Page images
PDF
EPUB

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

and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons, or any of them, to be made parties."

The Master of the Rolls held that the parties entitled upon the determination of the tenancy for life were sufficiently represented by the executors, and made the decree as sought.

Vice-Chancellor Kindersley. English v. Campbell. July 29, 1854.

SUBSTITUTED SERVICE OF SUBPOENA FOR

COSTS.

Vice-Chancellor Stuart.
Atlee v. Hooke. June 9, 1854.

291

PAYMENT OF LEGACY TO WIFE OF CONVICT.

-CONSENT OF CROWN.

A sum of money had been carried to the separate account of a married woman in an administration suit: Held, that she was entitled to be paid over the same on her receipt where her husband had been transported for life before the testatrix, under whose will she took, died, without the Attorney-General being served.

THE testatrix in this administration suit, by her will appointed the defendant, Mrs. Petley, one of her residuary legatees, and a sum of

count. This petition was now presented for
payment of the amount to her upon her re-
life before the death of the testatrix.
ceipt, her husband having been transported for

Bowyer, 3 P. Wms. 37.
Chichester, in support, cited Newsome v.

An order was made, that service of the sub-cash had been carried in the cause to her acpæna for costs, at the London address of the defendant and on his solicitors, should be deemed good, where it appeared the answer was sworn at Carlisle, and that communications left at such London address were duly forwarded to the defendant. THIS was a motion for an order, that service of the subpoena for costs in this suit at the address given by the defendant in London, and on his solicitors, might be deemed good service. It appeared that the answer had been sworn at Carlisle, and that communications left at the London address were duly forwarded to the defendant.

Freeling in support, referred to Danford v. Cameron, 8 Hare, 329, in which Hunter v. 6 Sim. 429, is cited.

[ocr errors]

The Vice-Chancellor, upon the authority of the case cited, made the order accordingly.

[blocks in formation]

Glasse and Bates in support, referred to the 15 & 16 Vict. c. 86, s. 31.

The Vice-Chancellor made the order, and without service on the Attorney-General.

Kane v. Reynolds. June 10, 1854.

CROWN.-RIGHT TO COSTS IN EQUITY. Held, that the rule at law, that the Crown neither pays nor receives costs, does not prevail in equity.

Upon the Solicitor of Treasury, therefore, taking possession of the personal estate of an intestate under letters of administration which were afterwards revoked and granted to the 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. IT appeared that upon the death of Mr. Thomas Kane, intestate, letters of administration were obtained by the Solicitor of the Treasury on behalf of the Crown, and he had received certain sums of money, part of the estate. The letters had afterwards been revoked and granted in July, 1853, to the plaintiff who now filed this claim for an account, the Solicitor of the Treasury. and for payment over of the sums received by

for the Solicitor of the Treasury, claimed to Bacon and Selwyn for the plaintiff; Wickens deduct the amount of his costs; Sheffield for other parties.

The Vice-Chancellor said, that under ordiThe Vice-Chancellor said, that the rule at law nary circumstances examinations should take that the Crown neither pays nor receives costs 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. & S. 394-7,' and that the question, the application would be granted-plaintiff was entitled to a decree for payment all parties interested to give evidence before the without such deduction. special examiner.

Which enacts, that "all witnesses to be examined orally under the provisions of this Act shall be so examined by or before one of the examiners of the Court, or by or before an examiner to be specially appointed by the Court."

Vice-Chancellor Wood.
Man v. Fuller. June 5, 1854.
LEGACY, WHETHER ADDITIONAL.—MISDE-

SCRIPTION.

A testator gave "the interest of two thousand to G. S., and at his death to his children,"

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

292

Superior Courts: V. C. Wood.

and in a subsequent part of the will the sum of 1,000l. "in addition to one thousand before mentioned." There were other legacies of "pounds sterling," and no sums of stock: Held, that G. S. was entitled to two thousand pounds sterling for life, and on his death the capital to go among his children, and to the one thousand pounds absolutely.

A QUESTION arose in this suit as to the construction of the will of a testator, whereby he gave "the interest of two thousand to Geo. Sergeant, and at his death to his children," and after giving two legacies of one thousand pounds, and one of two thousand pounds to certain parties named he gave the sum of one thousand pounds, to George Sergeant " in addition to one thousand before mentioned."

Rolt and Baggallay for the plaintiff; Eddis for the executor; C. M. Elderton, Messiter, Fane, J. Sidney Smith, H. Cadman Jones, and Reilly for other parties.

The Vice-Chancellor said, that as all the previous legacies were of pounds sterling, and there was no stock, the gift of the "2,000l." clearly meant pounds sterling, and gave an absolute gift of the capital to the children on their father's death. The gift of the additional legacy of 1,000l., referring to the former as 1,000l., did not raise an inference that the testator only intended to give 2,000l., nor did it cut down the former sum: Gordon v. Hoffmann, 7 Sim. 29, and he was therefore entitled to the 2,0007, for life, and to the other absolutely.

Bone v. Augier. July 6, 1854.

SUIT TO ENFORCE EQUITABLE MORTGAGE.

-SUBSTITUTED SERVICE OF COPY BILL ON PERSON IN POSSESSION.

Substituted service under the 15 & 16 Vict. c. 86, s. 5, of the copy bill to enforce an equitable mortgage, on the defendant's sonin-law who was in possession-the defendant being in New South Wales-was refused, where it was not shown he acted as the defendant's agent in respect of the property and his possession might be adverse. THIS was a motion for an order under the 15 & 16 Vict. c. 86, s. 5,' to substitute service of the copy bill to enforce an equitable mortgage on certain property belonging to the defendant, who was in New South Wales, upon his son-in-law, who was in possession.

Which enacts, that "the service upon any defendant of a printed copy of a bill of complaint, or of a claim in the said Court, shall be effected in the same manner as service of a writ of subpoena to appear to and answer a bill of complaint is now effected, save only that it shall not be necessary to produce the original bill or claim, which will be on the files of the Court; provided that the Court shall be at liberty to direct substituted service of such printed bill or claim, in such manner and in such cases as it shall think fit."

Shebbeare in support.

The Vice-Chancellor said, that as no authority was shown to the son-in-law to act as the defendant's agent with respect to the property, and his possession might be adverse, the motion must be refused.

Hemming v. East. July 12, 1854.

EVIDENCE.-AFFIDAVIT FILED AFTER CER-
TIFICATE OF CHIEF CLERK.

The Chief Clerk certified in favour of a deed
of assignment to the defendant, and that
he was entitled to set-off the amount of a
debt due from the plaintiffs, and thereby
assigned, against the purchase-money of
certain property bought by him: Held,
that an affidavit afterwards filed on behalf
of the plaintiffs, showing the assignment to
be a mortgage and discharged, could not be
received on further consideration upon the
certificate, but with leave to counsel to state
the facts, in order to an inquiry if neces-

sary.

IN this suit which now came on for further consideration upon the certificate of the Chief Clerk finding in favour of a deed of assignment to the defendant, and that he was entitled to set-off the amount of a debt due from the plaintiffs, and thereby assigned, against the purchase money of certain property bought by him, an affidavit was filed on behalf of the plaintiffs, showing that the assignment amounted to a mortgage and had been discharged.

The Vice-Chancellor said, that the affidavit was filed too late and could not be admitted, but that the facts might be stated by counsel, in order that an inquiry might be directed, if proper.

Rolt and Jolliffe for the plaintiffs; Willcock, and Deere Salmon for the defendants.

Clarke v. Gill. July 24, 1854.

EXAMINATION OF WITNESSES IN LONDON. -RIGHT OF MEDICAL MAN ΤΟ COMPENSATION FOR LOSS OF TIME.

Held, that a medical man whom it was proposed to examine before the examiner, was entitled to compensation for loss of time, although he resided in Bryanstone Square and within the bills of mortality.

On this motion for an injunction, an order had been made for the examination of witnesses, but it appeared that a medical gentleman, whom it was proposed to examine, refused to be sworn until payment was made as compensation for his loss of time.

Roxburgh now applied for the direction of the Court, and stated the witness resided in Bryanstone Square and within the bills of mortality, referring to the 5 Eliz. c. 9, s. 12,

The Vice-Chancellor said, that the witness was entitled to receive compensation before being sworn.

[merged small][merged small][merged small][merged small][ocr errors]

RESULTS OF THE SESSION OF 1854.

J

In the first place it may not be uninteresting briefly to advert to the record of her Majesty's Speech on opening the late Session of Parliament, particularly in regard to the measures which were then intended to be submitted to Parliament. They were, 1st, the Bills for transferring from the Ecclesiastical to the Civil Courts the cognizance of Testamentary and of Matrimonial Causes ;-2nd, for giving increased efficiency to the Superior Courts of Law;

3rd, the Enactments relating to the Settlement of the Poor, in order more effectually to promote the freedom of Labour in unison with the interests of Capital;—4th, Amendments in the Laws relating to the representation of the People, together with Measures for preventing Bribery and Corrupt Practices at Elections.

uration of

ACCORDING to custom, we proceed to sum up the results of the Session of Parliament which closed on the 12th instant. In the first great outbreak of Law Reform, twenty-four years ago, this work was commenced. It has ever since been our duty to bring under the notice of the Profession, week by week, the projects which have been devised or completed, not only by the distinguished personage who led the way, but the numerous corps which followed in his train. At that time the only periodical devoted to legal subjects was the Law Magazine, which was edited by a young member of the Bar of great ability, and published quarterly. It appeared to the originators of the Legal Observer that the time had 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 Administ though chiefly devoted to their interests, the Law have con included within its scope a review of all attention ...nued to occupy your matters, whether parliamentary or judicis, from the improvements you have made in , and I anticipate great benefit in any respect affecting the D rotession at the Forms of Procedure in the Superior large. It was especially designed to call Courts of Law." immediate attention to all projected altera- removal of the last legislative restriction After observing on the 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 other. We have again, therefore, to execute our a hope was expressed, "that it might and of Corrupt Practices at Elections, and annual 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. XLVIII. No. 1,380.

[ocr errors]

,

R

294

Results of the Session of 1854.

usefulness, and to extend the renown of this great seminary of learning."

Classifying the Bills which have passed both Houses and received the Royal Assent, we may notice-

The other Act extending the jurisdiction of the Court of Chancery of the County Palatine of Lancaster against persons residing out of its jurisdiction, and transferring appeals to the Lords Justices in Chancery instead of the Judges of Assize.

II. Equity. In this department we have to notice only two Acts,-viz., the Court of Chancery Act, "to make further provision for the more speedy and efficient 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, for it effects improvements not only in the Forms of procedure, but in the jurisdiction of the Superior Courts of Common Law and the means it affords for obtaining justice, facilitating and expediting the proceedings and diminishing the expense of the suitors. Thus the Act will enable the Judge to try questions of fact, by consent, without a jury;-to order cases of complicated accounts to be forthwith referred to arbitration ;-the parties also may be examined before trial; and a full discovery of documents obtained ;-trials may be adjourned-affirmations may be received instead of oaths;-restrictions relaxed in the cross-examination of witnesses and the contradiction of a party's own witness ;-proof of handwriting by comparison admitted ;documents insufficiently stamped receivable on payment of duty and penalty ;-appeals on refusal of a new trial;-oral examination of witnesses on motions and summonses; power to issue injunctions ;-the examination of judgment debtors to discover their assets; and to attach or take the same in execution. These and other amendments of the Law place this Act in the foremost rank of the successful labours of the

[ocr errors][merged small][merged small]

Under this head of Com also be noticed the Witnesses' Act, u which witnesses in Ireland or Scotland may

III. The Bankruptcy Act is a very small instalment of the alterations suggested by the Commissioners in their recent report; whilst the continuance of the office of broker is in opposition to their recommendation, and of the evidence taken before them. The present Act enables the Lord Chancellor to diminish the expense of the establishment by not filling up the present or future vacancies; and it provides that a petitioning trader must show that his assets amount to 1507.

IV. A short act has also passed for taking evidence in the Ecclesiastical Courts viva voce; and an Act authorising the appointment of Commissioners to administer Oaths and take Declarations, &c., relating to proceedings in the Admiralty Court, and providing that the Commissioners for administering oaths in Chancery may also take affidavits, declarations, &c., in proceedings in the Admiralty Court.

V. In regard to the Law of Property and Conveyancing, several Bills have received the royal assent. 1. The Real Estate Charges Act, directing that in case of iny the heir shall not be entitled to testa

[ocr errors]
[ocr errors]

have the incumbrances on the estate paid out of the personal property; and where testator makes a will and directs his estate to be sold, and does not otherwise direct, the land shall be deemed to be personal

be compelled to attend and give evidence in
England, and witnesses here to give evi-
dence in the Courts there; but reserving
the power of examining them before Com-
missioners. In this department may also
be classed the Act for registering Bills of estate.
Sale of Personal Property, like Warrants
of Attorney, in the Court of Queen's Bench.
These are the three Acts relating to the
course of proceeding in the Superior Courts
of Common Law; but to which may be
added, as affecting the local Courts, the
Act for extending the Right of Appeal in
County Courts to cases heard by consent in
those Courts; and the Manchester Court
of Record Act enlarging the Jurisdiction of
the Court and amending its practice.

2. The Act to remove doubts concerning the due Acknowledgment of Deeds by Married Women, whereby the deeds already acknowledged are rendered valid, although one or both of the Commissioners may have been interested in the transaction, with certain exceptions in cases wherein proceedings are pending; but authorising the Court of Common Pleas to make rules for preventing Commissioners who are interested from taking acknowledgments. 3. 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 Turnpike Trusts. 7. The total repeal of the Usury Laws, saving transactions previous to the Act, providing that the legal or current rate of interest now payable on any contract shall mean the same as if this Act had not passed; and that the Act shall not affect the Law of Pawnbrokers.

VI. The Act to amend the Law relating to the Stamp Duties, whereby a new scale is fixed for inland and foreign bills and notes; also on leases for terms exceeding 35 years, regulated by the amount of rent, and on duplicates or counterparts; with provisions as to adhesive stamps on bills and bankers drafts ;-repealing the exemp tion from receipt stamp duty on letters of acknowledgment; -directing that deeds made for several valuable considerations shall be chargeable in respect of each;—and indemnifying parties for omitting to state the full purchase money in assignments on the sale of good will.

VII. The Consolidation and Amendment of the Law relating to Merchant Shipping is a great and important work. The Act extends to upwards of 200 folio pages, and the analysis occupies upwards of 20 more. VII. Regarding the Criminal Law, the Acts which have passed relate to the removal of prisoners, the prosecution of youthful offenders, and the suppression of gaming-houses.

IX. Several other Acts of great public importance, have also passed, viz., the Board of Health, Metropolitan Sewers, and Metropolitan Burial Acts.

X. The only Act relating to the Law of Parliament is that for consolidating and amending the Laws relating to Bribery, Treating, and undue influence at Elections of Members of Parliament.

In this brief summary of the general scope of the several Statutes of the Session, we have necessarily omitted many details, and perhaps have not sufficiently explained all the prominent points, but some of the Acts, so far as they are important to the practitioner, have already been fully set forth-the rest will speedily follow; and during the vacation such notes and annotations will be supplied as may be deemed

useful.

Income Tax, cc. 17, 24, pp. 46, 134, ante.
Commons' Inclosure, c. 9, p. 64.
County Court Extension, c. 16, 121.
Registration of Bills of Sale, c. 36, p. 216.
Warwick Assizes, c. 35, p. 218.

Attendance of Witnesses, c. 34, p. 235.
Evidence in Ecclesiastical Courts, c. 47, p.

254.

Commons' Inclosure (No. 2), c. 48, p. 254.
Cruelty to Animals, c. 60, p. 275.
Ecclesiastical Jurisdiction, c. 65, p. 276.
Highway Rates, c. 52, p. 276.
Turnpike Trusts' Arrangements, c. 51, p. 276.

ADMIRALTY COURT. 17 & 18 VICT. c. 78. Commencement of Act, 1st August, 1854; s. 2.

Judge of Admiralty may appoint solicitors and notaries to administer oaths, &c.;

s. 3.

stamp of 11.; s. 4.
Commissioner's appointment to bear a

commission; s. 5.
Personal answers may be taken without a

Commission for examination of witnesses

dispensed with, and examiners empowered to administer oaths; s. 6.

Answers, affidavits, &c., how to be sworn and taken in England and Wales; s. 7.

Answers, affidavits, &c., how to be sworn and taken out of England and Wales; s. 8. Penalty for false swearing, &c.; s. 9.

Penalty for forging signature or seal of under this Act; s. 10. Judge, &c., empowered to administer oaths

Power to appoint persons under special circumstances to administer oaths, &c.; s.

11.

Power of Judge to issue commissions as heretofore, to administer oaths, &c.; s. 12. Power to Court to proceed by way of monition; s. 13.

Her Majesty may by order in Council their collection by stamps; s. 14. vary, alter, or abolish fees, and provide for

After such order fees not to be received

in money, but by means of stamps; s. 15.

Commissioners of Inland Revenue to give the necessary directions as to the stamps, and to keep separate accounts; s. 16.

« EelmineJätka »