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Superior Courts : .V. C. Kindersley.-V. C. Stuart.-7. C. Wood.

291 and in such cases it shall not be necessary to

Vice-Chancellor Stuart. make the persons beneficially interested under Atlee y. Hooke, June 9, 1854. the trusts parties to the suit; but the Court may, upon consideration of the matter, on the PAYMENT OF LEGACY TO WIFE OF CONVICT. hearing, if it shall so think fit, order such persons, or any of them, to be made parties.”

A sum of money had been carried to the seThe Master of the Rolls held that the parties

parate account of u married woman in an entitled upon the determination of the tenancy

administration suit : Held, that she was for life were sufficiently represented by the

entitled to be paid over the same on her executors, and made the decree as sought.

receipt where her husband had been transported for life before the testatrix, under

whose will she took, died, without the At. Uice-Chancellor Kindersley.

torney-General being served. English v. Campbell. July 29, 1854. The testatrix in this administration suit, by SUBSTITUTED SERVICE OF SUBPENA FOR

her will appointed the defendant, Mrs. Petley, one of her residuary legatees, and a sum of

cash had been carried in the cause to her acAn order was made, that service of the sub

pæna for costs, at the London address of count. This petition was now presented for the defendant and on his solicitors, should payment of the amount to her upon her rebe deemed good, where it appeared the an- life before the death of the testatrix.

ceipt, her husband having been transported for swer was sworn at Carlisle, and that communications left at such London address

Chichester, in support, cited Newsome v.

Bowyer, 3 P. Wms. 37. were duly forwarded to the defendant.

The Vice-Chancellor made the order, and This was a motion for an order, that service without service on the Attorney-General. of the subpæna for costs in this suit at the ad. dress given by the defendant in London, and Kane v. Reynolds. June 10, 1854. on his solicitors, might be deemed good service. It appeared that the answer had been sworn at Carlisle, and that communications left

Held, that the rule at law, that the Crown at the London address were duly forwarded to

neither pays nor receives costs, does not the defendant.

prevail in equity. Freeling in support, referred to Danford v.

Upon the Solicitor of Treasury, therefore, takCameron, 8 Hare, 329, in which Hunter v. ing possession of the personal estate of an in., 6 Sim. 429, is cited.

testate under letters of administration which The Vice-Chancellor, upon the authority of

were afterwards revoked and granted to the the case cited, made the order accordingly.

next of kin, held that he was not entitled to deduct the amount of his costs of a suit by

the next of kin to recover the property. In re Forster's Trust. Aug. 2, 1954. It appeared that upon the death of Mr. EXAMINATION

BEFORE Thomas Kane, intestate, letters of administraSPECIAL EXAMINER.

tion were obtained by the Solicitor of the An application was granted for the issue of a Treasury on behalf of the Crown, and he had

subpæna for the examination of witnesses received certain sums of money, part of the before the special examiner, in the countics estate. The letters had afterwards been reof Northumberland and Durham, where the voked and granted in July, 1853, to the plainparties and their solicitors were resident,

tiff who now filed this claim for an account, This was an application for the issue of

and for payment over of the sums received by subpæna for the examination of witnesses be the

Solicitor of the Treasury. fore the special examiner in the counties of for the Solicitor of the Treasury, claimed to

Bacon and Selwyn for the plaintiff; Wickens Northumberland and Durham.

Glasse and Bates in support, referred to the deduct the amount of his costs ; Sheffield for 15 & 16 Vict. c. 86, s. 31.'

other parties. The Vice-Chancellor said, that under ordi- that the Crown neither pays nor receives costs

The Vice-Chancellor said, that the rule at law nary circumstances examinations should take place in London, but that as the parties and did not exist in equity; Attorney-General v. their solicitors were resident

in the counties in Ashburnham, 1 Sim. & §. 394-7,' and that the question, the application would be granted plaintiff was entitled to a decree for payment

without such deduction. all parties interested to give evidence before the special examiner.

Vice-Chancellor umaod. Which enacts, that “all witnesses to be

Man v. Fuller. June 5, 1854. examined orally under the provisions of this LEGACY, WHETHER ADDITIONAL.-MISDEAct shall be so examined by or before one of the examiners of the Court, or by or before

A testator gave " the interest of two thousand an examiner to be specially appointed by the to G. S., and at his death to his children,' Court.”

| And se: Moggridge v. Thackwell, 7 Ves. 88.








Superior Courts: V. C. Wood. and in a subsequent part of the will the Shebbeare in support. sum of 1,0001. in addition to one thou- The Vice-Chancellor said, that as no authosand before mentioned.There were other rity was shown to the son-in-law to act as the legacies of pounds sterling," and no defendant's agent with respect to the property, sums of stock : Held, that G. S. was en- and his possession might be adverse, the motitled to two thousand pounds sterling for tion must be refused. life, and on his death the capital to go among his children, and to the one thousand pounds absolutely.

Hemming v. East. July 12, 1854.

EVIDENCE. AFFIDAVIT FILED AFTER CER A QUESTION arose in this suit as to the construction of the will of a testator, whereby

The Chief Clerk certified in favour of a deed he gave "the interest of two thousand to Geo. Sergeant, and at his death to his children,”

of assignment to the defendant, and that and after giving two legacies of one thousand

he was entitled to set-off the amount of a

debt due from the plaintiffs, and thereby pounds, and one of two thousand pounds to certain parties named he gave the sum of one

assigned, against the purchase-money of thousand pounds, to George Sergeant " in ad

certain property bought by him: Held, dition to one thousand before mentioned."

that an affidavit afterwards filed on behalf Rolt and Baggallay for the plaintiff; Eddis

of the plaintiffs, showing the assignment to for the executor; C. M. Elderton, Messiter,

be a mortgage and discharged, could not be

received on further consideration upon the Fane, J. Sidney Smith, H. Cadman Jones, and Reilly for other parties.

certificate, but with leave to counsel to state The Vice-Chancellor said, that as all the pre

the facts, in order to an inquiry if neces

sary. vious legacies were of pounds sterling, and there was no stock, the gift of the “ 2,0001."

In this suit which now came on for further clearly meant pounds sterling, and gave an ab- consideration upon the certificate of the Chief solute gift of the capital to the children on Clerk finding in favour of a deed of assign. their father's death. The gift of the additional ment to the defendant, and that he was entitled legacy of 1,0001., referring to the former as to set-off the amount of a debt due from the 1,0001., did not raise an inference that the tes- plaintiffs, and thereby assigned, against the tator only intended to give 2,0001., nor did it purchase money of certain property bought by cut down the former sum: Gordon v. Hoffmann, him, an affidavit was filed on behalf of the 7 Sim. 29, and he was therefore entitled to the plaintiffs, showing that the assignment amount2,0001, for life, and to the other absolutely.

ed to a mortgage and had been discharged.

The Vice-Chancellor said, that the affidavit Bone v. Augier. July 6, 1854.

was filed too late and could not be admitted,

but that the facts might be stated by counsel, SUIT TO ENFORCE EQUITABLE MORTGAGE. in order that an inquiry might be directed, if


Rolt and Jolliffe for the plaintiffs ; Willcock, Substituted service under the 15 8. 16 Vict. and Deere Salmon for the defendants.

c. 86, s. 5, of the copy bill to enforce an
equitable mortgage, on the defendant's son-
in-law who was in possession-the defend.

Clarke v. Gill. July 24, 1854.
ant being in New South Wales-was re- EXAMINATION OF WITNESSES IN LONDON.
fused, where it was not shown he acted as

TO CON the defendant's agent in respect of the pro- PENSATION FOR LOSS OF TIME. perty and his possession might be adverse.

Held, that a medical man whom it was proThis was a motion for an order under the

posed to examine before the examiner, was 15 & 16 Vict. c. 86, s. 5,' to substitute service entitled to compensation for loss of time, of the copy bill to enforce an equitable mort- although he resided in Bryanstone Square gage on certain property belonging to the de- and within the bills of mortality. fendant, who was in New South Wales, upon his son-in-law, who was in possession.

On this motion for an injunction, an order had been made for the examination of wit

nesses, but it appeared that a medical gentleWhich enacts, that “the service upon any man, whom it was proposed to examine, redefendant of a printed copy of a bill of com- fused to be sworn until payment was made as plaint, or of a claim in the said Court, shall compensation for his loss of time. be effected in the same manner as service of a

Roxburgh now applied for the direction of writ of sul;æna to appear to and answer a bill the Court, and stated the witness resided in of complaint is now effected, save only that it Bryanstone Square and within the bills

of morshall not be necessary to produce the original tality, referring to the 5 Eliz. c. 9, 6. 12. bill or claim, which will be on the files of the The Vice-Chancellor said, that the witness Court; provided that the Court shall be at was entitled to receive compensation before liberty to direct substituted service of such being sworn. printed bill or claim, in such manner and in such cases as it shall think fit."






The Legal Observer, ,





In the first place it may not be uninter

esting briefly to advert to the record of her ACCORDING to eustom, we proceed to Majesty's Speech on opening the late Sessum up the results of the Session of Par- sion of Parliament, particularly in regard liament which closed on the 12th instant. to the measures which were then intended In the first great outbreak of Law Reform, to be submitted to Parliament. They were, twenty-four years ago, this work was com Ist, the Bills for transferring from the Ecmenced. It has ever since been our duty clesiastical to the Civil Courts the cogto bring under the notice of the Profession, nizance of Testamentary and of Matrimoweek by week, the projects which have nial Causes ;-2nd, for giving increased been devised or completed, not only by the efficiency to the Superior Courts of Law; distinguished personage who led the way, -3rd, the Enactments relating to the Setbut the numerous corps which followed in tlement of the Poor, in order more effectuhis train. At that time the only periodical ally to promote the freedom of Labour in devoted to legal subjects was the Law Ma- unison with the interests of Capital ;-4th, gazine, which was edited by a young mem- Amendments in the Laws relating to the ber of the Bar of great ability, and published representation of the People, together with quarterly. It appeared to the originators Measures for preventing Bribery and Corof the Legal Observer that the time had rupt Practices at Elections. arrived for establishing a medium of com- On closing the Session last Saturday, munication between Attorneys and Solicitors her Majesty said :-"I rejoice to perceive throughout the kingdom ; but the work, that Amendments in the Adminion..... though chiefly devoted to their interests, the Law have cont...

savuration of included within its scope a review of all attention

dued to occupy, your matters, whether parliamentary or judicin! -evil, and I anticipate great benefit in any respect affecting the profession at the forms of Procedure in the Superior

-, from the improvements you have made in large. It was especially designed to call Courts of Law.” After observing on the immediate attention to all projectea altcra- removal of the last legislative restriction tions in the Law and Practice, and to upon the use of foreign vessels, her Majesty afford a channel of communication for con- says :-"You have also revised and consoveying the views of the members of the lidated the whole Statute Law relating to Profession to their brethren, and discuss- Merchant Shipping." ing the merits of the various proposed states that a willing assent was given to

The Speech also changes which rapidly succeeded each the measure for the prevention of Bribery ther.

and of Corrupt Practices at Elections, and We have again, therefore, to execute our a hope was expressed," that it might andual task, and recall to the attention of prove effectual in the correction of an evil oar readers, in a collective form, the seve- which, if unchecked, threatened to fix a ral amendments or alterations of the Law deep stain upon our representative system.” which have taken place during the last The Act for the better government of the seven months, the details of which have University of Oxford, and the improvement been laid seriatim before them, and from of its constitution, was also noticed, “trusttime to time discussed in these pages, ing that it will tend greatly to increase the VOL. XLVII. No. 1,380.



Results of the Session of 1854.

usefulness, and to extend the renown of this II. Equity. In this department we have great seminary of learning."

to notice only two Acts,- viz., the Court Classifying the Bills which have passed of Chancery Act, “to make further proboth Houses and received the Royal Assent, vision for the more speedy and efficient we may notice

despatch of business,” by appointing addiI. The most important Act of the Ses- tional temporary clerks and accountants to sion which received her Majesty's personal wind up the matters depending in the resanction on the 12th instant,—the Second maining Masters' Offices, and in case of Common Law Procedure Act. The Speech need to call in the aid of the Solicitor to suggested to the Queen does not sufficiently the Suitors' Fund. characterise the full scope of the measure,

The other Act extending the jurisdiction for it effects improvements not only in the of the Court of Chancery of the County Forms of procedure, but in the jurisdiction Palatine of Lancaster against persons reof the Superior Courts of Common Law siding out of its jurisdiction, and transferand the means it affords for obtaining ring appeals to the Lords Justices in Chanjustice,-facilitating and expediting the pro- cery instead of the Judges of Assize. ceedings and diminishing the expense of III. The Bankruptcy Act is a very small the suitors. Thus the Act will enable the instalment of the alterations suggested by Judge to try questions of fact, by consent, the Commissioners in their recent report; without a jury ;-to order cases of compli- whilst the continuance of the office of cated accounts to be forthwith referred to broker is in opposition to their recomarbitration ;-the parties also may be exa- mendation, and of the evidence taken bemined before trial ; and a full discovery of fore them. The present Act enables the documents obtained ;-trials may be ad- Lord Chancellor to diminish the expense of journed ;---affirmations may be received in the establishment by not filling up the prestead of oaths ;-restrictions relaxed in the sent or future vacancies ; and it provides cross-examination of witnesses and the con- that a petitioning trader must show that his tradiction of a party's own witness ;--proof assets amount to 1501. of handwriting by comparison admitted ;- IV. A short act has also passed for takdocuments insufficiently stamped receivable ing evidence in the Ecclesiastical Courts on payment of duty and penalty ;--appeals vivá voce; and an Act authorising the apon refusal of a new trial ; -- oral examination pointment of Commissioners to administer of witnesses on motions and summonses ;- Oaths and take Declarations, &c., relating power to issue injunctions ;--the examina- to proceedings in the Admiralty Court, and tion of judgment debtors to discover their providing that the Commissioners for adassets; and to attach or take the same in ministering oaths in Chancery may also execution. These and other amendments take affidavits, declarations, &c., in proof the Law place this Act in the fore- ceedings in the Admiralty Court. most rank of the successful labours of the V. In regard to the Law of Property and

Conveyancing, several Bills have received Session.

mon Law, may the royal assent. ]. The Real Estate Under this head of Com...

under Charges' Act, directing that in case of inalso be noticed the Witnesses' Act, mm

bony the heir shall not be entitled to which witnesses in Ireland or Scotland may testu be compelled to attend and give evidence in have the incumbrances on the estate paid England, and witnesses here to give evi- out of the personal property; and where dence in the Courts there; but reserving Testator makes a will and directs his estate the power of examining them before Com- to be sold, and does not otherwise direct, missioners. In this department may also the land shall be deemed to be personal be classed the Act for registering Bills of estate. 2. The Act to remove doubts conSale of Personal Property, like Warrants cerning the due Acknowledgment of Deeds of Attorney, in the Court of Queen's Bench. by Married Women, whereby the deeds al.

These are the three Acts relating to the ready acknowledged are rendered valid, alcourse of proceeding in the Superior Courts though one or both of the Commissioners of Common Law; but to which may be may have been interested in the transaction, added, as affecting the local Courts, the with certain exceptions in cases wherein Act for extending the Right of Appeal in proceedings are pending; but authorising County Courts to cases heard by consent in the Court of Common Pleas to make rules those Courts ; and the Manchester Court for preventing Commissioners who are inof Record Act enlarging the Jurisdiction of terested from taking acknowledgments. 3. the Court and amending its practice, Several Acts for the Inclosure of Lands

Results of the Session of 1854.–New Statutes effecting. Alterations in the Law. 295 have been passed. 4. Also an Act to Faci- NEW STATUTES EFFECTING ALTElitate the Sale and Transfer of Incumbered RATIONS IN THE LAW. Estates in the West Indies, under which three Commissioners are to be appointed, the chief to reside in England, and power the present Volume, with an Analysis to each,

The Acts of the present Session printed in is given to appoint local Commissioners. 5. The Management of Episcopal and Ca- will be found at the following pages :pitular Estates. 6. The Arrangement of Income Tax, cc. 17, 24, pp. 46, 134, ante. Turnpike Trusts. 7. The total repeal of Commons' Inclosure, c. 9, p. 64. the Usury Laws, saving transactions pre- County Court Extension, c. 16, 121. vious to the Act, providing that the legal Registration of Bills of Sale, c. 36, P. 216. or current rate of interest now payable on

Warwick Assizes, c. 35, p. 218. any contract shall mean the same as if this

Attendance of Witnesses, c. 34, p. 235. Act had not passed; and that the Act shall not affect the Law of Pawnbrokers.

Evidence in Ecclesiastical Courts, c. 47, p. VI. The Act to amend the Law relating

254. to the Stamp Duties, whereby a new scale

Coinmons' Inclosure (No. 2), c. 48, p. 254. is fixed for inland and foreign bills and Cruelty to Animals, c. 60, p. 275. notes; also on leases for terms exceeding Ecclesiastical Jurisdiction, c. 65, p. 276. 35 years, regulated by the amount of rent, Highway Rates, c. 52, p. 276. and on duplicates or counterparts ; with Turnpike Trusts' Arrangements, c. 51, p. 276. provisions as to adhesive stamps on bills and bankers drafts ;---repealing the exemp.

ADMIRALTY COURT. tion from receipt stamp duty on letters of acknowledgment; - directing that deeds

17 & 18 Vict, c. 78. made for several valuable considerations

Commencement of Act, 1st August, shall be chargeable in respect of each ;-and 1854; s. 2. indemnifying parties for omitting to state

Judge of Admiralty may appoint solicithe full purchase money in assignments on tors and notaries to administer oaths, &c.; the sale of good will.

VII. The Consolidation and Amendment Commissioner's appointment to bear a of the Law relating to Merchant Shipping stamp of ll. ; s. 4. is a great and important work. The Act

Personal answers may be taken without a extends to upwards of 200 folio pages, and commission; s. 5. the analysis occupies upwards of 20 more.

Commission for examination of witnesses VII. Regarding the Criminal Law, the dispensed with, and examiners empowered Acts which have passed relate to the re- to administer oaths ; s. 6. moval of prisoners, the prosecution of Answers, affidavits, &c., how to be sworn youthful offenders, and the suppression of and taken in England and Wales ; s. 7. gaming-houses.

Answers, affidavits, &c., how to be sworn IX. Several other Acts of great public and taken out of England and Wales ; s. 8. importance, have also passed, viz., the

Penalty for false swearing, &c. ; s. 9. Board of Health, Metropolitan Sewers, and Penalty for forging signature or seal of Metropolitan Burial Acts.

Judge, &c., empowered to administer oaths X. 'The only Act relating to the Law of under this Act; s. 10. Parliament is that for consolidating and Power to appoint persons under special amending the Laws relating to Bribery, circumstances to administer oaths, &c. ; s. Treating, and undue influence at Elections u. of Members of Parliament.

Power of Judge to issue commissions as In this brief summary of the general heretofore, to administer oaths, &c. ; s. 12. scope of the several Statutes of the Session, Power to Court to proceed by way of we have necessarily omitted many details, monition ; s. 13. and perhaps have not sufficiently explained Her Majesty may by order in Council all the prominent points, but some of the vary, alter, or abolish fees, and provide for so

their collection by stamps ; s. 14. practitioner, have already been fully set After such order fees not to be received forth--the rest will speedily follow; and in money, but by means of stamps ; s. 15. during the vacation such notes and anno

Commissioners of Inland Revenue to give tations will be supplied as may be deemed the necessary directions as to the stamps, useful.

and to keep separate accounts ; s. 16.

s. 3.

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