« EelmineJätka »
Receiving Money out of Court.-Law of Attorneys and Solicitors. issued by the clerk of the Court is 11,044, On a claim by Miss Morris under a decree in under which 5,231 persons were actually a creditor's suit against his estate, the Vicetaken to prison. The number of appeals entered under the 13
Chancellor Kindersley said, "Taking, first, the & 14 Vict. c. 61, from 1st Jan. to 31st Dec., advance to Russell. The security is a reversion1852, both inclusive, was 37, and 6 were pend- ary interest in Russell, expectant on the death ing on 1st Jan., 1852, of which & were con- of his mother, and there is no doubt that Miss firmed, 13 were reversed, 12 were dropped, and Morris was made aware that the property was the other 10 remain undecided.
The number of plaints entered by consent reversionary; but she was also informed that of parties under the 13 & 14 Vict. c. 61, s. 17, it was an ample and sufficient security; from 1st Jan. to 31st Dec., 1852, both inclu- and that she might have to wait for her insive, was 25, of which 19 were tried. The total amount received by the treasurers
terest; but it was not stated to her that its on account of the general fund for the same
whole value depended on Russell dying leavperiod was
£42,922 ing children, living his mother. That was not And the payments
43,221 communicated to her, and, without doubt,
on these facts Dixon was liable in some form RECEIV NG ONEY OUT OF COURT. to Miss Morris.
“Take next Horen's case. The conclusion at NEW REGULATION OF THE QUEEN'S BENCH. which I have arrived as to the facts is this : The Common Law Procedure Act requires
-Dixon had, as Miss Morris represents, a an authority to be signed by the plaintiff autho- great interest in Horen. Dixon's brother had rising his (her or their) attorney to receive the lent to Horen 450l. He had therefore a par.
ticular interest in Horen. Then, under his money out of Court. It is requested that the authority be in some
recommendation, Miss Morris advanced two thing of the following form, viz:
sums of 500l. and 2001. to Horen, on what
was represented to her to be a good security, In the Queen's Bench. Between A. B., plaintiff,
she being wholly ignorant what it really was.
It turns out that, as to the 2001., the security C. D., defendant.
was a piece of land held under a lease for a I hereby authorise Mr. E. F., my Attorney, term of 451 years, at a ground rent of 251. a to receive out of Court the sum of £ paid year, and subject to rates, taxes, &c. But, on in on the day of
by the defend- application for information being made to the ant in this cause. Dated the
day of 185
ground landlord, it turns out that neither (Signed) A. B., Horen, the mortgagor, nor any person on his
the above-named plaintiff. behalf, ever took possession of the property, To the Masters of the Court of Queen's Bench. or even paid any rent for it. The landlord had
In agency cases the agent must be described never heard of any dealings by Horen with as the attorney. It is requested that parties should furnish the lease as abandoned. I am of opinion,
the property, and had considered and treated themselves with the necessary receipt stamp on leaving their papers one day for the next.
without any doubt or hesitation, that, as to Where the plaintiff is out of the jurisdiction, that sum, Dixon is liable. it is necessary that a Judge's order should be
“So, as to the 500l., that was advanced on obtained.
the security of leasehold property, as to part
of which only 64 years of the term remained, LAW OF ATTORNEYS AND SO- and as to other parts of which the outgoings LICITORS.
are so great that the security is absolutely worthless.
“Next, as to the money advanced to Gilbert. CIENCY OF SECURITY.
There is no direct evidence to show that the It appeared that a Miss Morris had from security was not at the time of the advance of time to time placed in the hands of Mr. Dixon, sufficient value. Dixon having moneys of deceased, who had acted from 1837 as her so. Miss Morris in his hands, which he had unlicitor and adviser in money affairs, consider- dertaken to advance for her on securities, lent able amounts, for which he undertook to find it to Gilbert, and in his account charges it acsecurities, and that he had placed out certain cordingly. Prima facie, I should not have sums on insufficient securities.
considered this case as standing on the same
SOLICITOR ACTING AS MONEY SCRIVENER
FOR CLIENT. LIABILITY FOR INSUFFI
Law of Attorneys.-Points in Equity Practice.-Law of Evidence. grounds as the others, there being nothing to share is definitely ascertained, because the show that the security was not originally a amount of her share is, or might be, a maproper security, nor to show that even now it terial element in inducing her to give that conwould not realise a sufficient amount. But sent. On the other hand, if I now simply make then, this takes place about a year after Dixon an order to tax the costs, a second application himself bought Gilbert's equity of redemption, to the Court will become necessary, and will and so became himself the mortgagor, and he be the occasion of further expense and delay, continued to pay interest. It appears to me -two things from which I am always most that, under these circumstances, there was anxious to save the parties. If the amount of neither fraud nor negligence; but Dixon is Mrs. Jolly's share were below 2001., in the orresponsible as mortgagor. In that character dinary course of practice, the Court would the 3501, is a good charge against him. order the legacy to be paid to her husband,
" Now, as to the form in which Dixon is to without her consent. In the present case, be held liable.
It is a question of having regard to the testator's property, I find account between Miss Morris and Dixon. that Mre. Jolly's share cannot annount (before Primé facie, his accounts would be binding; payment of costs) to more than about 300l., but (and I am regarding Miss Morris's claim and when the costs are taxed and paid, will not as if she had made it during Dixon's life) if probably much, if at all, exceed 2001. Under Miss Morris had filed her bill, then on proof these circumstances, therefore, I think that an of the facts of this case, she might have sur- arbitrary rule of the Court, though a wholecharged and falsified the account, by showing some and judicious rule in general, ought to the misrepresentations as to the investments. give way when the justice of the case and con
“ This is not, then, a mere legal demand for venience of the parties require it, and I shall damages; it is a question of items in an ac- therefore direct Mrs. Jolly's share to be paid count; a question how far, under the circum- to her husband.” Roberts v. Collett, 1 Smale stances, Dixon can discharge himself by the & G. 138. disbursements made by him.” Smith v. Pococke, 2 Drewry, 197.
LAW OF EVIDENCE.
POINTS IN EQUITY PRACTICE.
EXTRINSIC EVIDENCE OF DESCRIPTION OF
LEGATEE IN WILL.
TAKING BILL PRO CONFESSO AGAINST DE
FENDANT IN IRELAND, -SERVICE OF NO-
A TESTATor appointed as his residuary legatees John Wheeler, George Wheeler, Mary
Wheeler, widow, and William Wheeler, “the An office copy of a decree to take the bill
children of my mother's sister.” There was pro confesso against a defendant residing in
evidence that the testator was aware of the Ireland, and of an order limiting the time death of John Wheeler before the date of the within which he should apply for permission to
will, leaving a son of the same name, to whoin put in his answer and set aside the decree after
the testator had intimated he had left some beservice of notice for that purpose, was duly nefits by his will. It appeared that there was seryed on such defendant. The Master of the Rolls held such service the widow of a child named Richard, and there
no child named Mary Wheeler, but she was of the order a sufficient notice under the 87th
was evidence the testator had stated to her he Order of May 8, 1845, and upon the defendant had done something for her by his will. not applying accordingly, made the decree absolute under Order 90. Trilly v. Keefe, 16 John and Mary Wheeler claiming to be en
The Master of the Rolls, on the petition of
titled, said, “ There is clear evidence that the ADMINISTRATION CLAIM. - PAYMENT TO testator knew that there was no such person
HUSBAND OF SHARE OF MARRIED WO- living as John, the son of Mary, yet he introMAX.
duced the description of such a person in his On an application for payment to her hus- will, the only John Wheeler then existing being band of the share of a married woman in an the grandchild. I think it is not too much estate in course of administration by claim, to say, that John Wheeler, the grandson, was Vice-Chancellor Stuart said, “The Court intended, there being no other child of this cannot take Mrs. Jolly's consent until her name, and there being distinct evidence, that
Law of Evidence.-Law of Costs.-Queries of Articled Clerks. the testator stated to him that he intended to | OF APPEARANCE OF LEGAL PERSONAL REleave him something.
PRESENTATIVE ON HEARING OF PETITION
TO WIND UP SUIT. “He has made a gift to Mary Wheeler, the widow, described as a child of bis aunt. But
All proceedings in a cause had been by under the circumstances, and there being evi- order stayed as against the legal personal redence of an intention to benefit her, I must presentative of the testator, but his solicitor hold that he intended to include her.” In re
was served with a petition, which was presented Blackman, 16 Beav. 377.
to wind up the suit and to carry over to par
ticular accounts the funds standing to the SECONDARY EVIDENCE OF DEED, WHEN general credit of the cause, with notice that he
was not interested, and should not appear at Held, that a paper which an attorney ad. the hearing. The Master of the Rolls, nevermitted to have been delivered to the defend- theless, gave him his costs of appearance on ants from his office as a copy of a deed, but the petition, as also to the purchaser of a part which he stated he was unable of his own of the estate. Rowley v. Adams, 16 Beav. 312. knowledge to vouch to be a copy, was properly rejected as secondary evidence of the QUERIES OF ARTICLED CLERKS. deed, which the attorney declined to produce apon the ground that it was the title-deed of INTERVAL OF SERVICE.-ILLNESS. his client. Volant v. Soyer, 13 Com. B. 231. B. was articled and served a year, when he
was taken ill and returned home. He attend. LAW OF COSTS.
ed almost daily at the attorney's office and did some professional work, and also studied
classics with a tutor. Will the intervals of atOF PETITION UNDER TRUSTEES' ACT, 1850, tendance be reckoned under the circumstances TO OBTAIN SURRENDER, VENDOR AND
as good service under his articles ? On a sale of copyholds, the vendor con
[The intervals of service occasioned by illtracted to surrender, or procure some person Examiners' questions seems to contemplate
ness will, we think, be reckoned. One of the to surrender, the costs of the surrender to be
such absence, and requires the cause of abborne by the purchaser. The heir was unknown, and it therefore became necessary
sence to be stated as well by the attorney as to
the clerk. In the case Exparte Matthews, 1 present a petition under the Trustees' Act, 1850 (13 & 14 Vict. c. 60), for the appoint- to be admitted, although he had been absent
B. & Ad. 160, the Court allowed the applicant ment of a person to surrender. The question from illness nearly two years, attending only arose as to whether the costs of such petition were payable by the vendor or by the pur
as his health permitted.-Ed.] chaser.
SERVICE OF A GRADUATE. The Master of the Rolls said, “The costs of
A graduate clerk, articled for three years, sale, in the absence of contract, fall on the may serve one year with a London agent, but vendor, and the costs of preparing the con- may not serve with a barrister, while a nonveyance on the purchaser; but the costs of graduate clerk, articled for five years, may serve
one year with a barrister and one year with the executing it must be paid by the vendor.
London agent. Of the two classes of clerks, “Here the contract is, that the vendor shall the graduate clerk would be most benefited surrender or procure some person to sur- by a systematic course of study in a barrister's render, and that the costs of the surrender chambers.
H. shall be borne by the purchaser. There is a [The Legislature evidently considered that difference between the mere act of surrender the practical skill and knowledge required by ing and the steps which may be necessary for an attorney can in general be obtained only by the purpose of procuring some proper person a service of three years in an attorney's office, to perform that act. They are distinct, and either in town or country. The graduate may the costs of procuring some proper person to afterwards extend bis studies in a barrister's surrender must, on ordinary principles, be paid chambers; but we think he cannot make himby the vendor, and the costs of the surrender self master of the details of the business of an by the purchaser.” Bradley v. Munton, 36 attorney and solicitor in less than three years. Beav. 294.
Selections from Correspondence.-State of Law Bills in Parliament.
33 HOLDING OFFICE DURING CLERKSHIP. entered into possession, and within the last
Can a clerk, while serving under articles, 10 years sold and conveyed it for a valuable hold the office of Town Clerk of a borough consideration to a British born subject, who without vitiating the service? The duties of continues in possession. Has he a good title ? the office are very slight, and will not, on the and if not, would the Crown, on a memorial average, occupy one day in a month ; but the being presented, confirm the title ? and if so, duties cannot be perforined in over hours.
what are the usual terms of so doing? The office of Town Clerk being usually held by an attorney, we think the occasional STATE OF LAW BILLS IN PARLIAattendance to discharge the duties of that office
MENT. wil not prejudice the articles of clerkship. It
House of Lords. has been held by the Examiners that an ar
Second Common Law Procedure, 1854.ticled clerk may hold the office of Deputy Lord Chancellor. In Select Committee. May 10. Coroner. At all events, it is clear that the ser. Declaratory Suits.-Lord Brougham. For vice may be subsequently made up.-Ev.]
2nd reading, put off sine die.
Arbitration Law Amendment. Lord Brouge
ham. In Select Committee, May 10. SELECTIONS FROM CORRE- Dishonoured Bills of Exchange. Lord SPONDENCE.
Brougham. In Select Committee, May 10.
Conveyance of Real Property Act Amend
ment.–Lord Brougham. For 2nd reading. RENT UNDER INSOLVENCY.
South Sea Trust Company. In Select ComTae Law preserves for a landlord, a year's rent mittee. under a fi. fa., but in too many cases he loses Executor and Trustee Society.-Referred to it. In the case of an insolvent debtor, I think Standing Order Committee, May 16. that his property or effects should in all cases Manchester Court of Record.-Referred to be liable to make good the rent not exceeding two Judges. a year. And in cases where the debtor has clandestinely removed his goods whereby a
House of Commons. loss of rent is incurred, he should not be al- Testamentary Jurisdiction.-For 2nd readlowed the benefit of the Act until that rent was ing, May 15. made good. It would also be convenient to Judgment Execution.- Mr. Crauford. In provide in cases of clandestine removal of Select Committee. goods to avoid a distraint, that on their being Witnesses.—Mr. J. Butt. For 3rd reading, followed by the landlord within the 30 days, May 12. they should be held and considered the iden- Extension of Cornwall Stannaries' Court. tical goods, and that the onus should lie on the Mr. Collier. For 2nd reading, May 18. terant to prove the contrary: the difficulty in Total repeal of Punishment of Death.proof is almost insurmountable at present. Mr. Ewart, May 30. Will no member take this into consideration Criminal Procedure.-Mr. Aglionby. For and prepare a Bill to remedy the defects ? 2nd reading, May 19.
AMICUS. Appointment of Public Prosecutors.--Mr.
John G. Phillimore. For 2nd reading.
Police (England and Wales).- Viscount Pal
merston. It appears to be admitted on all hands that an imprisonment of six months with hard
Registration of Bills of Sale.-In Committee, Labour is inadequate to put an end to, or even
May 17. diminish, the evil of brutes in human shape -Mr. R. Phillimore.
Mercantile Laws of England and Scotland. cruelly beating their wives, whom they have sworn to cherish. It may be well worth con
Apportionment of Rent, &c.—Sir William
Molesworth. sideration whether, if power were given to the justice or two justices to superadd 40 lashes theron. In Select Committee.
Friendly Societies' Regulation.-Mr. Sosave one, in very serious cases,-a remedy to a
- Visct. more extended degree, which would effectually, Goderich. For 2nd reading, May 16.
Industrial and Provident Societies. when soundly applied, put an end to Ribbonism in Ireland. At least, such is the opinion May 15.
Merchant Shipping. For 2nd reading, of many enlightened individuals in the Emerald Isle.
Property Disposal.-Mr. Whiteside. For 2nd reading, May 24.
Mortmain.--Mr. Headlam. In Committee, PURCHASE OF AN ALIEN,
May 17. An alien, nearly 20 years ago, purchased
Drainage of Land.--Mr. Ker Seymer. For some freehold property within a manor be. | 2nd reading, May 17. longing to the gee of Canterbury. The alien
Real Estate Charges.-Mr. Locke King. For died, when his nephew, a Swiss, also an alien, and reading, May 18.
Notes of the Week.-Superior Courts : Lords Justices.
INNS OF COURT COMMISSION.
NOTES OF THE WEEK. Thomas Greenwood, Esq.; James Stewart,
Esq., and Germain Lavie, Esq., to be her
arrangements in the Inns of Court and Inns The Queen was this day (3rd May) pleased of Chancery, for promoting the study of the to confer the honour of Knighthood upon Law and Jurisprudence, and securing a sound Richard Budden Crowder, Esq., one of the education to the students. From the London Judges of her Majesty's Court of Common Gazette of 5th May. Pleas. From the London Gazette of May 5.
QUEEN'S BENCH SITTINGS IN BANC.
This Court will, on Saturday the 13th day The Queen has been pleased to appoint Sir May inst., hold a Sitting, and will proceed in William Page Wood, Knight, a Vice-Chancel- disposing of the business now pending in the lor; Sir John Taylor Coleridge, Knight, one of Special and New Trial Papers, and give judgthe Justices of the Court of Queen's Bench; ment in cases previously argued. the Right Honourable Joseph Napier; Sir Alexander James Edmund Cockburn, Knight, her Majesty's Attorney-General ; Sir Richard The Honourable Thomas Edward Mostyn Bethell, Knight, her Majesty's Solicitor-Gene- Lloyd Mostyn, for the County of Flint, in the ral; Sir Thomas Erskine Perry, Knight; John room of the Honourable Edward Mostyn Lloyd George Shaw Lefevre, Esq.; Henry Singer Mostyn, now Lord Mostyn, summoned to the Keating, Esq., one of her Majesty's Counsel ; | House of Peers.
NEW MEMBER OF PARLIAMENT.
RECENT DECISIONS IN THE SUPERIOR COURTS.
share or shares should also from time to In re Thompson's Trust. May 8, 1854.
time survive in the same
original shares, until the several shares WILL.-CONSTRUCTION. --BEQUEST BY
should become payable. The testator further REFERENCE.
directed, that in case there should be no A testator bequeathed a sum of stock to his child or children of bis said daughter living
daughter Elizabeth, and her issue, with be- at the time of her decease, or of any sale, asnefit of survivorship on the death of any signment, or incumbrance or anticipation by child under 21, and in case there should be her, or being any they should die under 21, the no child or children living at the time of 15,000l. should go unto all and every his chilher death, or being any they should die dren then living, and the child or children of under 21, then unto all and every his chil- such of his said children as should be then dren then living, and the child or children dead, in equal shares and proportions, but so of such his said children as should be then that such his grandchildren should only have dead in equal shares per stirpes. The tes- and be entitled among them to such share or tator also gave a further sum of stock to shares as their parent or parents would respecanother daughter, M., on similar trusts tively have been entitled to in case they had as expressed concerning the legacy to been then living. There was a like sum of Elizabeth,, und in default of issue in 15,0001. given to another daughter, Anne Cressfavour of his other children. It appeared well, and also a further sum of 10,0001
. to his that a child, who was dead at the date of daughter, Mrs. Metcalf
, on similar trusts as will, had left three children : Held, con- expressed concerning the legacy of Mrs. Sutton, firming the decision of Vice-Chancellor and in default of issue, in favour of his other
Wood, that they were not entitled. children and their issue, or as near thereto as The testator, by his will, dated in February, the death of persons and other circumstances 1837, gave a sum of 15,000l. 3 per cent. would perinit. It appeared that at the testaconsols., in trust to pay the dividends thereon tor's death, there were two sons and the three from time to time to his daughter Elizabeth, above-named daughters surviving, and that wife of Thomas Sutton, for life for her separate another daughter named Mary Anne Tunuse, and after her death, or in case she should stall, was dead at the date of the will, but assign, incumber, or anticipate, then in trust had left three children, and that Mrs. Metcalf to pay and transfer the 15,0001. unto and died in April, 1853, without issue. The chilamong all and every of her children, to be dren of Mrs. Tunstall now claimed a fifth part equally divided between them, if more than of the 10,000l. given to Mrs, Metcalf. The one, share and share alike; and if but one, Vice-Chancellor Wood having held that they then to such only child. He directed the were not entitled, but that the four surviving shares to be payable at 21, and that if any of children took the 10,0001. stock, this appeal the children should die under 21, the share of was presented, (reported 2 Equity Reports, the one so dying should go to the survivor or 236). survivors of them at such time as the respec- Walker, Amphlett, and Haynes in support; tive original share or shares should become Chandless and Haldane for the executors, payable, and that such surviving or accruing contrà.