverture was then not pleadable in abatement, for permitting such a plea would be to allow her to defeat the action by her own voluntary act-(King v. Jones, 2 Str. 811)nor if taken on a ca. su. in such a case would she be discharged, though she had no separate property. (Beynon v. Jones, 15 M & W. 566.) "Now, by the present section, the plea of coverture in abatement, either of the plaintiff's or defendant's coverture, is abolished, and the result is, that in all cases where a feme covert is liable to an action, or a cause of action is vested in her, or, in other words, where her eoverture could formerly have been objected to or taken advantage of only, by plea in abatement, she may now sue or be sued as a feme sole. It will be observed that where the judgment is against the wife, it may be executed against her alone, or by suggestion or writ of and wife; but where the judgment is for the wife, it may be executed by the husband's authority in the wife's name, without any writ of revivor or suggestion. This was substantially the old law, where the coverture might have been, but was not, pleaded in abatement. (Walker v. Golling, 11 M. & W. 78.) "From the enactment that the marriage of a woman defendant shall no longer cause the action to abate, but it may notwithstanding be proceeded in to judgment, and that such judgment may be executed against the wife alone, or by suggestion or writ of revivor against the husband and wife, it seems to follow that error in fact can no longer be brought by the husband and wife in such a case, as was formerly done where the wife was married at the time of action brought, but had neglected to plead her coverture in abatement. (2 Wms. Saund. 101 f.) "One advantage of proceeding in the name of the wife alone, without joining the husband, may be pointed out. If she die before trial, the action may be continued by or against her representatives under sections 137 and 138, whereas if the proceedings are taken in the joint names of husband and wife, and the action is one to which she is necessarily a party, it would abate by her death, except in actions within section 40, and in that case it could not be continued by or against her representative, but a fresh action must be brought." It is also a question under section 148 whether in proceedings in error an attorney can now be changed without the order of a Judge. "A writ of error was considered always as a new action, and might be brought or prosecuted by a new attorney, without obtaining the usual order to change the attorney (Batchelor V. Ellis, 7 T. R. 337), but though the proceeding to error is now to be a step in the cause, it is apprehended that it is not intended that it should be a step in every cause, but only in those causes in which a writ of error might formerly have been issued. It is not clear whether the word 'cause' used in this section be deemed to extend to proceedings on manincludes criminal cases; but it will doubtless damus, prohibition, or quo warranto. In secfrom which it may be inferred that the word tion 222 the expression civil causes' is used, 'cause' was intended to include criminal as well as civil proceedings.” The note on the 203rd and two following sections, relating to the defendant's confession in an action of ejectment, to be attested by his attorney, is also worthy of attention. It is remarked that Law of Attorneys-Re-admission after having been Struck off the Roll. 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. It ton 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 8. and 97.; 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 87. 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 business account, he could swear that he paid the amount to a clerk, who died before the 1st of last January. LAW OF ATTORNEYS. RE-ADMISSION AFTER HAVING BEEN The following report, relating to the case before the Lord Chancellor of Mr. John Smith, of Birmingham, is extracted from The Times of 13th November. This case has led to a material alteration in the law and practice relating to the appointment of Masters Extraordinary or Commissioners for taking affidavits in the Court of Chancery: : "Sir W. Wood (Mr. Tripp with him) appeared in support of a petition to have the name of Mr. Smith, late a solicitor at Birmingham, restored to the roll of solicitors. On the 15th of April last, in consequence of an affidavit, purporting to have been sworn before Smith, as a Master Extraordinary in Chancery at Folkestone, turning out to have been in reality sworn in Boulogne, inquiry was instituted by the Lord Chancellor, when it was discovered that Smith had never been appointed a Master Extraordinary at all. His Lordship then directed Smith to account for his having executed that office without authority, and on the following day, in consequence of no satisfactory reason being given, he ordered him to be struck off the roll of solicitors. Since then a rule had been obtained in the Queen's Bench for Smith to show cause why he should not also be removed from the list of attorneys, and that rule had been enlarged until the present petition should have been heard. In support of the present application, counsel now read several affidavits, that of Mr. Smith being to the effect that he had always acted under the impression that at the latter end of 1841, or the beginning of 1842, "The Lord Chancellor-What evidence is there that the person is dead, by saying that he died before a certain day? davit was that of a person of the name of Sal- "Sir W. Wood continued-The next affi 112 Law of Attorneys-New Order in Chancery-Notes of the Week. ment enough for the wrongful attestation of the affidavit, by having had his business, since April last, reduced from 2,000l. a year to almost nothing, and having been six weeks imprisoned through being unjustly sued on the same account. case, it could come to no other conclusion than that Smith had knowingly usurped the office of Master Extraordinary, without any authority even to excuse it. Although he (the Lord Chancellor) was unwilling to destroy all the future prospects of Mr. Smith, he should mark his sense of the offence by ordering him to repay all the expense incurred by his having improperly exercised the office, and, upon that being done, he might at the expiration of six months from the present day, be restored to the Roll of Solicitors." NEW ORDER IN CHANCERY. DEPOSITS ON APPEALS. 10th December, 1852. of Chancery. "The Lord Chancellor, after having gone through the facts of the case, said that the assumption of the office of Master Extraordinary in Chancery was a very grave offence, as conferring considerable importance where it was not due, and leading the public to suppose that the person holding the sign manual of the Crown had reposed great confidence in that person. In consequence of the present case, he had taken some trouble to ascertain the state of the roll of Masters Extraordinary, and found that it consisted of 4,430 names. He had caused In the matter of the Suitors of the High Court circulars to be sent to each of these persons 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 yet 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 time 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 8. 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 a Master Extraordinary. The fact of his having acted for 10 years did not do away with the difficulty of the certificate, as it did not at all follow that he could at that short period after entering business have obtained the requisite certificate. Moreover, the Court had received no satisfactory evidence of the death of the clerk, who was represented to have received the money. In point of fact, all the persons who could have thrown any light upon the subject seemed to be dead, including Jackson, whose conduct, however, entirely contradicted the statement that had been made that day. It had been represented that Jackson advised Smith to go down to Birmingham to search his papers for an explanation, and yet on the following day, instead of asking for a postponement of the case, which he (the Lord Chancellor) would most readily have granted, he (Jackson) instructed counsel that no adjournment was required. Did this look as if he expected any evidence would turn up to prove that Smith might have supposed that he had been appointed a Master Extraordinary? Certainly not; and, therefore, with every disposition on licitor. And in any case where the said Court has heretofore by any order directed, or shall hereafter direct, any such deposit, or portion of deposit, to be paid, the same shall be paid by the Accountant-General of the said Court out of any sum of cash which at the time of such payment may be in the Bank to his credit the account entitled, "The Appeal Deposit Account," to the party or parties to whom such deposit or portion of deposit is ordered to be paid, or to his or their solicitor to be named in such order, whose receipt in such latter case shall be sufficient discharge for the same. And, for the purpose of such payments, the Accountant-General is from time to time to draw on the Bank according to the form prescribed by the Act of Parliament and the General Rules and Orders of this Court in that case made and provided, without such direction being contained in each particular order. NOTES OF THE WEEK. CHANCERY OFFICE COPIES. 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. and Writ office, so that office copies of answers, affidavits, &c., may be bespoke by the solicitor and paid for when the copy is taken away, in accordance with the former practice. It may be discretionary with the officer in certain cases to require a deposit. The adhesive stamps are now ready for use, and may be affixed in lieu of sending purposely to the Stamp Office when the filing stamp of 2s. 6d. has not been placed on the affidavit, or the stamp of 1s. 6d. for each deponent. FORMS OF PROCEEDING BEFORE THE EQUITY JUDGES. Forms have been printed and may be obtained of the law stationers for the several proceedings in the Chambers of the Equity Judges. The following is a list of the forms: 1. Administration summons. 2. Judges' summons originating proceedings. 3. Summons for the production of docu ments. 4. Chief clerks' summons. 5. Order to amend bill or claim. 6. Order for time. 7. Order for time, with costs. 8. Order to answer interrogatories. 113 9. Order to answer interrogatories, with costs. 10. Order to enlarge publication. 11. Orders for time for closing evidence. 12. Advertisement. LORD DENMAN'S BUST AND LORD TRURO'S THE Bust of Lord Denman, which has been executed by Mr. Christopher Moore, the Sculptor, has been placed at the upper end of the Hall of the Incorporated Law Society. It was presented to the Society at the expense of several of its members, who were desirous of thus marking their respect for the distinguished character of the late Chief Justice. The likeness is very striking, and the work reflects great credit on the sculptor. We believe that the List of Subscribers is not finally closed. Members may inscribe their names in the Secretary's Office. The admirable Portrait of Lord Truro, by Mr. Pickersgill, also adorns the Hall. RECENT DECISIONS IN THE SUPERIOR COURTS, Lord Chancellor. pressed thereon or affixed thereto, shall be received, or filed, or be used in relation to any Dec. 8.—In re Ipswich Charities-Arrange-proceeding in the Court of Chancery, or be of ment as to filling up vacancies in trustees. 8.-Talbot v. Lord Dormer-Hearing as to appointment of guardian to infant taken in private. 8. Cox v. Dome Order for transfer from paper of Master of the Rolls. any validity for any purpose whatsoever, unless or until the same shall have a stamp impressed thereon or affixed thereto, in the manner directed by such order." Freeling in support, referred to Lambert v. 8.-In re Tharp-Order on petition for Lomas, decided by Vice-Chancellor Turner (reported p. 114, post). payment of arrears of annuity. -- 8. Stump v. Gaby Order for re hearing. The Lords Justices said, that the stamp on the written bill was sufficient, and that the 11.—Stump v. Gaby-Appeal dismissed. printed copy, having been presented within the Lords Justices. Jones v. Batten. Dec. 8, 1852. SUITORS IN CHANCERY RELIEF ACT. Held, that where a written copy bill has been In this case a written copy bill had been filed, under the 15 & 16 Vict. c. 86, s. 6 (printed post, p. 114), and which was duly stamped with a 17. stamp, and on the solicitor tendering the printed copy, pursuant to his undertaking, to Mr. Berrey, the Record and Writs' Clerk, it was rejected, on the ground it required a 17. stamp, under s. 12 of the 15 & 16 Vict. c. 87, which enacts, that "no document which by any order or orders to be respectively made as aforesaid shall be required to have a stamp im -REDEMPTION. Dec. 8.-Parker v. Bigg—Order as to costs. 9.-Frail v. Ellis and others- Plaintiff - 11.- Smyth v. Upton - Order for appointment of receiver, and for allowance for maintenance and education of infant. 11.-Southern v. Wollaston-Judgment in favour of validity of bequest. ment 11.-Swinborn v. Nelson-Cur ad. vult. A mortgagee in possession of an estate wrote held entitled to lien to extent of unpaid pura letter to the mortgagor, pending negocia-chase-money. tions for paying off the mortgage :-" I 10.-Laxton v. Campion-Demurrer to do not see the use of meeting you either bill overruled. here or at M., unless some one is ready with the money to pay me:" Held, a sufficient acknowledgment to take the case out of the Statute of Limitations, and a decree was therefore made for a redemption, with a reference as to lasting improvements. THIS was a claim to redeem certain estates which had been mortgaged in 1824, and which had been in the possession of the mortgagee for more than 20 years. It appeared that by a letter 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 not see the use of meeting you either here or at Manchester, unless some one is ready with the money to pay me off." The question was, whether this was a sufficient acknowledgment to take the case out of the 3 & 4 W. 4, c. 27. Elmsley and Osborne for the plaintiff; Palmer and Humphrey for the defendant. Cur, ad. vult. The Master of the Rolls said, that the letter was a sufficient acknowledgment, under the authority of Trulock v. Robey, 12 Sim. 402, and that the plaintiff was entitled to a decree to redeem, with a reference as to lasting improvements. 14. Vice-Chancellor Turner. Lambert v. Lomas. Nov. 13, 1852. ACT. FILING INTERROGATORIES WHERE Leave given to file interrogatories for the defendant's examination, where the written copy of the injunction bill had only been filed, and before the printed copy had been filed. THIS was an application for an order to file the interrogatories in this case, before the printed bill had been filed,-a written copy having been filed under the 15 & 16 Vict. c. 86, s. 6, which enacts, that "the clerks of records 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 MARRIAGE AND OF SETTLEMENT. exeat regno, or filed for the purpose either 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, and that a proper settlement had been made, and if not, for the husband to submit proposals for the same. IN this suit, which was instituted to set aside a disposition by the testator, Mr. Bunbury, a compromise had been come to, and a reference was directed to inquire whether it was beneficial to the children. The Master reported, with certain alterations, that it was beneficial, but one of the children interested had married while an infant, and it was now sought to obtain a commission for her examination in Canada, apart from her husband. Hallett in support. The Master of the Rolls said, evidence must be produced at Chambers that a proper and valid marriage had taken place and a settlement been duly made, and if not, for the husband to submit proposals for one. By the 16th Order of August 7 last, "in cases in which the plaintiff requires an answer to any bill from any defendant or defendants thereto, the interrogatories for the examination of such defendant or defendants are to be filed within eight days after the time limited for the appearance of such defendant or defendants;" and the 17th Order directs, that "if the defendant appear in person, or by his own solicitor, within the time limited for that purpose by the rules of Court, the plaintiff is, within eight days after the time allowed for such appearance, to deliver to the defendant or defendants so required to answer, or to his or their solicitor or solicitors, a copy of the interrogatories so filed as aforesaid, or such of them as the particular defendant or defendants shall be required to answer." Dec. 8. ·In re British and Foreign Gas ingly. |