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Analytical Digest of Cases: Privy Council Appeals.
could be annulled, the purchaser's remedy was by petition to the sovereign for relief restitutio in integrum with committimus to the court.
Upon appeal, held by the judicial committee that as it was a mere question of the mode of giving relief to which it was not denied the purchaser was entitled, it was competent to give such upon petition to the court, and decreed annulment of the execution sale, and return of the purchase money to the purchaser; the rents and profits received by the purchaser while in possession to be set-off against interest on the purchase-money, as well as for money expended on improvements and for the costs. Forte v. Beete and others, 9 Moore, P. C. 336.
How new domicile acquired—Animus revertendi.A testator whose domicilium originis was Ireland, where he inherited considerable estates, abandoned such, and by a long residence in England acquired an English domicile. In the year 1836, he sold his house and furniture and broke up his establishment in England, and went to reside in France, where he bought and furnished a house in which he resided permanently (cohabiting with a French woman) to the period of his death in 1849, with the exception only of occasional visits of short duration to England for purposes of business relating to his estates in Ireland, and his property in the English funds.
Held, under such circumstances, that the testator's domicile was French, and was not affected by his having expressed an intention to return to England in an event which never happened, or of his having on one occasion, when in England, executed a will according to the English form and law, or from the circumstance that the bulk of his property at his death was in the English funds. Anderson v. Laneuville, 9 Moore, P. C. 325.
See Isle of Man.
ISLE OF MAN.
Mortgage - Foreclosure - Quarter lands and intacks.-Exposition of the tenure of quarter lands and intacks in the Isle of Man of the nature of copyhold.
By a statute of the Isle of Man passed in 1835, intituled "An Act to amend the Law relating to Mortgages," so much of the Act of Settlement of 1703-4 as limited the redemption of mortgages to twenty-one years was repealed, and by section 2 it was enacted that if the mortgage was not discharged at the end of twenty-one years from the date of the mortgage, it should be lawful for the mortgagee to sue out judgment, or execution, and cause the mortgaged premises to be sold to satisfy the mortgage, &c.
Held by the Judicial Committee
First-That there could be no foreclosure of a mortgage of copyholds of the tenure of quarter lands, since the passing of that statute.
Second-That possession by the mortgagee of the mortgaged premises for twenty-one years could not
affect the right of redemption of the mortgagor; for as long as the mortgage subsisted it was redeemable by the mortgagor; the remedy left to the mortgagee being the right to sell the mortgaged premises after twenty-one years had elapsed from the date of the mortgage.
In 1817 A. mortgaged copyhold lands, of the nature of quarter lands, to B., who afterwards, in 1820, entered into possession. In 1824 the mortgage under an order of the Court of Chancery in the money not having been paid the lands were sold island, and B. became the purchaser. In 1852 A.'s representative filed a bill for redemption of the mortgage premises, which had been in possession of B. or those claiming under him since 1820, and for an account. The defence was-first, a denial of the plaintiff's title; and second, that the remedy was barred by the possession of the mortgagee for twentyone years without accounting. The Court of Chancery in the island rejected this defence, and decreed redemption and account. Upon appeal, such decree affirmed.
Christian v. Goldie (2 Moore's P. C. cases, 226) observed upon.-Birnie v. Caystile, 9 Moore, P. C. 303, 304.
See Marriage settlement.
Three Orders of the Queen in Council, addressed to Originating laws for-Prerogative of the Crown.— the Lieutenant Governor of the island of Jersey, and directed by the Secretary of State for the Home Department to be registered in the island, to give them the force of law-upon petitions of the states of Jersey, and by numerous inhabitants of the island, recalled; and certain acts passed by the states of Jersey, and proposed to be substituted for the Orders in
Majesty's Privy Council, confirmed.
Whether the Crown, by force of the prerogative, can, by Orders in Council, without the concurrence of the states of Jersey, originate laws for Jersey, or, whether an exclusive right of originating all laws for that island resides alone in the states. Quare. In re the States of Jersey, 9 Moore, P. C. 185.
Pursuant to bond-Mortgage-Cattle and stockJamaica.-A., by bond, in consideration and contemplation of marriage, bound himself in a certain sum, for the purposes of his intended marriage settlement, to mortgage certain estates "and properties, and the lands thereto belonging, and their respective appurtenances," in the island of Jamaica, of which he was seised in fee, and to raise a certain sum by way of settlement. By a mortgage by way of settlement, in pursuance of such bond, A. mortgaged, inter alia, the said estates, and penns, and appurtenances, and "all and every the cattle, stock, and plantation implements."
Held (reversing the decree of the Court of Chan
Analytical Digest of Cases: Privy Council Appeals.
cery in Jamaica), that cattle and stock upou the estate and penns were not included in the bond, and that, though the mortgage deed, made in pursuance of such bond, was by way of marriage settlement, yet it could not enlarge the provisions of the bond.
Cattle and stock upon a plantation or penn, in Jamaica, are, by the law of the island, personal estate, and not affixed to the freehold.
The cases of Lushington v. Sewell (1 Sim. 435) and Stewart v. Garnett (1 Sim. 398), observed upon, and distinguished as relating to devises by will.Turner v. Barclay, 9 Moore, P. C. 264.
Damage by sinking a barge-Licensed pilot-Negligence-Excessive speed-Owner's liability-City byelaws.-Damage by sinking a barge by a steamer causing a swell in the river Thames.
A large steamer in the charge of a licensed pilot, in proceeding up the Pool at nearly high tide, and at a speed dangerous to small craft, caused such a swell that a barge laden with coals was sunk.
Upon appeal, held (affirming the decree of the Admiralty Court)—
First, that upon the evidence, no blame or negligence was attributable to the barge.
Second, that the steamer was to blame, as the swell which sunk the barge was attributable to the speed at which she was going.
Third, that the steamer was to blame: (1) in not having kept a good look-out, as she might, and ought, to have seen the swell and the barge in time to have avoided the accident; and (2) that the pilot was solely to blame in not checking the speed or stopping the steamer.
Fourth, that as there was joint blame in the master and crew and the pilot, the owners were not exempted from liability for damage by the statute 6 Geo. 4, c. 125, s. 55, by reason of having a licensed pilot on board.
Quare, Whether the rules and bye-laws passed by the Corporation of the City of London on the 29th of September, 1845, regulating the speed of vessels,
are good by the local act 7 & 8 Geo. 4, c. 75.-The Netherlands Steamboat Co. v. Styles (the Batavier), 9 Moore, P. C. 286, 287.
SUDDER COURT, INDIA.
See Appeal, 1.
Revocation-Subsequent will forthcoming-Jurisdiction of Judicial Committee.-A testator executed a will in 1825, which was found uncancelled at his death, which event took place in 1853. In 1852, he executed another testamentary paper, the contents of which were wholly unknown, except the circumstance of the paper commencing with the words, "This is the last will and testament." This latter instrument was not forthcoming at his death, but there was no evidence of its destruction. The Prerogative Court held that the instrument executed in 1852 was not to be considered as a codicil, but as a substantive will, which operated as a revocation of the prior will of 1825, and that under the Statute of Wills, 1 Vict. c. 26, s. 22, the deceased must be considered to have died intestate, as the former will was not revived by the destruction of the latter.
Upon Appeal; Held by the Judicial Committee (reversing such sentence and decreeing probate to the will of 1825)
First-That the onus probandi lies upon the party setting up the subsequent instrument as a revocation of the former will.
Second-That to establish a revocation of a former will relating to personalty, by a subsesequent testamentary paper not forthcoming, by parol evidence of execution only in the absence of any draft or instructions for such instrument, such evidence must be strong and conclusive as to its contents.
Third-That the mere fact of such an instrument commencing with the words "This is my last will and testament" does not render it a revocatory instrument; as those words do not necessarily import that such instrument contained a different disposition of the property: and that to make it operate as a revocation of a former will, it must be proved that
the contents of the latter instrument were different from the former.
Fourth-That a subsequent will (the contents of which were unknown) having remained in the custody of the deceased and not forthcoming, the presumption of law was, that it was destroyed by him animo revocandi and did not revoke a prior will uncancelled.
Observations on the report of the case of Moore v. Moore, 1 Phill. 375, 406.
Subsequent to the Order in Council made upon the appeal reversing the sentence of the Prerogative Court a will dated March, 1851, was discovered, and application was made to the Judicial Committee for probate. Such application refused, as the original suit being concluded the jurisdiction of the Judicial Committee was exhausted; but the Committee intimated that if a petition was presented to her Majesty to refer the matter specially to them they would entertain the application.
Upon such petition being presented and referred the Committee revoked the probate of the will of 1825, and granted probate of the will of 1851. Cutton v. Gilbert, 9 Moore, P. C. 131.
Cascs cited in the judgment: Helyar v. Helyar, 1 Lee, 511; Moore v. Moore, 1 Phil. 375; Passey v Hemming, Phill 439; Plenty v. West, 1 Robert. 264; Henfrey v. Henfrey, 2 Curt. 468; 4 Moore, P. C. 29; Stoddart v. Grant, 1 Macq. 171.
The Legal Observer,
SATURDAY, DECEMBER 20, 1856.
THE SOLICITORS' JOURNAL AND
RIVAL PERIODICALS, REPORTERS, AND
WE apprehend it is far too late in the march of free-trade to re-establish any kind of monopoly, or to oppose the most free competition, whether in law reporting, or authorship, or in the publication of legal periodicals or serials. It is not long ago since there were rival reporters in all the common law courts, and in some of the equity. There has also been a superabundant rivalry amongst professional authors, even on the self-same subjects, so as to perplex both the practitioner and the student in the choice he should make for the shelves of his library. The ground taken by men of the greatest eminence in the most important branches of the law has been ambitiously invaded by their juniors, and sometimes with success.
It may be deemed great presumption to enter a well-occupied field, but we never heard of an appeal from the previous writers addressed to the profession calling upon them to resist the invaders! What would be said, on the appearance of an improved edition of Blackstone's Commentaries by a new editor, if the previous editors were to send circulars to every lawyer remonstrating against the interloper?
Our learned contemporary the Law Times, however, appears to entertain a different opinion. Having thirteen years ago, at a time when there were three weekly law publications existing, succeeded in establishing a fourth, he conceives that he has acquired a strong hold upon professional gratitude, and ought not to be disturbed in his career. He cannot tolerate the retirement of one of the
three previous works, and the substitution of another. How far is this claim to a species of vested interest to be carried? May we conjecture a restraint upon the number of members called within the bar? Whilst so many able men are not fully employed, why should the Lord Chancellor bestow silk gowns on so many of the outer bar? Against this unkindness there has hitherto been no remonstrance; but if the recent practice be adopted, we may VOL. LII. No. 1,502.
expect that free competition will hereafter be restrained at the bar as well as in the walks of legal literature.
It is rather remarkable that the Law Times should shift its ground from its first outburst on the 6th to another position on the 13th instant. At first it assumed that the SOLICITORS' JOURNAL was established because the Law Times advocated the interest of the whole profession, and the solicitors as a part, whilst the new journal would support the second branch of the profession only, and separate" it from the general body. We infer that this ground was untenable, and now our contemporary asserts a new and startling reason, but which is altogether untrue. It affirms that the proposed new journal originates with "Six Agency Houses," and that their object is to concentrate legal business in the metropolis for their own personal advantage. This is, in fact, renewing, in a most offensive form, the imputation so often cast by the Law Times upon the London solicitors for selfishly attending to their own interests in opposition to their brethren in the country. In order that there may be no mistake in stating this additional ground of complaint against the Law Times, and which would alone justify the commencement of a new work, we shall quote from several of the last week's pages of the Law Times the objectionable passages which are there reiterated:
"We present to-day the first supplement containing the response of the profession to the attack made upon the Law Times by the six agency houses."
"Let us assure the half-dozen agency houses who are trying to get rid of the Law Times, and to substitute a journal under their own control, to maintain their own interest, that the Law Times has not opposed or supported any measures from a desire to injure their interests."
"Let us tell the agency houses that have made this attempt to deprive the rest of the solicitors of their independent advocate and organ, that we have been importuned to carry out against them the self-same endeavour which they are now making against us, and by the same means. At this moment there would have been existing a limited liability company of the country solicitors for the purpose of conducting their own agency business in London, if the Law Times had consented to give it encouragement and assistance."
"The Prospectus of a Limited Liability Joint Stock
The Solicitors' Journal and Reporter.
Company formed by members of a few of the London agency houses, for the purpose of establishing a journal in opposition to the Law Times for obvious personal purposes, but on the pretended plea that it
ago-he could have reasonably objected to our embarking a few thousand pounds for the purpose of enlisting new contributors of has not done its duty to the solicitors and suported learning and accuracy, in order to "turn the eminent literary talent, and reporters of great
their interests." &c.
A few words will put these statements of the Law Times out of court.
The Prospectus, which will be found in a subsequent page, will show that instead of the SOLICITORS' JOURNAL having originated with "Six Agency Houses," there are sixteen directors, comprising nine town and seven country solicitors of the first eminence; and that of the nine town directors there are only three belonging to Agency Houses. The London directors (except one) are members either of the council of the Incorporated Law Society or of the managing committee of the Metropolitan and Provincial Law Association. The names of the Provincial Directors, also, carry with them a recommendation that will ensure the success of the undertaking.*
Then, we would ask, to what end has the appeal been made to the subscribers of the Law Times? The establishment of the new journal cannot be prevented. Supposing the whole of the present subscribers of the Law Times should continue, there are sufficient left of the 10,000 solicitors in England to support the SOLICITORS' JOURNAL, besides other channels of circulation which may fairly be reckoned upon. We observe that about 700 provincial solicitors, out of 7,000, and 80 metropolitan solicitors, out of 3,000, have sent in their adhesion to the Law Times; but we understand that the larger part of these respondents had not seen the Prospectus of the SOLICITORS' JOURNAL, and were not aware under what patronage it was coming forth.
The Law Times, however, appears to rest its claim upon a kind of title said to be gained by thirteen years' useful labour. Is it too presumptuous on the part of the LEGAL OBSERVER to say that its editor and contributors had for the like number of years prior to the existence of the Law Times laboured anxiously in the same cause, and yet the projectors of the Law Times felt no compunction in using their exertions to rival or displace a journal well known as the organ of the attorneys, and which was established by themselves.
We announced some time ago that we contemplated a new and enlarged series of "THE LEGAL OBSERVER AND SOLICITORS' JOURNAL," with several additions and improvements, now projected in the journal which the Law Times denounces as an encroachment on its domain. May we venture to ask our learned contemporary whether having "stolen a march on us "thirteen years
All the shares forming the capital of the Company have been taken by solicitors whose influeuce is deemed very valuable.
tables" upon our old rival.
Well, then, if the proprietor and editor of the LEGAL OBSERVER might start a new and improved series, why should they not (instead of increasing their labour and advancing their capital) give place to a numerous body of their professional friends and brethren, who have formed a large joint stock fund for the purpose of accomplishing what would be difficult in the hands of a few individuals, but easy of attainment by a numerous association. Moreover, this very project of uniting a large body of solicitors practising in various parts of the empire has been contemplated for years, but could only be effectually brought to bear under the “Limited Liability Act," to which act our contemporary has had an instinctive aversion, though perhaps he did not actually foresee that the provisions of the statute will be highly beneficial both to the public and the profession.
Law Times had always ably and consistently Supposing, however, that the editor of the rendered the services which he states, he surely has no general retainer from the solicitors. He did not, like the Legal Observer, commence the work at the request of leading solicitors or any known body of the profession. The project of the Law Times was an individual speculation by a gentleman just then called or about to be called to the bar. He did not devote himself exclusively claims, indeed, to be the patron of the whole to the special advocacy of the solicitors. He profession in all its ranks. Nor was he content with the success of his exertions in estabvarious other legal and literary speculations, lishing the Law Times. He embarked in almost too numerous to mention, of which an account was given a few years ago in some of the periodical publications.*
There can, of course, be no objection to the pursuit of these multifarious objects, which are no doubt found to be very profitable; yet it may be conjectured that no amount of industry or talent can be equal to all the exigencies of these various and important speculations; and we cannot wonder, therefore, that the solicitors should desire to have an editor of their own, mainly at least, if not exclusively, devoted to their cause. It cannot be deemed unreasonable that they should prefer selecting their own writers to state their views through the medium of the press
Amongst them were the Verulam publications; various Treatises; the Critic, a family literary journal; and a large Collection of Forms of Proceedings for the execution of all kinds of Acts of Parliament. To which were added an Executorship and Trustee Company, and other joint-stock projects.
The Law Newspaper Company Limited.
-writers who are not engaged in such extensive speculations.
Further, it may be proper for the solicitors to consider that the editor of the Law Times, as a barrister, will naturally support his "own order," and when the interests of the two branches conflict that he will favour his own brethren. Indeed, the argument urged last week in favour of the Law Times was that it maintained that the interest of the attorneys consisted not in taking an independent position of their own, but that they should follow in the wake of the higher grade to which the editor of the Law Times belongs. Be this as it may, it is evident that a large and influen tial number of solicitors are of opinion that they are not truly or sufficiently represented in the Law Times-that the writers in that journal are imperfectly acquainted with what the attorneys consider their true interests, and do not properly or consistently support their objects.
On the whole, it is palpable that there can be no possible claim to call on the attorneys and solicitors, either in town or country, to send in their adhesion to the Law Times in preference to the SOLICITORS' JOURNAL. Time will show which of the two works is the better suited to supply the wants, and entitled to the support, of that branch of the profession for which the SOLICITORS' JOURNAL is principally intended.
We have to add, that in truth the SOLICITORS' JOURNAL, in its new form, originated at Birmingham during the meetings of the Metropolitan and Provincial Law Association which took place there in the month of October, 1855; and the plan was matured at Liverpool in October last. So much for the assertion that the work has originated with a few London Agency Houses, and for the purpose of promoting their personal interests.
THE LAW NEWSPAPER COMPANY
THE object of this Company is to publish a New Weekly Journal, to be called the "SoLICITORS' JOURNAL AND REPORTER," which will be especially devoted to the interests of Solicitors.
It has long been a subject of regret to leading Solicitors throughout the kingdom that their branch of the Profession has never been adequately represented by any organ of the press. The only journal, at the present time, which distinctively represents the Solicitors of the United Kingdom is the LEGAL OBSERVER, a periodical which has always maintained a high character, and besides being of considerable value in other respects, has accurately communicated to the Profession many of the
| proceedings of the Incorporated Law Society: Several circumstances, however, which will not affect the new publication, have prevented the LEGAL OBSERVER from occupying the position which ought to be held by the organ of the Solicitors of England and Wales, and have tended to restrict its circulation, particularly in the provinces.
The introduction of the principle of Limited Liability into the Law of Joint Stock Companies will enable the Directors to carry out the present undertaking without any indefinite risk being incurred by those who engage in it.
The Directors of the present Company have arranged to purchase the copyright of the LEGAL OBSERVER; and it will be their object to establish a new paper of a size increased sufficiently to meet the wants of the Profession: while they are supported by adequate capital and a widely-extended list of Shareholders, so as to secure at once a remu
The SOLICITORS' JOURNAL will contain a well-digested summary of the legal news of the week; and will devote some portion of its space to literary articles, reviews, and notices of new books, and the proceedings of some of the principal societies connected with science and literature; but will carefully avoid party politics and theology.
The SOLICITORS' JOURNAL will be independent of both the Incorporated Law Society and the Metropolitan and Provincial Law Association; but will support them, as well as the various Provincial Law Societies, in their exertions for the improvement of the position of Solicitors, and the protection of their professional rights, and will report their proceedings.
It has been considered essential to present the Subscribers with a good series of reports adapted for practical use. The difficulties which would otherwise have attended the attainment of this object have been happily met by an arrangement made by the Directors with the Proprietors of the Weekly Reporter, by which the current number of that publication will form a portion of the weekly issue of the new paper. The Weekly Reporter will continue its own independent sale, and its Proprietors, Editors, and Reporters will not be responsible for the contents of the SOLICITORS' JOURNAL.
The Weekly Reporter gives, with regularity, concise and satisfactory reports of cases both in Law and Equity up to the Wednesday in each week in which it is published. This is a feature not possessed by any other series of reports, and is one of peculiar value to Solicitors, to whom it is of the first importance to be informed of new points as soon as decided. Each volume also contains a digest of all the cases reported during the year in all recognised series of Reports.
The Weekly Reporter has been published for four years. It has obtained an established