« EelmineJätka »
Superior Courts : Rolls.-V. C. Turner,--V. C. Kindersley.
155 Order made for the appointment under the 151 Dec. 22.- Moneypenny v. Baker-Injunction
8. 16 Vict. c. 80, s. 42, of a surveyor to refused.
claim for specific performance of lease. This was an application for the appointment — 22, 24.-Farina v. Gebhardt-Injunction of a surveyor under the 15 & 16 Vict. c. 80, s. refused. 42, to value certain lands in the parish of St. Peter-le-Poer, belonging to a charity, which Vice-Chancellor Kindersley. were required by the above company for the purposes of their act.
In re Ground's Estate. Nov. 15, 1852. It appeared the evidence was conflicting as to the value of the PURCHASE - MONEY OF COPYHOLD LAND property.
TAKEN BY RAILWAY. - INVESTMENT IN Roupell in support; James for the Attorney
ENFRANCHISING.-CONVEYANCING COUNGeneral, sought the appointment of a surveyor
SEL. who had already given evidence in the case, Order made for the investment, on the petition and for a direction that regard should be paid of the tenant for life, under the 4 8.5 Vict. to the fact that the premises were of more c. 35, of the purchase-money of certain value to the company than to any ordinary copyhold lands in the enfranchisement of purchaser.
the remaining portion—the difference in the 'The Master of the Rolls said, that an in amount required being advanced by the dependent surveyor would be appointed, and petitioner and charged on the estate—the refused to give the direction asked, or fix a counsel for the petitioner certifying his appretium pactionis.
proral of the deed-otherwise the Court
would have referred it to one of the conveyDec. 22.--Bradley and others v. Scott and veyancing counsel under the 15 8. 16 Vict. wife- Application to change guardians to in c. 80. fants from the defendant and his wife.
This was a petition on behalf of the tenant -- 23.- Attorney-General v. Gilbert--Order for life of certain copyhold lands at East Derefor division of fund as prayed.
ham and Hoe, Norfolk, which had been taken - 23.-Bridger v. Phillips-Order on trus- for t tees to complete contract for sale of real estate.
18 for the purposes of the Norfolk Railway Com- 23.-Hurst v. Hurst-Decree for fore- !
pany, for the investment of the purchase-money,
paid into Court under the Lands' Clauses' Act closure.
(8 Vict. c. 18), in the enfranchisement of the — 23.- Richardson v. Ward and others
- remainder of the estate under the 4 & 5 Vict. c. Order varying marriage settlement in con
35,-the petitioner offering to advance the sum formity with articles.
required above the purchase-money. The pe- 23. — Banks V. Banks — Usual order titioner had power to appoint after his death opening biddings on sale under decree.
arnongst his children. - 23. — Richards v. Scarborough Public
Malins and Elderton in support. Market Company--Injunction granted.
The Vice-Chancellor said, that in strictness
the opinion of one of the conveyancing counsel Vice-Chancellor Turner.
should be taken as to the assignment, but upon Crofts v. Middleton. Dec. 6, 1852.
the petitioner's counsel undertaking to certify
his approval of the deed, the order was made JURISDICTION OF EQUITY IMPROVEMENT as asked.
ACT. - APPOINTMENT OF EXAMINER
Dec. 22.-In re March Charities-Cur. ad. Order made appointing an examiner under the vult.
15 8. 16 Vict. c. 86, to take the examina-' - 22.- Exparte Overseers of Ardsley-Ap
tion of witnesses vivâ voce in Australia. Iplication refused for purchase-money paid by This was an application for the appointment railway company for parish lands to be laid out of an examiner to take the examination of cer- in building union workhouse. tain witnesses in Australia vivá voce, under the - 23.- Piddock v. Boultbee-Order for ap15 & 16 Vict. c. 86.
pointment of guardian ad litem of lunatic deThe Vice-Chancellor, after consulting the fendant. other Judges, made the order as asked.
- 23.- Rice v. Rice - Motion refused for
order to appear on absconding debtor under Dec. 22.- In re Robinson's Charity - Ap. 31st Order of May, 1845. plication for appointment of trustees to be made to Lord Chancellor.
Superior Courts : V.C. Stuart.- Queen's Bench.-Common Pleas.
Court of Queeu's Bench.
TENANTS IN COMMON.-STAMP ACT.MINING COMPANY ON COST-BOOK PRIN-1 CONSIDERATIon. — MONEY PAID FOR
CIPLE. --LIABILITY OF CONTRIBUTORY. EQUALITY OF EXCHANGE,
A deed, in pursuance of an agreement beIn a mining company, conducted on the cost tween certain tenants in common of lands
book principle, there was power of with for a partition and exchange thereof among drawing on certain conditions being com themselves, was held not a sale within the plied with. The appellant had relinquished Stamp Act, 48 G. 3, c. 149, and that it was his share in August, 1851. Upon the therefore unnecessary to state as considercompany being sometime afterwards wound ation the money which had been paid for up, held that the appellant was not liable equality of exchange : Held, therefore, that as a contributory, in the absence of any the plaintiff was entitled to recover on a fresh contract between the parties, and in bond given to secure the payment of a sum asmuch as the lease which formed the sub of money for that purpose. ject-matter of the partnership, and in reference to which the amount subscribed
This was a demurrer to the plea in this
a action, which was brought to recover a sum of by each was regulated, remained vested in
8001., and interest, upon a bond. It appeared the managing partners for the benefit of the
that an agreement had been entered into by the concern.
tenants in common of certain estates for er. This was an appeal from the decision of change and partition thereof among them, and Master Tinney inserting the appellant's name that the sum in question was payable by the on the list of contributories to the above com- defendant to the plaintiff to make up an pany. It appeared that the company was inequality in the value of property exchanged. formed on the cost-book principle, and that by The deed in pursuance of this agreement was one of the rules, “any shareholder may deter- duly executed, but the defendant objected, that mine his or her responsibility or liability with as it did not state as consideration the 800L respect to the affairs, upon his or her giving secured by bond, the plaintiff was not entitled notice in writing to the purser of the company to recover under the Stamp Act, 43 Geo. 3, c. for the time being of his or her desire of retir- | 149, ss. 22, 24. ing from the company, and also upon deposit- Unthank, in support of the demarrer to a ing with the said purser the transfer of the plea setting up this by way of defence, conshare or shares held by him or her, and signing tended the transaction did not amount to a a relinquishment of all claims or demands on sale, and was not therefore within the Act. the company in respect of such share or shares." Willes, contrà, for the defendant. The appellant had, in August, 1851, signed a The Court said, that the transaction in ques. relinquishment of his interest in the under- tion was clearly not a sale, but a partition; and taking,
that it was not therefore necessary to express Selwyn for the appellant; Roxburgh and the amount paid for equality of exchange in the Morris for the official manager.
deed, and that the demurrer must be allowed, The Vice-Chancellor said, as the company and ihe plaintiff was entitled to judgment. was formed on the cost-book system, which made a shareholder liable for no more than the
Court of Common Pleas. amount he had actually paid down, unless that amount should have been increased by some
Leroux v. Brown.. Nov. 10, 1852. subsequent arrangement between the parties. PAROL CONTRACT MADE IN FRANCE. – and as the lease, which formed the subject- STATUTE OF FRAUDS. — ACTION WILL matter of the partnership, was vested in the NOT LIE IN THIS COUNTRY. managing partners for the benefit of the whole A contract was entered into at Calais, is concern, and the amount subscribed by each France, for the supply by the plaintiff to must have had reference to what was necessary the defendant, at a salary, of provisions to answer liabilities in respect of such lease, for the London market. The employment the appellant was not liable as a contributory, was for a year, to commence at a day suband the appeal must be allowed-the costs to
sequent to the time of making the contract, come out of the estate.
which was parol: Held, that although it
might be valid according to the law of Dec. 22.---In re Northampton Charities - France, it could not be enforced in this Application for appointment of new trustees to country, under the 29 Car. 2, c. 3, s. 4, be made to Lord Chancellor.
and that an action for its breach would not – 22.-- Goodwin v. Fielding and another lie. A rule was accordingly made absolute Injunction granted.
to enter the verdict for the defendant, ok - 23.-Brown v. Vernon-Order for account leave reserved. of money due on mortgage and for sale. - 23.-Colombine v. Penhall ; Penhall v. Ivordir
This was a rule nisi to enter a nonsuit or a Miller -- Part heard.
verdict for the defendant, pursuant to leave reserved. The action was brought on a parol
Superior Courts : Common Pleas.-Exchequer.- Analytical Digest.
agreement entered into by the defendant to the contract, but to the proceedings upon it, employ the plaintiff at certain wages, to collect and although it was good if enforced in France, provisions at Calais for the London market, and it could not be enforced here. The action alleged as a breach, that although the plaintiff would therefore not lie, and the rule must be was ready and willing and requested to be so made absolute to enter the verdict for the deemployed, the defendant wholly refused so to fendant. employ him or to pay him his wages. The defendant pleaded non assumpsit. On the
Court of Erchequer. trial before Talfourd, J., at the Middlesex Sit
Mulhall v. Neville. Nov. 22, 23, 1852. tings in Trinity Term last, it appeared that the employment was for a year, to commence at a B)
| BILL OF EXCHANGE, — ACCEPTANCE IN day subsequent to the time of making the con
BLANK. - FILLING IN DATE BY INtract. The plaintiff obtained a verdict, subject
DORSEE. to this motion, on the question whether it was Rule absolute for the new trial of an action within the Statute of Frauds (29 Car. 2, c. 3),
by indorsee against drawer and acceptor of and as it had been made in a foreign country.
bill of exchange, where evidence was reAllen, S. L., and Metcalfe showed cause, jected to support plea of non fecit to show citing Carrington v. Roots, 2 M. & W. 248 ; that it was accepted in blank in 1846, and Reade v, Lamb, 6 Exch. R. 130.
that the date had been filled in as of 1847 Hawkins and Honeyman in support, referred in the year 1851, by the plaintiff', the into Crosby v. Wadsworth, 6 East, 602; Lay
dorsee from the defendant's indorsee. thoarp v. Bryant, 2 Bing. N. C. 735 ; British This was a rule nisi granted on November Linen Company v. Drummond, 10 B. & C. 903; 13 last, for a new trial of this action which was Fergusson v. Fyffe, 8 Cl. & F. 121; De la brought on a bill of exchange for 2001, drawn Vega v. Vianna, 1 B. & Ad. 284; Brown v. by the defendant and accepted by a Mr. Page Thornton, 6 A. & E. 185 ; Dobell v. Hutchinson, in 1846, and payable four years after date. It 3 A. & E. 355 ; Lopez v. Burslem, 4 Moore, appeared that the bill was not dated, and had P. C. 300 ; Davis v. Trevanion, 2 D.& L. 743. been indorsed to a Mr. Cannon, who kept it The Court said, the Statute ' applied not to until 1851, when he indorsed to the plaintiff,
who filled in the date as of 1847. The defend? Which enacts, s. 4, “that no action shall ant pleaded non fecit, and on the trial before be brought whereby to charge ” any person Pollock, L. C. B., at the last sittings for Middle"upon any agreement that is not to be per- sex, the plaintiff obtained a verdict, upon the formed within the space of one year from the evidence as to the acceptance in blank being making thereof, unless the agreement upon rejected. which such action shall be brought, or some Chambers and Petersdorff showed cause, and memorandum or note thereof, shall be in writ- cited Russell v. Langstaff, Doug. 514; Schultz ing, and signed by the party to be charged | v. Astley, 2 Bing. N. C. 544. therewith, or some other person thereunto by The Court, after taking time to consider, him lawfully authorised.”
made the rule absolute for a new trial.
ANALYTICAL DIGEST OF CASES,
REPORTED IN ALL THE COURTS. ·
LAW OF ATTORNEYS AND SOLI. of an attorney of the Superior Courts. In re
Humphreys, 7 D. & L. 344.
AGENT'S BILL OF costs. Affidavit.-Swearing before attorney of party. Taxation. A bill for work done by one at-Although the exclusion by the Reg. Gen., torney as agent for another, is taxable Hil. T., 2 W. 4, pt. 1, r. 6, of affidavits sworn the 6 & 7 Vict. c. 73, s. 37. Smith v. Dimes, before the party's attorney is limited to 7 D. & L. 78. cases where there is a record, this Court rejects them also in applications where there is
Cases cited in the judgment : Weymouth v. no cause in Court. In re Gray, 1 L. & M.
Knipe, 3 Bing. N. c. 387 ; 5 Dowl. 495; 3 93.
Scott, 764; Cardale v. Bull, 4 Q. B. 611;
Jones v. Roberts, 8 Sim. 397 ; In re Gedye, ADMISSION.
2 D. & L. 915; In re Simons, 3 D. & L. Attorney practising in Court of Great Ses- | 156 ; 2 D. & L. 500; Billing v. Coppock, 1 sions in Wales.-An attorney of the Court of Exch. R. 14 ; 5 D. & L. 126. Great Sessions in Wales can only be admitted an attorney of the Superior Courts, under the
ALTERING NAME UPON THE ROLL. 11 Geo. 4, and i Wm. 4, c. 70, s. 17, upon 1. The Court of Queen's Bench baving alpayment of 601., the difference in amount be- lowed an attorney to alter his name on the tween the duty payable upon the articles of Roll, this Court (for the sake of uniformity) clerkship of an attorney of the Court of Great allowed it. Exparte Daggett, 9 C. B. 218. Sessions in Wales, and that payable upon those 2. The Court permitted an attorney who
Analytical Digest of Cases : Law of Attorneys and Solicitors. had been admitted in the Courts of Queen’s mace, at the request of the defendant, so being Bench and Exchequer in the name of such attorney, &c., arrested the plaintiff, and “ Thomas James Moses," to sign the Roll of conveyed him to prison, &c., justifying the Attorneys of this Court (under the 6 & 7 Vict. trespasses complained of. Replication, trac. 73, s. 27), by the name of “Thomas James,” versing that it was ordered that the plaintiff on the production of his admission in the should be committed modo et formá; on which Queen's Bench, upon an affidavit showing the issue was joined. circumstances under which he had changed At the trial, the only evidence which the his name, and also showing that the Courts of defendant produced in support of his plea, was Queen's Bench and Exchequer had permitted a warrant in the terms of the plea, but which the entry of his name on the respective Rolls was invalid on the face of it, for not stating of those Courts to be so altered. Exparte any previous summons to the plaintiff to show James, 9 C. B. 220.
cause why he should not be committed. The 3. On the application of an attorney to be Judge, however, directed the jury to find for allowed to substitute the name of J. Heaton D. the defendant on the issue as taken. on the Roll of Attorneys, in the place of J. D., Held, on motion for judgment non obstante this Court refused to alter the Roll, but di- veredicto, or for a new trial, that the plea must rected the Master to make a memorandum on be taken after verdict to allege a valid order of the Roll opposite the party's name, stating commitment, notwithstanding it did not state that he was now known by the name of J. any previous summons to the plaintiff to show Heaton D., and that the memorandum was cause why he should not be committed ; and made by rule of Court. In re Deardon, 5 Exch. as no valid order of commitment was proved, R. 740.
that there was a misdirection on the part of ARTICLED CLERK.
the Judge, and that there must, consequently,
be a new trial. Registry of articles nunc pro tunc.-Where Held, also, that although an attorney who on a rule to reckon the service of articles of does no more than set a Court of competent clerkship from the date of the articles, and not jurisdiction in motion on behalf of his client is from the date of filing the affidavit of execu- no trespasser notwithstanding that the Court. tion, it appeared that nearly the whole time of on his motion, does an act of trespass by its service had elapsed, the Court ordered that the officer: yet where, by a special plea, like the matter should be inquired into by the Master, one in question, he attempts to justify his conand that, unless he certified to the contrary currence in the act complained of, he can only within a certain time, the rule should be made make out his justification by showing a legal absolute. Exparte Kellett, 2 L. M. & P. 11. authority under which he acted. Kinning y. AUTHORITY.
| Buchanan, 7 D. & L. 169.
Case cited in the judgment: Exparte Kinning, 1. Trespass. - Justification by attorney under!
4 C. B. 507. warrant of commitment of Inferior Court.Trespass for false imprisonment. Plea, that i 2. Sheriff:-- Teslatum fi. fa.- Return to. W. T. had recovered judgment against the Order to withdraw by attorney.-To a writ of plaintiff in an inferior Court of Record : that 'fi. fa., the sheriff returned that he received subsequently the Judge, after hearing the from E. L. L., the attorney of the plaintiff in parties, made an order under the 8 & 9° Vict. the said writ named, an order to withdraw from c. 127, for the payment of the debt; that the possession; and that he thereupon withdrew : plaintiff made default in payment: that after- | Held, good. Levy v. Abbott, 7 D. & L. 185. wards it was proved before the said Court that. 3. Rule to compute.-Service on attorney of the plaintiff had notice of the order, and had some of the defendants.--In an action against been served with a copy and shown the origin three defendants upon bills of exchange, sernal, and that the amount had been demanded vice of a rule nisi to compute upon the attorney of him ; that thereupon the Judge “ duly, and 'of two is sufficient. Etison v. Wood, 1 L. & according to the form of the Statute," ordered : M. 63. the defendant to be imprisoned for 40 days, ' Cases cited: Figgins v. Ward, 2 C. & M. 124 ; &c. It then stated, that the Judge, at the re-i 2 Dowl. 364; Arnold v. Evans, 9 Dowl, 219; quest of the defendant, then being the attorney 7 M. & W. 462. of and for the said W. T., and as such attorney 4. To institute a suit.-Costs.-A., who was duly and according to the form of the Statute, an equitable mortgagee by deposit of deeds of &c., made a warrant in writing, &c., directed property belonging to the estate of B., was paid to the serjeant-at-mace, and to the keeper of off by Č., on an agreement with the executors the debtors' prison, &c. The warrant was set of B. (as their solicitor stated), that proceedout, which, after reciting the judgment, sum- ings should be taken in Ai's name to enforce mons, and order to pay by instalments (but the mortgage security, and thereby to effect a not stating any summons previous to the sale of the whole or part of the mortgaged proorder of commitment), authorised the impri-perty : and the solicitor of the executors filed sonment of the plaintiff for 40 days. The a claim for foreclosure in the name of A. against plea then went on to state that the defendant, the representatives of B. A. denied that he as such attorney, &c., delivered the warrant to had given authority to file the claim in his the serjeant-at-mace, and that the serjeant-at- name, and moved that it might be taken off the Analytical Digest of Cases : Law of Attorneys and Solicitors.
159 file: Held, that there being only assertion had been brought against him, defendant, and against assertion, and the solicitor alone stating no more appeared to have been done. The that the instructions were given in the presence items in respect of actions as to which both of A.-the case was to be governed by Allen v. parties and Courts were specified, made up the Bone, 4 Beav. 493, and the claim was dis- greater part of the whole bill. missed with costs, to be paid by the solicitor. Held, a sufficient compliance with the Statute.
That, in such a case, the Court could not Keene v. Ward, 13 Q. B. 515. adjudicate between the solicitor, by whom the Case cited in the judgment: Ivimey v. Marks, claim was filed, and the defendants, the repre- 16 M. & W. 845. sentatives of B., by whom the instructions were given to file the claim
3. Title of cause.-An attorney's bill of costs Court left the solicitor to any legal remedy he 73. 8. 37. if the Court and cause in which the
elis sufficient within the Statute 6 & 7 Vict. c. might have against such parties. Crossley v. business is done are so specified as to enable Crowther, 9 Hare, 384.
the client, with the bill alone, to take advice as BILL of costs.
to taxing it, although the techvical name of the 1. When sufficiently specific. — Consolidated
cause is not given. Anderson v. Boynton, 7 D. actions. — Judgment having been obtained
6. & L. 25. against W., the public officer of a banking
Cases cited in the judgment: Lewis v. Primcompany, the creditor issued writs of sci. fa.
rose, 6 Q. B. 265; Englebeart v. Moore, 15 against seven of the shareholders, each of
M. & W. 548; 4 D. & L. 60; Ivimey v. whom, severally, retained the same attorney
Marks, 16 M. & W.843 ; 4 D. & L. 709. for his defence. Afterwards, by consent, the
4. What insufficient us to cause and Court, actions (in the Court of Exchequer) were con- | under the 6 8. 7 Vict. c. 73, s. 37.- An attorsolidated, and one tried.
ney's bill did not in express terms state the Held, that it might be inferred from these names of the Court and of the cause in which facts, that the several retainers were with the business charged for was done. One item drawn, and a joint retainer given to the attor- of the bill referred to a petition pr
of the bill referred to a petition presented by ney by all the defendants as to future pro- the client in the Court of Review ; and a ceedings; and
charge in another part of the bill was made Held, that he might recover from one the for the attorney's attendance on the “petitionamount of his bill of costs in the action tried, ing solicitor ;” but it did not appear in any though that party was not the defendant in the part of the bill in what Court or cause the lastindividual action.
mentioned proceeding had taken place : Held, The attorney delivered a bill of costs to the that the bill was insufficient. Dimes y. Wright, one defendant, headed “In the Exchequer of 7 D. & L. 292. Pleas, A.” (the defendant), “ debtor to B.” (the Case cited in the judgment: Martindale v. Falkattorney). The name of the particular cause | ner, 2 C. B. 706; 3 D. & L. 600. tried was not given; but the nature of the business appeared by the items; and one of
5. Heading and delivery of.-An attorney them, referring to the judgment against the
| was employed by the solicitor of a provisionally public officer, mentioned the title of the cause
registered company to do some business for
the company, 'He delivered his bill, headed contained items for business in Chancery.
"]“ N. L. & H. Railway to R. H. D., debtor,"
I Held, a sufficient bill (under Stat. 6 & 7
to the solicitor, at the request of the latter. A Vict. c. 73, s. 37), to charge defendant for the
copy of it was afterwards produced to the debusiness (after consolidation) in the Court of |
fendant, one of the provisional committee, who Exchequer. Anderson v. Boynton, 13 Q. B.
said that he had seen that bill before, that 308.
some of the charges were high, but that it
would not be disputed; and the copy so proCases cited in the judgment : Lewis v. Prim-duced was thereupon taken back.
rose, 6 Q. B. 265 ; Englebeart v. Moore, 15 Held, 1st, that the heading of the bill was M. & W. 543; Martindale v. Falkner, 2 C. B. sufficient to charge the defendant; and 706 ; Ivimey v. Marks, 16 M. & W. 843.
2nd, That there was evidence to go to the 2. When sufficiently particular.-In an action jury of a personal delivery to the defendant. by an attorney for business done, it appeared
Whether the delivery to the solicitor of the that he had delivered a bill. under Stat. 6&7company was a delivery to the defendant, Vict. c. 73, s. 37, which contained charges in quo
roes in quære?'' Phipps v. Daubney, 2 L. M. & P. 180. respect of nine actions in the Court of Exche-| Case cited in the judgment: Vincent v. Slayquer and two in the Court of Common Pleas. maker, 12 East, 372. The Courts and the parties to these causes See Delivery of Bill ; Signed Bill. were named in the bill. It contained, also, items in respect of two other ac.ions, each of
CHAMPERTY. which appeared to have been in some one of Maintenance.-An agreement may amount to the Superior Courts of Law: as to one of champerty or maintenance, or savour of chamthese, the parties were named in the bill; as perty, though made between persons not standto the other, it appeared that the present de-ing in the relation of solicitor and client, or in fendant had informed plaintiff that an action any analogous relation; and such an agree