« EelmineJätka »
Third Report of the Chancery Commissioners.—Common Law Procedure Act.
ration of this general question, remarking only | being relieved from the responsibility imposed upon this point that a complete change in the system could not be effected for many years to come, on account of the vested rights of the existing clerks."
The Commissioners think, however, that it would be expedient to make some alterations in the constitution of the office applicable only to future appointments.
on them of seeing that funds disposed of under orders of the Court are properly discharged from legacy and succession duties; and they suggest that the Court should be satisfied of the discharge before the order is made. We are, however, of opinion that the practice cannot safely or properly be altered in this respect. The duties are seldom paid or provided for until after the party liable has been declared entitled to the fund, and has obtained known until after the decision of the Court an order for payment. In many cases it is not what legacy or succession duty is payable, or
"Considering the time which must elapse before a clerk entering the office becomes a registrar, we think it desirable that a person should not be eligible after a certain age. The average period of service as a clerk being by whom it is to be paid. If, therefore, the 20 years, we think it would be right to fix Judge were in every case to be satisfied of this the age of entry at not later than 25 or 26 fact, a further hearing for this purpose would years. It has been suggested that each clerk in many cases take place, thus causing increasshould serve a year of probation, and that he ed expense and delay. We consider that the should not be fully appointed without a certifi- registrar is the proper officer to discharge such cate of approval by the senior registrar of his duties when imposed by the Legislature on the conduct during the year. We approve of this suggestion.
COURT OF RECORD.
"We are further of opinion that the junior COMMON LAW PROCEDURE ACT, clerks in the rotation not attached in particular to any registrar should, subject to the supervision of the senior registrar, be specially EXTENSION OF ACT TO SALFORD BOROUGH under the superintendence of the two principal clerks to the registrars who have not declined the office of registrar, and that opportunities should be afforded to these two principal clerks of attending the Court to qualify themselves for the office of registrar to which they are
next in succession."
The Commissioners think, also, that the improvements in the constitution and practice of the registrar's office which they have recommended, would be incomplete so long as the present want of proper accommodation exists.
"We consider that each registrar should have a separate room, that the principal clerk attached to each registrar should also have a separate room contiguous to the room occupied by the registrar, and that proper and convenient accommodation should be provided for the other clerks and for the public.
"We see no reason to recommend any change in the hours of attendance at the registrars' office.
"We are of opinion, that the orders of the Court may in many cases be usefully shortened, and that in many cases, the ordinary directions contained in decrees might be provided for by general orders. The general orders made by Lord Cranworth on the 7th November, 1853, apply this principle to orders in lunacy, and have not produced any inconvenience that we are aware of.
"We consider that much trouble and inconvenience might be avoided, if persons presenting petitions to the Court were required to state at the foot of the petition the persons, if any, upon whom the petition was intended to be served.
"We find that the registrars are desirous of
It is ordered by her Majesty in Council, that within one month after such order shall have been published in the London Gazette, cedure Act, 1854," and the rules made and to all the provisions of the "Common Law Probe made in pursuance thereof, with all requisite modifications and alterations with reference to the constitution and peculiar circumstances of the said Court (and except such provisions as are contained in the sections of the said Act numbered respectively 2, 17, 75, 76, 77, 95, 97, 98, and the whole of the 99th section, except so much thereof as explains the meaning of the word "action;" and also except sections 100, 101, 102, 104, 105, and 107, in the copy of the said Act printed by her Majesty's printers) shall extend and apply to the Court of Record for the hundred of Salford, in the county of Lancaster.
And it was further directed that all the authorities, powers, or duties exercisable by the Court or a Judge, or any number of Judges, under any of the sections of the said “Common Law Procedure Act, 1854," hereby extended and applied to the said Court of Record for the hundred of Salford, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by such Court or the Judge thereof, or his deputy duly appointed; that all the authorities, powers, or duties, exercisable by a Master, or any number of Masters, under any of the sections of the said Act as aforesaid, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by the Registrar of the said Court, or his deputy duly appointed; and that all the authorities, powers, or duties exercisable by a sheriff under any of the sections of the said Act as
Summary Procedure on Bills of Exchange Act, 1855.-Questions at the Examination.
aforesaid, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by the Head Bailiff of the said Court.-From the London Gazette of sth April.
SUMMARY PROCEDURE ON BILLS
OF EXCHANGE ACT, 1855.
EXTENSION OF ACT TO SALFORD BOROUGH
Ir is ordered by her Majesty in Council,
And it was further directed, that all the authorities, powers, or duties, exercisable by the Court or a Judge, or any number of Judges, under any of the sections of the said Summary Procedure on Bills of Exchange Act, 1855," hereby extended and applied to the said Court of Record for the hundred of Salford, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by such Court or the Judge thereof, or his deputy duly appointed; that all the authorities, powers, or duties exercisable by a Master or any number of Masters under any of the sections of the said Act as aforesaid, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by the Registrar of the said Court, or his deputy duly appointed; and that all the authorities, powers, or duties exercisable by a sheriff under any of the sections of the said Act as aforesaid, shall, as regards matters and proceedings in the said Court of Record, be exercisable and exercised by the Head Bailiff of the said Court.-From the London Gazette of 8th April.
QUESTIONS AT THE EXAMINATION.
II. COMMON LAW AND PRACTICE OF THE
case of a defendant residing within the juris5, What is the mode of proceeding in the diction of the Superior Courts, who wilfully evades personal service of the writ of summons?
6. Is the service of the writ of summons confined to any particular county?
summons in force?
8. Define a plea by way of traverse, and a
which though informal is good in substance? 10. Can a defendant demur to a declaration Give your reasons for your answer.
11. From what time does the Statute of Limitations in an action for the breach of a simple contract begin to run?
Frauds to make a contract for the sale of
the breach of his contract?
14. What do you understand by the legal and by what recent enactment has this maxim maxim-Actio personalis moritur cum personá? been qualified?
whom C. is indebted,-how can A. obtain the
a new trial is usually granted?
holder of a bill of exchange to entitle him to
cases of libel and slander?
the suit of a parent for the seduction of his
III. CONVEYANCING. 20. Define a base fee.
B. is tenant in tail in remainder. How is B. 21. A. is tenant for life of freehold land, and to acquire an estate in fee simple in remainder? 22. Define an incorporeal hereditament, and give some instances.
23. Define an estate in tail general, and an estate in tail male special.
24. Freehold land is limited to such uses as 4. may appoint. A. appoints to B. and his heirs, to the use of C. and his heirs, in trust for D. and his heirs. What estates do B., C., and D. respectively take?
an estate in tail special.
26. Define a chattel real.
the mortgagor afterwards pays off the mort27. A mortgagee in fee dies intestate, and gage, who are necessary parties to the re
28. A. is possessed of a lease for years, and
dies, having appointed B. his executor. proves the will and dies intestate. By whom may the lease be assigned?
29. 4. purchases copyhold land from B. What acts are necessary for perfecting the title of A.?
of the Judge has to perform before such a decree can be obtained.
48. Also the services of the Taxing Master, and when and how, his services are brought into action.
49. State the changes recently introduced 30. A. makes a voluntary settlement on his in the mode of taking evidence? How were wife and children of land held in fee, and after-witnesses examined before the late Chancery wards conveys to B., who has notice of the Amendment Procedure Act, and how are they settlement, for a valuable consideration. Is now examined.
B.'s title good?
31. What is tenancy by the curtesy of England?
32. What are the requisites to the due execution of a will?
33. 4. holds lands on lease for his life, B. holds land on lease for 99 years, if he so long live. What is the difference of the interests of A. and B. in their respective lands?
34. 4. grants a mortgage of land to B. in fee, and afterwards desires to grant a valid lease of the land to C. for a term of years. Is B. a necessary party to the lease, and if so, why?
IV. EQUITY AND PRACTICE OF THE COURTS.
35. Give some account of the origin of the equitable jurisdiction of the Court of Chancery, and from whom it was borrowed.
36. Why was the writ of subpoena to answer in Chancery at variance with the first principles of the Common Law? In whose reign was it invented, and by whom, and when, was the writ finally abolished?
37. Does Equity really mean what its name implies, or in what respect does it differ?
38. Mention some of the cases in which it interposes a relief when at Common Law no remedy is found.
39. Mention some of the cases in which an agreement is not binding in Equity.
40. How are femes covert favoured by Equity Courts? Can a married woman sue there, and
41. What becomes of her choses in action when she survives her husband?
42. In what cases will Equity enforce her contracts ?
43. Will Equity enforce the contracts of an infant for and against him, and, if so, how is that to be done?
44. What protection do lunatics receive from the same Courts, and how is such lunacy to be established?
45. What is the rule of Equity Courts in the construction of deeds and wills; when there are two clauses absolutely inconsistent with each other, which clause prevails, the first or the last, and is the rule the same in both deeds and wills, and, if different, in what particular?
46. Set forth the several stages of an administration suit down to a final decree, distributing the funds brought into Court to the various classes of persons usually entitled when the assets are more than sufficient to pay debts and legacies.
47. Explain the duties that the Chief Clerk
V. BANKRUPTCY AND PRACTICE OF THE COURTS.
50. What are the chief points of difference between the Bankrupt and Insolvent Debtors" Laws?
51. What are the Courts which exercise jarisdiction in matters of bankruptcy?
52. What is the general definition of a trader within the meaning of the Bankrupt Law? and is there any, and if so what, rule as to the nature and extent of trading requisite to render a man liable to the Bankrupt Law?
53. Is it essential the trading should be carried on in England?
54. What acts constitute acts of bankruptcy per se? What are the acts with which there must be coupled an intention on the part of a trader to defeat or delay creditors?
55. What are the means by which a trader may, unless he pays his creditors, be compelled to commit an act of bankruptcy?
56. What must be the nature of the petition. ing creditor's debt? and in what chief points does it differ from a debt proveable under an adjudication?
57. Does a judgment creditor of a bankrupt have a preference or priority over the other creditors?
58. Suppose a debt sufficient to constitute a petitioning creditor is due to a single woman, but not payable till after her marriage, upon whose petition and deposition would you proceed to make a trader a bankrupt?
59. Is there any property of a bankrupt which does not pass to his assignees by virtue of their appointment?
60. Can an annuity creditor prove for his annuity? and if so, how?
61. Has a landlord any right of distress against the goods of a bankrupt? State the law on the subject.
62. State the modes by which a trader may have his affairs arranged under the power of the Bankrupt Law Consolidation Act, 1849, without his being adjudicated a bankrupt.
63. How are debts payable on contingencies, which have not happened before filing the pe tition, proved under the bankruptcy?
64. If goods consigned to a trader for sale are found on his bankruptcy mixed with his own stock, do they, or not, pass to his assignees, as goods within his order and disposi tion?
VI. CRIMINAL LAW AND PROCEEDINGS BEFORE MAGISTRATES.
65. Which of the Superior Courts at West
Questions at the Examination.-Law of Costs.-Points in Equity Practice.
minster has criminal jurisdiction? and state SECURITY ON PLAINTIFF GOING ABROAD generally the nature of that jurisdiction.
66. By what proceeding can an indictment · found in an inferior Court be removed for trial into the Superior Court?
67. State what constitutes the crime of burglary, and what it is necessary to prove in order to convict one accused of that offence.
68. Is the crime of forgery in any case now punishable with death?
After the defendant had appeared and answered to a bill, in which the plaintiff described himself as of Ellington Terrace, Liverpool Road, in the county of Middlesex, master self as of the ship Wacousta, now on a voyage mariner, the plaintiff amended describing him
69. Under what Act can bankers and others, to Sydney and back to London, master be punished for misapplying property intrusted to them? State shortly the provisions of the Act.
70. Is the compounding of a felony a criminal offence; what is its nature, and how is it punishable?
71. Can an indictment for conspiracy be supported against a husband and wife only?
72. What, if any, protection is afforded to a' married woman who has joined with her husband in committing a felony?
73. Until what age is an infant considered, in law, incapable of committing a felony?
74. Is the evidence of the mother of an illegitimate child held sufficient alone to obtain an affiliation order on the putative father?
75. What is the Statute which inflicts punishment for shooting at, cutting, or wounding, with intent to main, or disfigure, or to do a person some grievous bodily harm, and what is the punishment inflicted?
76. What is the least number of witnesses as to each assignment of perjury necessary to convict on an indictment for that offence?
77. What effect has a conviction for perjury
On a motion that he might give security for costs, the Master of the Rolls said :-"I understand the rule to be this:-that this Court, reasonable security that any order it may make in all cases of this kind, sees whether there is against the plaintiff can be enforced, and does not compel a plaintiff to give security for costs, merely because he goes abroad pending the suit, for he may have no intention of remaining there.
"In this case I find that the plaintiff has no fixed abode in this country, that he has gone abroad out of the jurisdiction, and that there is nothing to show when he will return. The order must be made." Stewart v. Stewart, 20 Beav. 322.
POINTS IN EQUITY PRACTICE.
on the civil position of a person convicted of TITLE OF AFFIDAVIT ON APPOINTING GUARthat crime?
78. Is there any, and what, distinction as to the necessary steps in order to retain a Queen's Counsel, or Counsel with a patent of precedency, for a prisoner or defendant in a criminal prosecution?
79. What effect has a conviction and attain der for felony on the real and personal property
of the convict ?...
LAW OF COSTS.
OF DEFENDANTS NOT FORMALLY SERVED
THE plaintiff being about to bring on a motion, applied to Mr. D., who was the solicitor to some of the defendants resident out of the
jurisdiction, to appear for them; and though not formally served with a notice of motion, a copy was furnished him. Mr. D. at first refused to appear for them, but afterwards expressed his willingness to do so, and the plaintiff's solicitor wrote him a note, stating when the motion would come on.
The motion having been refused with costs, held that these defendants were entitled to their costs. Shaw y. Forrest, 20 Beav. 249.
DIAN TO INFANT IN SPECIAL CASE. Held, that the affidavit as to the fitness of a proposed guardian to concur in a special case, under the 13 & 14 Vict. c. 35, on behalf of an infant, should be entitled not only In the matter of the Infant, but also In the matter of the Act. It is irregular to entitle the affidavit In the special case, inasmuch as at the time when the affidavit is filed, the special case is not on the file, and cannot therefore be considered as in existence. Star v. Newbery, 20 Beav. 14.
ON PLAINTIFF'S MISDESCRIPTION IN BILL.
The plaintiff, in his bill, described himself Law, and of No. 2, Cloisters, Temple, in the as W. A. B., "of Gray's Inn, Barrister-atcity of London." One of the defendants pleaded that such description was false, and Cloisters, Middle Temple, and that the plainthat the plaintiff was not resident at No. 2,
tiff's residence was unknown to him at the time of bill filed and ever since, &c.
The Master of the Rolls, in overruling the plea as bad in form for not negativing a residence at Gray's Inn, said:" I wish particu
Order of Court of Chancery.—Inns of Court Lectures.
larly to guard myself against its being supposed that I have said anything to countenance the doctrine, that such a plea as this can be maintained. It is new to me. I have never, in practice, met with one like it, and it is difficult to reconcile it with the principles and practice of the Court. The ordinary mode of proceeding in such cases is to move for security for costs." Bainbrigge v. Orton, 20 Beav. 28.
TRANSFER OF CAUSES.
WHEREAS, from the present state of business before the Lord Chancellor and Master of the Rolls, respectively, it is deemed expedient that a portion of the Causes set down before the Lord Chancellor to be heard before the Vice-Chancellor Sir William Page Wood, should be transferred to the Master of the Rolls' Book of Causes for hearing. Now I do hereby Order, that the several Causes set forth in the Schedule hereunto subjoined, be accordingly transferred from the Book of Causes of the Vice-Chancellor Sir William Page Wood to that of the Master of the Rolls. And I do hereby Order that all Causes so to be transferred (although the Bills in such Causes may have been marked for the Vice-Chancellor Sir William Page Wood, under the Orders of Court of the 5th May, 1837, and notwithstanding any Orders therein made by the Vice-Chancellor Sir William Page Wood, or his predecessors), shall hereafter be considered and taken as causes originally marked for the Master of the Rolls, and be subject to the same Regulations as all Causes marked for the Master of the Rolls are subject to by the same Orders, Provided nevertheless that no Order made by the Vice-Chancellor Sir William Page Wood, or his predecessors, in any such Causes, shall be varied or reversed otherwise than by the Lord Chancellor or the Lords Justices. And this Order is to be drawn up by the Registrar, and set up in the several Offices of this Court.
April 30, 1856.
Jackson v. Asquith, cause.
Donaldson v. Corner, motion for decree.
Tritton v. Bland, motion for decree.
Bloor v. Bloor, motion for decree.
Gardiner v. Salter, cause.
Gardiner v. Downes, cause.
Spencer v. Topham; Goodricke v. Topham, motion for decree.
Todd v. Beilby, cause.
Hoy v. Smithies, cause.
Chaffers v. Day; Same v. Same, cause.
Paxton v. Bruce, motion for decree.
Woodruff v. Vaughan, motion for decree.
Lloyd v. Solicitors and General Life Assurance Society, cause.
Woodburn v. Grant, motion for decree.
The Manchester, Sheffield, and Lincolnshire
Samuel v. Dunn, cause.
Coxe v. Harding, motion for decree.
Wheatcroft v. South Yorkshire Railway, and
Davey v. Durrant, motion for decree.
Child v. Jones, motion for decree.
Sorsby v. Fowler, motion for decree.
INNS OF COURT.
PROSPECTUS OF THE LECTURES, TRINITY
Constitutional Law and Legal History.
Condition of Religious Parties at the Accession of James the First-Privileges of the House of Commons-Character and Results of Political Struggles during his Reign-Influence of the Church-Attempts to make it Independent of State Control-Conduct of the Judges during the Reigns of the StuartsProgress and History of JurisprudenceReigns of Charles the First and Charles the Second-Causes of the Revolution-Reign and Policy of William the Third.