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DECREE.

TEMPT.-RETURN.

110

Superior Courts : V C. Stuart-Queen's Bench. and the interest be paid to the plaintiff for life the first mortgagee, whose decree it was, conto her separate use, with liberty to the parties cured in the present petition. A decree for a interested to apply on her decease.

sale would therefore be made-a sum of 1,0001.

to be paid into Court by way of security for Vice-Chancellor Stuart.

the debt and costs of Mr. Jones. Laslett v. Cliffe. June 6, 1854.

Court of Quren's Bench. EQUITY JURISDICTION IMPROVEMENT ACT.

Regina (exparte Coates) v. Vivian. June 3, -DECREE FOR SALE AFTER FOROCLOSURE

1854.

HABEAS CORPUS.-ATTACHMENT FOR CONIn a foreclosure suit by a first mortgagee, a

decree wus made for a foreclosure, but without the mortgagor's consent. On the

A habeas corpus had issued against a school

master, who detained a boy until the expetition of the mortgagor, and with the concurrence of the first mortgagee, a sale

penses of his and his brother's maintenance was directed under the 15 & 16 Vict. c. 36,

were paid. The boy was then sent to Lon$. 48, upon payment into Court of a sum of

don under the special care of the railway

guard to the mother : A motion to make money by way of security for the debt and costs of the purchaser of the subsequent

absolute a rule for an attachment was reincumbrances.

fused for contemptthe affidavit to be

used on the return. This was a petition, on behalf of the mort

Ir appeared that a habeas corpus had been gagor, for the sale of certain real estates, under the 15 & 16 Vict. c. 86, s. 48,' and for pay- granted in this case to bring up the body of a ment of the amount due to the plaintiff in this boy at school, who was detained there by the

defendant upon the ground that the expenses suit, and in which a decree for a foreclosure had been made in June, 1853. It appeared of his and his brother's education had not been that the plaintiff was first mortgagee, and con

paid. The boy had been since sent up to Lonsented to a sale

, and that the

subsequent in- don by railway, under the special care of the cumbrances had been purchased since the de- guard, and addressed to his mother. This

motion was therefore made to make absolute a cree by a Mr. Jones. Malins and Hallett for the mortgagor in rule for an attachment for the contempt.

Huddleston in support. support; Bacon and G. Lake Russell for Mr. Jones, contrà, cited Girdlestone v. Lavender, 9

The Court said, that the application must be

refused,--the affidavit to be used on the return Hare, liji. ; Wayn v. Lewis, 22 Law J., N. S.,

to the habeas corpus. Chanc, 1051.

The Vice-Chancellor said, the question was, whether the Court had power to direct a sale

Regina v. Day. June 3, 1854. after a decree for foreclosure. In the cases CORONER, ELECTION OF.-RIGHT TO VOTE cited the decision was only that in the particu

EQUITABLE ESTATE. lar instances a sale was refused. It appeared that the foreclosure decree had been made ex. A coroner had been elected after a poll by a

majority of votes, which arose from the 1 Which enacts, that "it shall be lawful for votes of certain parties claiming a freehold the Court, in any suit for the foreclosure of the by reason of the right of pasture over the equity of redemption in any mortgaged pro

waste land: Held, on special case, that perty, upon the request of the mortgagee, or of under the 7 d. 8 Vict. c. 92, s. 9, repealing any subsequent incumbrancer, or of the mort- the 58 Geo. 3, c. 95, the right to vote was gagor or any person claiming under them re- to be according to the right to vote for spectively, to direct a sale of such property in

knights of the shire, which must be a legal stead of a foreclosure of such equity of redemp

estate,and on a quo warranto judgment was tion, on such terms as the Court may think fit to given for the Crown. direct, and if the Court shall so think fit, without This was a rule nisi for a quo warranto on previously determining the priorities of incum- the coroner of the district of Hemel Hempbrances, or giving the usual or any time to re- stead, Hertfordshire, to which office he had deem ; provided that if such request shall be been elected in June, 1852, upon a majority of made by any such subsequent incumbrancer, votes of certain persons exercising a right of or by the mortgagor, or by any person claim- pasturage over lands at Boxmoor, which had ing under them respectively, the Court shall been purchased in the reign of Queen Elizabeth not direct any such sale without the consent of for the benefit of the inhabitants of the district. the mortgagee or the persons claiming under By the local Act passed in the 49 Geo. 3, the him, unless the party making such request land was vested in trustees for the use of the shall deposit in Court a reasonable sum of inbabitants. money, to be fixed by the Court, for the pur- By the 7 & 8 Vict. c, 92, s. 9 (which repealed pose of securing the performance of such the 58 Geo. 3, c. 95), it is enacted that every terms as the Court may ihink fit to impose on person to be so elected shall be chosen by a the party making such request."

majority of such persons residing within suclı pressly without the mortgagor's consent, and district as shall at the time of such election be

IN RESPECT OF
QUO WARRANTO.

USE AND OCCUPATION. --PROVISO IN LEASE

AS TO TIME FOR COMMENCEMENT OF

Superior Courts: Queen's Bench.—Common Pleas.

111. duly qualified to vote at the elections of coro: mainders, and then followed a general proviso ners for the said county;" and s. 13 required that in case of the death of both of the sons the voter to swear he was a freeholder of the without leaving lawful issue, then the estates county. The facts now came on in the form should go to the testator's daughter, the plainof a special case.

tiff's wife. It appeared that both the sons T. Campbell Foster for the relator; Bram- died without issue, and the defendants claimed well and Lash for the defendant.

under a devise from the survivor. The Court said, that the 7 & 8 Vict. c. 92, H. Hill and Cowling for the plaintiff ; re-established the common law, and that the Channell, S. L., and Mellish, for the defend right to vote was to be according to the right ants. to vote for knights of the shire, which must be The Court said, that the sons took an estate a legal estate, and not, as was the case here, a tail, and that judgment must be for the demerely equitable interest, and there must be fendants. judgment for the Crown.

Barnard v. Denney. June 3, 4, 1854. Court af Commou Pleas.

LORD CAMPBELL'S ACT.-ACTION FOR COM-
Smith v. Eldridge, June 3, 1854.

PENSATION ON DEATH. -MISDIRECTION.
The defendant had left his horse and cart in

the care of a boy who stood on the causeRENT.

way about three feet above the road, and By the terms of a lease for seven years which

who was therefore unable to hold the horse had been executed, the rent was not to com

which ran away and came into collision

with the chaise of the deceased, who was mence until certain alterations and repairs were completed, but the defendant occupied

thereby killed : Held, that the question of

carelessness on the part of the boy was proalthough they were not so completed : Held, that he was liable in an action to recover a

perly left to the jury, and a motion was reasonable sum for use and occupation.

refused for a new trial of an action to reTars was a motion, pursuant to leave re

cover compensation under Lord Campbell's

Act, on a verdict for the plaintiff. served, for a rule nisi to enter a nonsuit in this action for the use and occupation of a house.

This was a motion for a new trial of this It appeared that by the terms of the lease for action to recover compensation under Lord seven years which had been executed, the rent Campbell's Act (9 & 10 Vict. c. 93), on the was not to commence until certain alterations death of the deceased by reason of the defendand repairs were completed, and that the de-ant's horse running away with his cart and fendant bad entered and occupied the premises, coming into collision with the deceased's chaise. but had left in consequence of the alterations, It appeared on the trial before Williams, J., &e., not having been done. On the trial be that the defendant had left the horse and cart fore Williams J., the plaintiff obtained a ver

in the care of a boy who stood on the causedict.

way

about three feet above the road, and that Kerr in support.

the boy could not hold the horse, and the quesThe Court said that the plaintiff was not tion of carelessness on the part of the boy was preciuded by the agreement from recovering a

left to the jury, who found for the plaintiff. reasonable sum in respect of the occupation

Byles, S.L., in support, ou the ground of which the defendant had chosen to have, al- misdirection and that the verdict was against though the alterations were not made, and the

evidence. rule would be refused.

The Court said, that the rule must be re

fused. Bamford v. Chadwick. June 3, 1854.

Wilkin y. Reed, June 4, 1854. WILL.-CONSTRUCTION.-DEVISE. — ESTATE

ACTION FOR DAMAGES ON MISAPPROPRIATAIL.

TION BY CLERK.-CHARACTER.-AMENDAn estate was devised to the testator's son

MENT OF DECLARATION, and his heirs for ever with a gift over on the death of such son without leaving issue.

In an action by the plaintiff to recover daAnother estate was devised similarly to

mages for the misappropriation of money another son, with cross remainders, and

by a clerk, in reference to whose character with a general proviso that in case of the

the plaintif had applied to the defendant. death of both without leuving issue, the es

the declaration alleged that the defendant tates should go to the testator's daughter :

had concealed the fuct of the clerk haring Held, on special case, that the sons took an

been dismissed for acting dishonestly, and estate tail, and that the defendants, who

represented that the principal reason was were devisees of the survivor, were entitled.

the coming into operation of the Common

Law Procedure Act. The evidence showed The testator by his will devised an estate to his son and his heirs for ever, with a gift over

that a misappropriation of money had been

condoned, and that the excuse for dismissal on his death, if such son died without leaving

was as mentioned, and the judge refused lawful issue, and there was a siinilar devise to

to amend the declaration by stating the another son of a second estate, with cross-re- clerk to have been guilty of dishonesty: On

112'

Superior Courts : Common Pleas.-Crown Cases Reserved. verdict for defendant, held that the amend- property, yet if she commit adultery, and ment was rightly refused.

then steal the goods with the adulterer, he This was a rule nisi to set aside the verdict is guilty of felony, as she then determined for the defendant, and for a new trial of this her quality of wife, and was no longer reaction. It appeared on the trial before Maule,

cognised as having any property in the J., that the plaintiff had applied to the defen

goods. dant in reference to the character of a clerk This was an indictment against the prisoner and that the defendant was alleged in the de- for stealing 22 sovereigns from the prosecutor, claration in this action to recover damages for whose wife, it appeared, had taken them from the misappropriation of money, to have con- his bedroom without authority, and given them cealed from the plaintiff the fact of the clerk's to the prisoner, upon whose person they were dismissal for acting dishonestly, and represent- found. On the trial, before Talfourd, J., the ed that the principal reason was the alteration prisoner was found guilty, but judgment was of the business consequent on the passing of respited, for the opinion of the Court to be the Common Law Procedure Act. It appeared taken whether the delivery of the husband's that although the clerk had misappropriated a goods by the wife to the prisoner with the small sum of money the offence had been over- knowledge by him that she took them without looked, and that the dismissal was for the her husband's authority, was sufficient to supreason stated. It was therefore proposed to port the conviction. amend the declaration by stating the clerk No counsel appeared. had been guilty of dishonesty, but the amend- The Court said, the general rule was that the ment was refused.

wife could not be found guilty of larceny for Watson and Lush showed cause against the stealing her husband's goods. But if she took rule, which was supported by Crouch. away and converted to her own use bis goods,

The Court said that the amendment was it was no larceny, since they were one person. rightly refused, and the rule was accordingly This was, however, subject to the qualification discharged.

that if she committed adultery, and then stole

the goods with the adulterer, she then deterCrown Cases Reserved.

mined her quality of wife, and was no longer Regina v. Pratt. June 3, 1854.

recognised as having any property in the goods,

and the prisoner assisting her in stealing them INDICTMENT for STEALING AGAINST DEBT- was guilty of felony: Dalton, c. 157. The con

OR ASSIGNING FOR BENEFIT OF CREDI- viction would therefore be affirmed.
TORS.-CONTINUING POSSESSIOX.
The owner of certain laths had assigned all Regina v. Larkin June 3, 1854.

his property to trustees for the benefit of INDICTMENT. — AMENDMENT AFTER ver-
his creditors, but he remained in possession.
On an indictment for stealing such laths, In an indictment for stealing goods, the pro-
the jury found that the prisoner had re-
moved them after the execution of the deed

perty of A. B., the second count charged and with intent to defraud the parties bene

the receipt of the properly knowing it to be

stolen, but by mistake the prosecutor's name, ficially interested, and not as agent for the trustees. The conviction was quashed on

instead of the prisoner's, was used: Held, the objection that the possession of the

quashing a conviction, that the quarter ses

sions could not amend after verdict by subproperty had never been changed.

stituting the prisoner's for the prosecutor's Ir appeared that the prisoner had been the

name, but that a fresh indictment against owner of certain laths and bad assigned all his the prisoner might be preferred. property to trustees for the benefit of his cre

In this indictment for stealing a quantity of ditors, but remained in possession and carried beef, the property of Abraham Brooksbank, on the business for the trustees. The jury had the prisoner had been found guilty on the found, on an indictment for stealing laths by re- second count for receiving the property, knowmoving them, that he had removed them after ing it to be stolen, and on the prisoner's coun; the execution of the deed, and with intent to sel moving in arrest of judgment on the ground defraud the parties beneficially interested, and of the mistake in inserting the prosecutor's name not as agent for the trustees. The prisoner in such count instead of the prisoner's, the was convicted. Bittleston for the prisoner on the ground the

Court of quarter sessions amended the indict

ment. possession of the property had never changed; W. J. Willis for the prosecution.

Heaton for the prisoner ; Tlule for the prose

cution. The Court said, the conviction must be quashed.

The Court said, that the motion in arrest of

judgment was right, as there could be no Regina v. Featherstone. June 3, 1854.

amendment after verdict, and the indictment

was bad on the face of it, for not stating that CONVICTION OF PARTY ASSISTING WIFE TO the prisoner received the property knowing it

STEAL FROM HUSBAND.--LARCENY. to be stolen. The conviction would be quashed, Held, that although a wife cannot be found but a fresh indictment must be preferred.

guilty of larceny for stealing her husband's

DICT.-NEW INDICTMENT.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JUNE 17, 1854.

PROFESSIONAL OPPOSITION TO the exertions of the Incorporated Law BILLS IN PARLIAMENT. Society in opposing the Bill in the Upper

House ; but the learned writer, like Cicero,

is never pleased with what other men JOINT-STOCK TRUST COMPANIES. do, and therefore condemns the arguIt was lately suggested by one of the ments which the Counsel of the Society active Law Societies in the Country, that, urged before the Lords’ Select Committee. in order to oppose any measure in Parlia-" He urged every argument that ingenuity ment which in its consequences might in- could devise-except the true one,” nainely jure the Profession, the best course for the —"that the scheme contemplated a great practitioners would be to petition in its injury to themselves ;” (the lawyers)“ it favour! The Law Reformers would then tended to make a monopoly of a considermake a great outcry against it,-asserting, able part of the business of the Profession.”2 as they ignorantly do, that whatever injures The editor, it seems, would have conducted the Profession, must benefit the Public. the case much better than Mr. Selwyn. He This sarcastic recommendation was perhaps would valiantly have avowed his personal induced by the attack made on the Attor- motives, and eschewed altogether the strong neys by the Honourable Mr. Bouverie when public grounds on which the project was the South Sea Company's Trust Bill was impeached. discussed in the House of Commons.1 Now, consider for a moment the import“The fact ” he said) “of the Bill being ant points urged against the Bill, which opposed by the attorneys was the strongest may be thus concisely stated :argument in its favour. The two geat evils 1st. That the Bill proposed to establish the of the country were taxes and attorneys. legality of trading in Trusts, and making a profit What an attorney was, coald not exactly out of that trade. 2nd. To establish the prirBourerie) that he was a professional gentle- 3rd. To sanction an unlimited capacity in a be defined; but it appeared to him (Mr. ciple of limited liability of trustees, and to ah

solve them from all personal responsibility. man who charged 138. 4d. for doing something, and 68. 8d. for doing nothing.” amount. 4th. To contradict a principle delibe

corporation to hold and manage land to any This illiberal misrepresentation of the cha- rately decided by the Legislature, that charity racter and motives of attorneys and solici- estates in trust should not be continued in the tors came with a bad grace from the brother hands of corporations, but transferred to indiof one of the governors of the South Sea vidual trustees. 5th. That if the evils suyCompany ; but notwithstanding the able gested did in fact exist, this measure was not remonstrances of Mr, Malins, Mr. Follett, calculated to remedy them. 6th. Even if this and Mr. Mullings, the opposition was over- would introduce new and additional evils of

Bill could remedy all or any of these evils, it ruled and the Bill passed the House of much greater magnitude. And finally, that the Commons with a very insufficient modifica measure, involving such principles, ought not tion of some of its clauses.

to be introduced by a private Bill, but if ParOne of our weekly contemporaries re- liament thought fit to alter the established law joices at the success which has attended of the country, it should be done after due

deliberation and as a public measure. · See L. 0. April 15.

? Law l'imes, June 10. VOL. XLVIII. No. 1,371.

H

114

Professional Opposition to Bills in Parliament. Having these cogent objections to the others as executors and trustees, is peBill, it would have been insanity to abandon culiarly offensive and unjust. Amongst the them and depend on the argument against 10,000 members of the Profession, how exgranting a monopoly to the South Sea ceedingly rare are the instances of defalcaCompany, its solicitors and officers. The tion? When Mr. George Gregory, one of objections, indeed, are not confined to this the witnesses, was questioned as to his one company, but to all joint-stock com- knowledge of the failure of some of his panies; and if the Bill had passed and suc- brethren, he truly and emphatically said, cess had followed, there would soon have been " I think I am bound to say of my own a host of them. A second company was al- Profession, and I am glad that I have an ready in the field, which, in order, as they opportunity of saying it, that I think you supposed to conciliate the Profession, held will find less instances of breach of trust out the promise that solicitors, who were and confidence in that Profession, than you shareholders in the company, should be will find in any other body of men of the eligible to participate in the extensive law same and of similar responsibility.” Mr. business which would arise out of the ad. Selwyn also eloquently repelled the imputaministration of trusts or the office of exe- tion of interested motives attempted to be cutors!

fastened on the Law Society. 3 Our opinion is, that the Profession should When we consider the temptations to not shrink from an appeal to the Legisla- which professional men are exposed, and ture, whenever they have public grounds to the opportunity they have of concealing their state or the interest of their clients to advo- misdeeds, it is eminently to their credit that cate, and that they should not be deterred so few cases of misconduct arise. We may, by the imputations which may be cast upon however, admit that the public has a right them of seeking to promote their own in- to expect at their hands undeviating inteterests. They may justly maintain that grity. The fullest confidence is reposed in the real interests of the Public and the them. They are taught highly to appreciProfession are identical ; and that the due ate the honourable nature of their profesadministration of justice cannot be secured sional duty; they act under the watchful without a competent and respectable body eyes of their brethren, the scrutiny of the of practitioners; but it would be in vain to Bar, and the supervision of our venerated rest the objection to an alteration in the Judges. Habits thus formed are great Law on the ground alone of professional helps in the hour of temptation, and the interests.

warm esteem and approval which a life of As an instance of this course of proceed- integrity is sure to gain, may well operate ing, we may refer to the stand made by the in sustaining them in their honourable Law Society, supported by their brethren course. We claim for them no exemption in the country, on the Stamp Duties' Bill from human infirmity, but we maintain of 1850. The alterations which were ef- that they faithfully discharge their duties, fected in the scale of duties were peculiarly and that it is altogether unnecessary, and beneficial to the Solicitors, by the increased would be unjust and impolitic to supersede number of leases and conveyances which them by official executors and trustees, were called for, but the amendment of the even if the diligence and responsibility of scale was effected for the good of the com- such officers were guarateed by the governmunity, and the result was, that whilst it ment. relieved thousands from the previously oppressive burden of large stamp duties, the We trust we shall hear no more of these revenue suffered comparatively little, be- joint-stock projects, -of governors, sub and cause of the vast increase in the number of deputy-governors, directors, executive countransactions.

cils, or wholesale solicitors, for the manage With regard to the appointment of official ment of the private affairs of families and trustees, although not so objectionable as individuals. Let them exercise their injoint stock companies, we think the sugges- genuity, and apply their capital in great tion altogether uncalled for. It is an un- public undertakings which require the asfounded slander on the relations and friends sociation of large numbers, and the division of testators that they cannot be trusted. of risk amongst many shareholders, The occasional instances of breach of trust do not justify an alteration of the law.

See p. 118, post. And the suggestion in regard to the failure of solicitors who are often associated with

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