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Enfranchisement of Copy holds.-Law of Attorneys and Solicitors.

125 of such a general measure of enfranchisement of an unenlightened and oppressive feudal age, thus appear to be placed by the high autho- and entirely out of harmony with the improved rities above referred to, beyond the possibility legislation and progressive institutions of the of any further doubt or question.

present time. “That the copyhold lands within the said “ Your petitioners therefore humbly pray, manor of Kennington are, from their conti- “That the enfranchisement of all copyhold guity to the metropolis, peculiarly capable of lands holden of manors belonging to the being greatly improved and largely augmented Crown or the Duchies of Cornwall and Lanin value by means of enfranchisement, which

caster may, through the recommendation or the various hardships and grievances com- other constitutional interposition of your plained of would be effectually remedied; and Honourable House, be offered to the copythat your petitioners and (as they have reason

holders, on fair and equitable terms of adto believe) the general body of copyhold te

justment and compensation for the manorial pants of the said manor, are most willing and rights; and that as a most important naanxious to enfranchise their copyholds upon tional measure of legal and social reform, in fair and liberal terms; but that, notwithstand- union with the spirit of the present age, and ing the recommendation of the Real Property in strict accordance with the recommendaCommissioners, of the decisive and strongly tion of the Commissioners and the reports expressed opinions of two successive Com.

of the two Select Committees above referred mittees of your Honourable House, your pe- to, a Bill may be forth with introduced into titioners find themselves almost entirely de

your Honourable House, with a view to the barred by the exorbitant terms demanded for enfranchisement within the said manor, from

passing of a law for the general and speedy

enfranchisement of all the copyhold lands in availing themselves of the benefit of such re

the kingdom, upon similar fair and equitable commendations and opinions. For your pe- terms of adjustment and compensation for titioners have to complain that the surveyors the manorial rights. and agents acting heretofore under the Council of the Duchy of Cornwall, instead of adopting

And your petitioners will ever pray, &c." the equitable principle which pervades the Act

June, 1854.” for the Commutation of Tithes, have proposed, as the terms or price of enfranchisement, the

LAW OF ATTORNEYS AND SOpayment by the copyholders of the said manor

LICITORS. of soms very much larger than the actual value of the manorial rights of the lord, and far be. yond what are usually exacted by the lords of BILL OF costS IN PAUPER SUIT. other majors,' and, in fact, in the said manor

FECT OF DISPAUPERING ORDER. of Kennington the copyholders have been The defendant, a claimant in a Chancery generally refused any enfranchisement what-suit, retained the plaintiff as his solicitor, ever. " That from the want of a more general and

who agreed to conduct it upon the ordinary stringent system of copyhold enfranchisement, terms, and not to press the defendant, but the alienation and free disposal of all property wait until he should come into possession of of this description has been greatly impeded, certain property, to which he was entitled and the public revenue as well as the general on the death of his father. An order was interests of the community at large, thereby obtained on July 29, 1851, from the Master . seriously injured, and that the unreasonable of the Rolls for leave to sue in formá pauyour petitioners are well assured, to her Mas peris

, but the defendant's father died on your petitioners are well assured, to her Ma- October 31 following, but the plaintiff, alin the way of the enfranchisement of copyholds though aware of his death, had taken no within the said manor of Kennington, and like- steps to get his client dispaupered. An wise (as your petitioners have ascertained) in order was made on December 8, whereby all the other manors belonging to the Crown the defendant was dispaupered from the and to the two Royal Duchies of Cornwall and time of his father's death. The bill in Lancaster, have unfortunately caused the loss Chancery was dismissed in March, 1852, of a most influential example in the highest and this action was brought for services quarter for the promotion of the public good.

"That the copyhold tenure, in all its di- performed therein. There is an item in versified and in innumerable instances most

the bill of costs for a payment to the law absurd varieties and customs throughout the stationer for copying and for parchment and ikingdom, is almost the last remaining vestige paper, and also for couvsel's fees, which,

however, had not been paid. It may be mentioned that His Grace the On a motion, pursuant to leave to reduce Duke of Satherland and T. W. Giffard, Esq., the verdict for the plaintiff, — offered just and equitable terms to the copyholders of Bilston, Willen hall, and Wolver

Parke, B., said, “We never entertained any hampton, as stated in the Report of the last doubt that an attorney cannot charge for counCopybold Committee.

sel's fees which have not been paid. In point

EF

OF QUO WARRANTO AGAINST CORPORATE

OFFICER

126

Law of Attorneys and Solicitors.--Law of Costs. of law they are gratuities; and as he has not fam of opinion that he cannot. I think that the paid them, with respect to them he is not a law contemplates that the attorney will take farthing out of pocket. It is, therefore, per- that duty upon himself, and therefore he ought fectly clear, that he is not entitled to that item. not to incur those charges. He should draw The next point is, whether the bill is to be re- his instructions for counsel, and write the brief duced by the amount charged for business fairly in the first instance, so as not to make it done whilst the pauper order was clearly in necessary that it should be copied. If he gets force, that is to say, up to the 31st of October, it copied, he does so on his own responsibility. 1851. The plaintiff was appointed to act as If there had been any decision to the contrary, the defendant's attorney in the Chancery suit, I should have felt bound by it, but that does under the 1 Hen. 7, c. 12, which expressly says, not appear to be so. The plaintiff, therefore, that poor persons shall have writs, therefore can recover for the value of the parchment and nothing paying for the seals of the same nor to paper only.” Holmes v. Penney, 9 Exch. R. any person for the writing of the same;' and 584. that the Chancellor shall assign clerks to write the same writs ready to be sealed, and also

LAW OF COSTS. learned counsel and attorneys for the same, without any reward taken therefore; and it provides that if the writ shall be returned before the King in his Bench, the justices there shall assign counsel and likewise appoint attor- Where a person, wrongfully elected to a ney for the same poor person or persons, and corporate office has accepted it so that the all other officers requisite and necessary to be office is full, the Court, in making absolute a had for the speed of the said suits, which shall do their duties without any reward for their rule by his consent for a quo warranto, refused counsel's help and business in the same. The to make it one of the terms of the rule that plaintiff, therefore, cannot charge for any mat. any further proceedings should be at the cost ters falling under this description, as for skill of the relator, although the defendant did not and advice, which would include all necessary business, as for preparing the requisite docu- oppose the rule being made absolute with costs ments, although he would be entitled to be re- up to the present time, and was willing to reimbursed money out of pocket. The next sign or disclaim. Crompton, J., referred to question is, whether the plaintiff was entitled to Regina v. Sidney, 2 L. M. & P. 149, and charge for business done between the 31st of Regina v. Earnshaw, 3 E. & B. 143, n., over. Oct. and the 8th of Dec., as to which interval the Master of the Rolls decided that, as between ruling Regina v. Morton, 4 Q. B. 146. Regina the plaintiff and defendant in that suit, the v. Hartley, 3 Ellis & B. 143. defendant had been improperly litigating as a pauper at a time when he was not one in truth. The Master of the Rolls did not decide as between attorney and client. That On a plaint being brought against Mr. Holmatter was not before him, but the question land, the alleged owner of a ditch, to recover a was between the litigant parties to the suit, sum of money expended by the guardians of and the order had reference to them alone. the union in enforcing an order of justices under The Master of the Rolls, therefore, did not decide

any question as to fees. Prima facie, the Nuisances' Removal Act (11 & 12 Vict. c. every step which was taken between those 123), he applied at Chambers for a prohibition dates was taken gratuitously, and the plaintiff on the ground that he was not the owner of had no right to make any charge on that ac- the ditch, when the Judge suggested that count. If, then, the pauper is liable for this part of the claim, it must be by virtue of some the case should stand over for the opinion contract; but there was no such evidence; of the Court, but the application was not and indeed the case was not rested upon that proceeded with. The plaint was then tried, ground at the trial; and if it had, I think it and the plaintiffs obtained a verdict, the would have failed, as being a contract without consideration, and consequently nulum pactum. County Court Judge acting in the belief that a The plaintiff clearly had 'no ground for charg- prohibition had been refused, but he refused to ing the defendant on his original agreement. make an order for payment of the amount. The plaintiff, therefore, cannot recover for his A rule was then made absolute for a mandaservices between the 31st of October and the 8th of December. The only remaining ques.

mus upon the County Court Judge upon retion is, what charges for stationery the plaintiff ference to section 3 of the Nuisances' Removal could make while the pauper order was thus Act (reported 2 Ellis and B. 188). in force. He is entitled to charge for paper and parchment necessary for carrying on the

In discharging a rule nisi on Mr. Holland suit. It was said, he was also entitled to re

to pay the costs of the rule for a mandamus, cover the stationer's charge for copying. In Erle, J., said,—“The late cases have generally the absence of any authority upon this point, 1 given the costs of obtaining the writ to the

OF MANDAMUS ON COUNTY COURT JUDGE.

was

Law of Costs.-Questions at the Examination.

127 "successful party; and though it is a matter for for the debt, what becomes of the debt and of the discretion of the Court, it is said that they the security; and how can this be prevented ? qught to be given unless there are strong against one only of several partners, what step

When an action of contract is brought grounds to the contrary : Regina v. Mayor of ought the defendant to take, and what forms Newbury, I Q. B. 751. Taking that to be the are required ? rule, I have come to the conclusion that Mr.

Ir at Before what hour must service of pleadings, Holland has shown sufficiently strong grounds notices, summonses, orders, rules, and other for holding him to be exempt. The objection being deemed as made on the following day?

proceedings be made, to prevent the service that title to land was in question was true, Where an attorney who has given an unand would have ousted the jurisdiction if it dertaking to enter an appearance has not aphad not been for a recent enactment. It

peared in pursuance of his undertaking, what

will be the consequence ? an objection to the tribunal which did not de

When must an application be made to comcide the contest, and did not prevent its de- pel a plaintiff to give security for costs (in orcision upon the merits. It had the sanction of dinary cases)? the Judge of the County Court, and it had in

After a delay of proceedings for one year, a degree the sanction of Mr. Justice Crompton, desires to proceed ?

what notice must now be given by a party who i at Chambers, who provided for an application Where a summons is applied for to set aside to the full Court for a prohibition, as appears proceedings for irregularity, what must be by the statement in Regina v. Harden, 2 E. & stated therein ? B. 188.

In order to change a venue what is it now

necessary to obtain ? "The objection had again the sanction of Within what time must a party called upon the County Court Judge upon the second by notice to admit documents, either admit or hearing, when he prepared a case for the

refuse to admit?

application so provided for, and himself stayed tion of costs in the rule, what is the doctrine as

If a new trial be granted without any menthe proceedings, in order that it might be to the costs of the first trial ? made. In all these applications, as the law Where a plaintiff or defendant has obtained was then understood, the defendant was en-a verdict, or a plaintiff has been nonsuited, titled to succeed, and the application for the

within what time may judgment now be

signed and execution issued (unless otherwise mandamus was supported only by a reference ordered)? to a subsequent statute, which had not been What is the usual mode of submitting a adverted to, and then first received a judicial question to arbitration ? construction." Regina v. Harden, i Lowndes

When a party gives a warrant of attorney,

by whom must it be attested and what must & M. 214.

the attestation state ?

III. CONVEYANCING. QUESTIONS AT THE EXAMINATION.

What are the denominations and qualities Trinity Term, 1854.

of estates in land less than fee simple ? State

them severally. I. PRELIMINARY.

What words will create or pass a fee simple WHERE, and with whom, did you serve estate in a will or deed respectively? And as your clerkship?

to a will, what difference in this respect is made State the particular branch or branches by the Statute for the amendment of the law as of the law to which you have principally ap- tó wills? plied yourself during your clerkship,

An estate is limited to the use of A, for life, Mention some of the principal law books and after his death to the use of the heirs of which you have read and studied.

his body.

What estate does A. take ? Have you attended any, and what, law What do you understand by the doctrine of lectures ?

estoppel ?

When were fines and recoveries abolished, 11. COMMON AND STATUTE LAW, AND PRAC- and how may an entail be barred at this day,

1st, by tenant in tail in possession-2nd, by State what actions at Common Law are tenant in tail in remainder? founded in contract, and what on tort; add- What are the usual powers of a tenant for ing" whether they are respectively local or life over the estate ? transitory?

Do estates held in joint tenancy, tenancy in bar Suppose the cause of action to amount to common and in coparcenary, differ in any, and

an indictable offence, is a civil action main- what, essential particulars? tainable ?

As the law now stands, are trustees to preIf a man marry a woman to whom he is in- serve contingent remainders necessary? Exordebted, and to whom he has given a security plain their use in settlements.

TICE OF THE COURTS.

128

Questions at the Examination.

A feoffment made to A. and his heirs to the come bankrupt, and liable to the Bankrupt use of B, and his heirs in trust for C. and his Laws as such? heirs ; explain the operation of the Statule of Are there any, and if any, what cases in Uses in the above limitation.

which property in the possession of the bank. When is real estate considered as personal, rupt, at the time of his bankruptcy, does not and personal as real?

pass to his assignees ? State instances. In what cases, and in favour of what per- In what case, and under what circumstances, sons, are bonds or covenants to resign a living would an assignment, made by a trader, be an legal?

act of bankruptcy? State the cases, and the Explain the origin of copyholds, and by circumstances to be attended to when considerwhat Statute was the further creation of ing such a question. manors prohibited ?

When an assignment, made by a trader, is What is the difference between a jointure held to be an act of bankruptcy, what will be and a dower, and how is the former constitut- the effect of it, and in what, if any, case will it ed, and how does the latter arise ?

be upheld? Show the outline of an ordinary farming State the particular cases in which goods of lease for seven years.

the bankrupt, seized by one of his creditors Give the outline of an ordinary lease for 21 under an execution, can be held by the creditor years of a private house in London.

or sheriff?

If a trader at the time of his bankruptcy be IV. EQUITY AND PRACTICE OF THE COURTS.

possessed of leasehold property, subject to a A. contracts, in writing, to sell an estate to rent, what will be the consequence of the B., and afterwards refuses to convey. What bankruptcy as regards the liabilities and rights remedy has B. in a Court of Equity ?

under the lease ? Will a Court of Equity, in'any, and what If the assignees desire to obtain for the cases, give any, and what relief, where a con- bankrupt's estate the value of leasehold pretract for sale of land has not been reduced to mises belonging to the bankrupt, what course writing?

should they pursue so as to attain that, and State generally the practice in Equity in without making themselves liable as assignees presenting, serving, and bringing to a hearing, of the lease? a petition in a cause.

Are there any, and if any, what, cases in State the different modes in which evidence which payments or transfers made by a trader may be given in support of a bill in Equity. before the filing the petition for adjudication

In what cases will a Court of Equity grant can be set aside, or the money or property rean injunction, and what is the effect of an in- covered for the benefit of the estate? junction?

What steps are necessary in order to vest A. obtains a conveyance of an estate from the trader's property in his assignees under B. by fraud, and A. sells and conveys the the bankruptcy ? estate to C. Under what circumstances will

Are there any means other than a baqk. a Court of Equity give B. any, and what, ruptcy by which a trader can get discharged relief?

from his debts ? Will a Court of Equity relieve against acts What are the consequences of a petitioning performed under mistaken notions of law ?

creditor compounding with the trader after State the different modes of defence to a filing the petition for adjudication on bankbill in Equity

ruptcy? By what summary process can a creditor of Can a bankruptcy once opened be coma deceased person procure the administration promised, and the proceedings stayed by conof his real and personal estate ?

sent ? State the instances and mode of proCan a Court of Equity in a foreclosure suit ceeding. direct a sale of the mortgaged estates ?

If a bankrupt wishes to dispute the bankCan a Court of Equity in a bill by a mort- rutcy, within what time must he do so, and gagee for sale of the mortgaged estates decree what are the steps to be pursued ? a foreclosure ?

By whom, or by what authority, is the cerA trustee has money in his hands for the tificate of conformity granted ? benefit of a widow for life and afterwards of

At what stage of the proceedings can the her children. By what summary proceedings certificate of conformity be obtained ? may he effectually relieve himself of the trust?

Å Court of Equity will restrain a tenant for life, without impeachment of waste, from com. mitting some kinds of waste. What are they?

Over what places does the jurisdiction of What is the nature and effect of a bill of in- the Central Criminal Court extend? terpleader?

What is a writ of procedendo ? How may a decree of a Court of Equity for What is a certiorari? payment of money, and for conveying an estate State the different modes of proceeding in respectively, be enforced ?

criminal cases. V. BANKRUPTCY, AND PRACTICE OF THE Define the offence of embezzlement.

What is the nature of a writ of quo warWhat description of persons are liable to be- ranto, and how is it obtained ?

VI. CRIMINAL LAW AND PROCEEDINGS

BEFORE JUSTICES OF THE PEACE.

1

COURTS.

Superior Courts: Rolls.-V. C. Kindersley.V. C. Stuart.

129 What is the highest Court of criminal respect in the nature of the offence to be judicature ?

proved ? By what mode can the proceedings under What is the effect of a pardon by the Crown? an indictment be stopped against the will of In what mode, and in what cases, may arthe prosecutor?

ticles of the peace be exhibited ? Explain the nature of a writ of mandamus. Can a warrant for the apprehension of an

Explain the nature of a writ of habeas offender be in any case executed on a Sunday? corpus, and how it is to be obtained.

Can the attendance of a witness resident in How many witnesses are necessary to prove Scotland or Ireland be compelled to attend a an offence, and is there any difference in this trial in England ?

RECENT DECISIONS IN THE SUPERIOR COURTS,

PRTORITY

OF

CREDI

MENTS ON PETITION FOR PAYMENT OF

Master of the Rolls.

Vice-Chancellor Stuart. In re Constable of Swinton. June 14, 1854. Dollond and another v. Johnson. June 7, 1854. RAILWAY COMPANY. COSTS OF AMEND-CREDITORS' SUIT.

TORS IN RESPECT OF JUDGMENTS AGAINST DIVIDENDS.

EXECUTOR OF DEBTOR. Held, that a railway compuny is not liable Where creditors, the plaintiffs in a creditors' to the extra costs caused by the amendment

suit, on behalf of all the other creditors, of a petition for the payment of dividends against the executor of a testator, had obon the purchase-money of lands taken.

tained judgment in respect of assets quando

acciderint against such executor after the In this petition by the overseers of the above

death of his testator : Held, that they were parish, for the payment of the dividends on the

entitled in priority to another creditor who purchase-money for lands the rents of which

had afterwards obtained a like judgment were payable to the constable for the time

against the erecutor. being, and which were taken for the pur

In this creditors' suit for the administration poses of a railway company, and which had been paid into Court, it appeared that an order of the estate of a Mr. Turner, it appeared that had been made, but that it had been amended the plaintiffs had recovered a judgment against by making the constable a party.

the defendant, his executor, in respect of asThe Master of the Rolls held, that the costs sets quando acciderint, and that another creof such amendment were not payable by the

ditor had afterwards also obtained judgment company.

against the defendant. The question now arose, whether the plaintiffs were entitled in priority

to, or only to be paid rateably with, such other Vice-Chancellor Kindersley. creditor. Wellesley v. Mornington. June 13, 1854.

Wigram, Bird, and Faber for the several

parties, citing Morrice v. Bank of England, 3 LEAVE TO MARRIED WOMAN TO SUE IN FOR- Swanst. 573. MA PAUPERIS, WITHOUT NEXT FRIEND.

Cur, ad. vult. Leave was given to a married woman, living The Vice-Chancellor said, the right of pri

apart from her husband, to file in formâ ority claimed by the plaintiffs was said to acpauperis a bill in the nature of a supple- crue as the reward of their greater diligence in mental bill to remove trustees, on counsel obtaining judgment, but a still higher degree stating he had settled and signed the bill, of diligence would have been shown if judg

where she could not obtain a next friend. ment had been obtained against the testator in This was an application on behalf of the his lifetime, and then as it was admitted all the Countess of Mornington, who was living apart judgment creditors would be paid rateably. from her husband, for leave to file in formâ However, as the cases of Morrice v. Bank of pauperis a bill in the nature of a supplemental England, ubi suprà, and Abbis v. Winter, 3 bill to remove two trustess, one of whom was Swanst. 578, n., recognised this right of pri90 years of age, and the other an uncertificated ority as to judgments obtained against an exebankrupt; and also to restrain the sale of the cutor, and the plaintiffs had also been most trust property. There was the usual affidavit diligent in obtaining a decree on behalf of all that the plaintiff was not worth 51. besides her the creditors for the general administration, wearing apparel, &c., and that she could not their priority must be recognised, and their obtain a next friend, and also that she had a judgment debt be paid before the other right to sue.

judgment creditors. Freeling, in support, stated he had settled and signed the bill.

Moss v. Harter. June 7, 1854. The Vice-Chancellor thereupon made the order as asked.

VOLUNTARY SETTLEMENT WITH POWER OF

By a voluntary settlement, a sum of money

APPOINTMENT. EFFECT OF WILL.

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