« EelmineJätka »
PRINCIPLES ON WHICH SALE DIRECTED OF
Construction of Statutes.-Law of Costs. honourable and able men! Conceive them, then upon ordering such sum of money to be for a moment, disposed every where to stir up paid into Court as the Court may think necessary litigation, by availing themselves of their per- to protect them. Assuming this to be, in other fect acquaintance with almost all men's circumstances-artfully inflaming irritable and respects, a proper case to direct a sale, I think vindictive clients, kindling, instead of stifling, if the second mortgagees consented, and the family dissensions, and fomenting public third mortgagee paid into Court the amount of strife ; -why, were they to do only a hun- the first mortgage, then, as the first mortgagee dredth part of what it is thus in their power to do, our Courts of Justice would soon be will clearly have a security both on the prodoubled, together with the number of our ceeds of the sale of the estate and the money Judges, counsel, and attorneys-new jails in Court, he would be perfectly safe. must be built to hold the ruined litigants, and “I do not consider that under this clause the Insclvent Court enlarged and in constant session throughout the year.
the Court would be induced to act oppressively, “But not all this body of honourable and so as to dispossess a family of an old family valuable men are entitled to this tribute of estate. It is possible, also, that a life estate praise. There are a few Quirks, several might not sell well, and that a mere estate pur Gammons, and many Snaps, in the Profession of the Law-men whose characters and doings autre vie (which this would be) would not, if often make fools visit the sins of individuals sold, be so productive for the benefit of the upon the whole species.”
mortgagees, as the receipt of rents during the [See the new edition of “ Ten Thousand a continuance of the lives.” Hurst v. Hurst, 16 Year,” carefully revised, with Notes and Illus- Beav. 372. strations, vol. 1, p. 77.]
LAW OF COSTS. CONSTRUCTION OF STATUTES, EQUITY JURISDICTION IMPROVEMENT ACT. OF PETITION BY MASTER OF CHARITY FOR
PAYMENT OF INCOME.
The costs of a petition presented by the new MORTGAGED ESTATE, S. 48.
master of a charitable corporation for payment The Master of the Rolls said, “I appre- of the income upon a fund in Court belonging hend that the Statute enabling the Court to to the charity, were directed to come out of the direcć a sale, intended to give the Court a very income and not out of the fund. Attorneyconsiderable discretion, in order to avoid the General v. Smythies, 16 Beav. 385. great delay and expense which are occasioned by foreclosure and redemption in a case where SECURITY FOR costs. REAL ESTATE IN there is a great number of successive mort
THIS COUNTRY.-AFFIDAVIT. gages ; and the Court will, upon the terms and A plaintiff resident in Scotland was possessaccording to the directions contained in the ed, as stated in the affidavit in answer to a rule section, exercise that power in such a manner calling on him to give security for costs, "of as not to operate injuriously or oppressively large landed and other estates” in this country, on any person interested. If, therefore, a sale “of considerable annual value over and above of this property could now take place, as bene- all charges affecting the same.” ficially and profitably to the parties concerned, Crompton, J., said, “The possession of real as by allowing the rents to be received, I should property within the jurisdiction of the Courts think it a proper case for the exercise of that here is sufficient answer to an application of discretionary power contained in the Act. But this kind; but the affidavit must go further I should give liberty to the persons interested than the present one, and must show that the to bring before me any matters which might property is available for the purposes of an vary or alter my opinion, because they have execution. My brothers Patteson and Parke, not had the opportunity of so doing, in conse in the passages of their judgments in the cases quence of the cause being at issue before this cited,' put the exception to the general rule Act came into operation. The power given to upon the true ground. In order to bring the the Court, as I read it, is, at the instance of plaintiff within the exception, it must be shown the first mortgagee, to direct a sale, if it should think fit, or at the instance of a second or any Dawson, 7 Dowl. 573, 6, 7; Kilkenny and Great
Edinburgh and Leith Railway Company v. puisne incumbrancer, with the consent of the Southern und Western Railway Company vi prior incumbrancer; or if they do not consent, Fielden, 6 Exch. R. 8.1, 6.
- STATUTE OP LIMI
Points in Equity Practice.--Legal Benevolent College. --Record Repository. 81 that the property possessed by him in this THE GENERAL RECORD REPOcountry is available property. As the present
SITORY affidavit is sworn, I am not satisfied that the plaintiff has any available in England. The
CONNECTED with the proposed New afidavit merely says, “that the plaintiff is pos
Courts and Offices in the vicinity of the sessed of large landed estates of considerable
Inns of Court, we may not inappropriately value,” “ over and above all charges affecting tion of which has just been completed, on
refer to the important edifice, a large porthe same;" but they may, nevertheless, be the Rolls' Estate. The intended great wholly unavailable upon an execution. I think, central street, running from Cheapside to therefore, the rule must be made absolute.” Long Acre, and thence to Piccadilly, will Sæinborne v. Carter, 1 Lowndes & Maxwell, pass on the north side of the New Record 209.
Building, and continue thence along Carey
Street, and thus form one of the chief apPOINTS IN EQUITY PRACTICE.
proaches to the new Courts. In the Report, just printed, of the Record Keeper, we find
the following passages relating to the proREDEMPTION CLAIM.
gress of the Repository, and which will be TATIONS.—LETTER FROM MORTGAGEE TO
interesting to most of our readers who look
forward to the projected improvements in In a claim by the trustees of a building so- and near the Inns of Court. ciety to redeem an estate mortgaged to the defendant, John Hobson, the Statute of Limita- in pursuance of the vote taken in 1850, has
“The progress of this building, commenced tions (3 & 4 Wm. 4, c. 27) was set up. The been stated in preceding Reports (Eleventh Master of the Rolls said, “The letters written Report, 3, s. 1; Twelfth Report, 3, s. 1; by Hobson to his own solicitor can, in no de
Thirteenth Report, 3, s. 1; Fourteenth Regree, affect his right to the benefit of the Sta- having been completed about the month of
port, 3, s. 1). The shell of the building tute as a bar to the claim of the plaintiff.” See July, 1853, it appeared to the Master of Batchelor v. Middleton, 6 Hare, 84; Lucas v. the Rolls that it would be highly desirable Dennison, 13 Simn. 584.
that one room of the Record Repository Stansfield v. Hobson, 16 Beav. 236.
should be fitted up with models of the racks or presses intended for the Records, and
also of the galleries and other means of ac-. PROPOSED LEGAL BENEVOLENT cess to the same, all of which are to be conCOLLEGE.
structed of iron. This proceeding was con
sidered expedient, inasmuch as there are many The medical profession has lately nobly and questions connected with the consideration of
objects of this class which neither verbal deliberally subscribed for a medical benevolent scriptions, nor even drawings, can render sufcollege, which is now in course of erection on ficiently intelligible, and the models being subEpsom Downs, at a cost of some 20,0001. mitted bodily to the examination of the officers Perhaps you will permit me to throw out a
of the establishment, they will better be able
to form a judgment thereon. Application was hint of the practicability of a similar institution therefore made, 15th August, 1853, to your for the members of the Legal Profession. I Majesty's Board of Works, requesting that a. by no means consider it impossible ; on the room should be fitted up accordingly. When contrary, looking at the number, wealth, and the presses are completed, the removal of the
records from the present repositories will take liberality of the Profession, I entertain very place-a task not light or easy under any cirlittle doubts of its ultimate success.
cumstances, but peculiarly difficult with reA SEPTUAGENARIAN ONE, &c. spect to the records in the repository at the
Carlton Ride. These records belong princi(We are happy in being able to inform our pally to the Courts of Common Law, and are Correspondent, that a scheme of this kind has considerably resorted to for use and consultabeen long contemplated, and that so long as tion; and it will be absolutely needful that the eight or ten years ago we saw a prospectus of
removal be conducted so alertly and systema
tically that no more than one clear day should it in MS., the publication of which was delayed elapse during which the records should be infor a very cogent reason, which has now been accessible to the searcher.' Your Majesty's removed, and it is expected that it will shortly Commissioners of Works are desirous of remake its appearance under the powerful aus
ceiving possession of the Carlton Ride for pices of the Incorporated Law Society.—Ed.] made by this department to comply with their
building purposes, and every effort will be wishes and directions."
Examination at the Inns of Court.- Admission of Attorneys. EXAMINATION AT THE INNS OF Inn, and George Hunter Cary, Esq., Student COURT.
of the Inner Temple, Certificates of Honour,
as having passed the next best Examinations. Held at Lincoln's Inn Hall, on the 22nd, 23rd, And the Honourable Thomas Charles Bruce,
and 24th days of May, 1854. Student of the Inner Temple, a Certificate that The Council of Legal Education have he has satisfactorily passed a Public Examiawarded to
By Order of the Council, F. W. Everitt Stiffe, Esq., Student of Lin
(Signed) EDWARD Ryan. coln's Inn, a Studentship of Fifty Guineas per
(Chairman pro tem.) Annum, to continue for a period of Three Years.
Council Chamber, Lincoln's Inn,
May 29, 1854, John Westlake, Esq., Student of Lincoln's
ADMISSION OF ATTORNEYS.
To whom Articled, Assigned, &c.
W. J. Hollest, Farnham.
Road, Bedford Row.
B. R. Aldbam, King's Lynn.
James Crosland Fenton, Huddersfield. Chambers, Robert Phillips, 7, Clement's Inn; E. Mullins and R. Paddison, 13, Tokenhouse
6, South Square; and 62, Swinton Street Yard.
Richard Williams, Denbigh.
J. Starmer, Wainfleet.
Robert Thomas Head, Exeter.
, Hampstead Road; Lincoln's Inn Fields
E. E. Whitaker, 12, Lincoln's Inn Fields. Hopkinson, Joseph, 7, Goulden Terrace, R. Dufty, Nottingham; C. Butlin, NottingBarnsbury Road; and Nottingham
ham. Jones, Henry, Colchester
Francis Gibbs Abell, Colchester, Palmer, Gillies Charles, Grantham
William Ostler, Grantham. Parker, William, Greenwich
R. C. Parker, Greenwich. Rhodes, Arthur, Muswell Hill
H. Masterman, Bucklersbury. Rudyard, Frederick Colville, Macclesfield Thomas Parrott, Macclesfield. Voules, Henry Edmund, 12, Alfred Place, A. J. Lane, Essex Street; T. Clark, Dean's Alexander Square, Brompton
Court, Doctors' Commons. Welch, Charles, 4, Manchester Street, Argyle J. J. Brettell, 2, Staple Inn; T. M. Wilkin, 3, Square, Middlesex
Furnival's Inn. Wingfield, Henry G. Eden, Seething Wells, ' Jonathan Weymouth, 2, Temple Chambers, Kingston-on-Thames
Fleet Street Woodward, John Hawkes, 3, Harcourt Build-' ings, Inner Temple; and Pershore
W. Wilton Woodward, Pershore.
J. Stallard, Worcester.
Correspondence.- Renewal of Certificates.-Notes of the Week.
83 SELECTIONS FROM CORRE
On the last day of Michaelmas Term.
Fuller, Joseph Bury, 13, Irving Street, BirOur learned Correspondent “A Barrister," mingham. appears to be shocked that we do not go as fast and far as some of our contemporaries in NOTES OF THE WEEK. the march of Law Reform, and particularly in the "fusion of Law and Equity.” We will endeavour at an early opportunity to discuss QUEEN'S BENCH.-ABSENCE OF COUNSEL. this matter; and in the meantime think “A
The Lord Chief Justice has intimated, that Barrister" should be satisfied at the progress during the remainder of the Term the cases which has been recently made, by enabling a before the Court would be called on in their Court of Law to extract the evidence required order, and would be proceeded with, unless a without the expensive aid of a bill of discovery reasonable excuse were given for the absence in Chancery; and imposing the duty on Courts of counsel—such as being engaged in the conof Equity to decide a question of law without duct of a cause in another Common Law Court. the delay of sending a case to the other side But absence before a Parliamentary Committee of Westminster Hall.
would be no excuse. CHARGE FOR COPIES. A client requires of a solicitor a plain copy
TRINITY TERM EXAMINATION. of a deed for use, not being an attested copy. We understand that the Examiners for this Is the solicitor entitled to 4d. or 6d. per folio? Term are Sir Fortunatus Dwarris, Mr. E. S.
A ČLERK. Bailey, Mr. W. Strickland Cookson, Mr. E. [It is clear that the proper charge is 4d. per Lawford, and Mr. W. Sharpe. Notices of exfolio.-ED.]
amination were given by 115 Candidates, but
94 only have completed their testimonials. RENEWAL OF CERTIFICATES. Tuesday next, the 6th instant, is the day fixed
for the examination, and we hope the appliQueen's Bench.
cants are well prepared for the ordeal. On the 3rd of June.
In Trinity Term, last year, no less than 23 Preston, John, Kirkby, Lonsdale.
were rejected, and a similar number in Hilary
Term, this year. It seems generally admitted On the 16th day of June.
that, although some of the questions are occaBeaumont, Henry Barber, Putney.
sionally difficult, the majority of them ought Burrell
, Edward Montague, Compton Road, to be satisfactorily answered by any one enCanonbury.
titled to act as an attorney or solicitor. In the Cook, George, 17, Allen Street, Lambeth.
only case in which an appeal was argued beCorbett, John Fletcher, Worcester.
fore the three Judges under the Rule of Court, Cowley, George Molini, Nottingham.
it seems that not the slightest intimation was Elworthy Henry John Rice, of 22, Rox- given by the Judges that the examination was burgh Terrace, Haverstock Hill, and Hamp- conducted too strictly. On the contrary, if shire Terrace.
we are not mistaken, the Judges expect that Gregory, F. Maze, 16, Grove End Road, St. whatever leniency might be proper some years John's Wood; and Ramsgate.
ago, the time has arrived when a considerable Jackson, Francis, 16, Fludyer Street, West- amount of knowledge in the principles of the minster; and Grenada.
Law and the practice of the Courts should be Johnson, Ed.,jun., North Runcton, nr. Lynn. shown by the examination in order to entitle Johnson, Marcus Henry, Wallington.
the party to admission on the Roll. Jones, William, Manchester; Pantydkin; It is proved every Term, by the papers of and Wrexham.
many of the candidates, that ten or twelve of Looker, John, Oxford.
the fifteen questions in the departments of Monckton, Wm. Charles, 13, Crawley St.; Common Law, Equity, and Conveyancing, Thavies Inn; Buckingham St.; and Portsea.
can be satisfactorily answered; and therefore Partridge, Joseph Arthur, Mount Vernon, most of the instances of failure must be near Stroud.
owing, to sheer idleness and inattention Padmore, H., 21, Pomona Place, Ellbrook; to the business and duties of the attorSt. Helier's; and Eaton Cottages.
ney's office. It may be that in some cases Robertson, William, Liverpool.
the want of success has been occasioned by Rice, Henry Edridge, 24, Notting Hill Sq. illness, but these we conceive are few in num
Richardson, Henry Francis, 6, Westbourne ber. Let it be remembered, that in the due Park Place, Bayswater.
preparation for these examinations, the student
will acquire a solid amount of knowledge that Rolls Court.
will be of the greatest importance in his future 14th June. Barber, Wm. Hen., 25, Surrey St., Strand (postponed from Easter Term last).
Notes of the Week.-Superior Courts: Lord Chancellor.--Lords Justices. NISI PRIUS SITTINGS, QUEEN'S BENCH.
LAW APPOINTMENTS. Mr. Justice Wightman gave notice, that the Thomas Emerson Headlam, Esq., M.P., has Queen's Bench Sittings at Nisi Prius during been appointed Chancellor of the Diocese of the present term, would be held in the Lord Ripon, in the room of the Venerable ArchChancellor's Court.
deacon Headlam, deceased.
The Queen has been pleased to appoint, The Court will hear errors from the Exche- Alan Ker, Esq., to be Chief Justice for the quer the day after Term.
Island of Nevis. From the London Gazette of 30th May.
RECENT DECISIONS IN THE SUPERIOR COURTS.
NEW TRUSTEES ON DEATH AND ON LUNACY.
Lords Justices. Gann v. Gregory. May 3, 25, 1854.
In re Limond. May 26, 1854.
TRUSTEES' ACT, 1850. — APPOINTMENT OF WILL, - ERASURES AND ALTERATIONS, PROBATE WITH FACSIMILE-WILLS' ACT, Probate was granted by the Ecclesiastical
An order was made on petition in the lunacy Court with a facsimile will containing cer.
and under the 13 & 14 Vict. c. 60, for the tain erasures, alterations, inierlineations,
appointment of a new trustee in the stead and obliterations in respect of legacies, &c.,
of one of unsound mind, although not so therein contained: Held, that their de
found by commission, and also of another cision was conclusive as to the correctness
who had died-on the affidavit of two of of the probate, and that the testator must
the cestuis que trustent approring of the be concluded to have, prior to the execution,
petition and that the others were in India. have drawn his pen through the gift of the 13 & 14 Vict. c. 60, for the appointment
This was a petition in the lunacy and under such legacies, g-c., and an appeal was al- of a new trustee of a marriage settlement in the lowed from Vice-Chancellor Stuart and earceptions allowed to the Master's report in place of one of unsound mind, although not cluding such legacies.
so found by commission, and also in the place
of another who had died. Two of the cestuis This was an appeal from Vice-Chancellor que trustent who were in this country filed an Stuart. It appeared that the testator had left affidavit approving of the petition, and the a will written on three pages of paper, and that others were in India. on the second page there were some alterations, A. Gordon in support. erasures, and interlineations, and obliterations,
The Lords Justices made the order as prayed. which were set out in the facsimile of the will annexed to the administration granted by the Wheatley v. Barstow. May 29, 1854. Ecclesiastical Court to the defendant, Mrs.
EXAMINATION OF WITNESSES UNDER NEW Gregory. A reference had been directed, in this suit by the legatees, to the Master for an
DANGEROUS HEALTH. account of the legacies and annuities, and by his report a schedule was given thereof includ
An order was made to take the evidence orally ing certain which were struck through. Ex
according to the new practice in a suit inceptions were taken to this report, but were
stituted before the new Chancery Acts came overruled by the Vice-Chancellor Stuart upon
into operation, with the exception of one the authority of Cooper v. Bockett, 4 Moore,
of the witnesses and a defendant, who was P. C. 419, and the 1 Vict. c. 26, s. 21.
subject to a disease of the brain, and whose Bacon and W. P. Murray in support of the
life might be endangered by the excitement appeal, citing Mence v. Mence, 18 Ves. 348 ; consequent on an examination by counsel, Wigram and Berkeley, contrà.
and he was directed to be examined on in. The Lord Chancellor said, that although the
terrogatories, but without prejudice to the case of Cooper v. Bockett established that if it
right of either party to examine orally at were not shown an erasure was prior to the
the hearing execution of the will it must be presumed to In this suit, which had been instituted behave been made afterwards, and the will be fore the new Chancery Acts came into operaproved without the erasure, yet here the Eccle- tion, the Vice-Chancellor Stuart had refused a siastical Court had granted probate with all motion to take the evidence orally under the the erasures, &c., in the will, and their decision new practice instead of by interrogatories. was conclusive as to the correctness of the pro- Goldsmith in support of the appeal; Speed, bate. The testator must therefore be concluded for the other side, did not oppose, except as to to have originally intended to give certain lega- one of the witnesses, who was a defendant, cies, but to have, prior to the execution of the and had answered the original and the amended will, drawu his pen through the gift of such le-bill, but was subject to a disease of the brain, gacies, and to have not intended to bequeath the and whose life might be endangered by the exsame. The appeal would therefore be allowed. citement consequent on an examination by