« EelmineJätka »
FOR MONEY LENT AND
PAID TO USE.
STATUTE OF FRAUDS.
Superior Courts : Queen’s Bench.-Common Pleas.-Analytical Digest of Cuses. 227 tices. At the adjourned sessions notice
Court of Common Pleas. was given to rescind this vote at the ensu
Pearce v. Blagrave. Jan. 11, 1855. ing sessions, which was accordingly done by a large majority: A rule was made ab- ACTION solute for a mandamus on the treasurer to DEFENDANT'S pay the annuity. Quære, whether the order was bad for not spe- On an execution being put in the rooms of
cifying whether the incompetency arose the plaintiff's tenant, he requested the from age or from infirmity, and also that
plaintiff to pay it out, and on his refusing, it was made too late?
the brother-in-law (the defendant) was sent This was a rule nisi for a mandamus on the
for, who said to the plaintiff, “ If you will defendants to pay to the Rev. Wm. Hildyard the
pay the money for me, I will pay you again amount of an annuity, which had been granted
on Monday:" Held sufficient to support to him under the 4 Geo. 4, c. 64, s. 32,on resign
an action for money lent, and for money ing the office of chaplain to the House of Correc
paid to the defendant's use,
and a rule was tion at Beverley. It appeared that he was ap
refused to set aside the verdict for the pointed in 1817, and had written a letter in plaintiff. December, 1852, resigning the appointment, This was a motion to set aside the verdict and that a successor had been appointed. He for the plaintiff, and for a new trial of this afterwards applied for a retiring pension under action, which was brought for money lent, and the above Statute, and an order was made ac- for money paid to the defendant's use. It apcordingly for an annuity of 601, by a majority peared on the trial before Jervis, L.C.J., at the of 9 to 7 justices. It, however, appeared that last Guildhall sittings, that a Lieutenant Sayer at the adjourned sessions, notice was given had taken rooms in the plaintiff's house, and to rescind this order, which was done by a that upon an execution having been put in at large majority, whereupon this rule had been the suit of his tailor, he had requested the obtained.
plaintiff to pay it out, and on his refusal the Sir F. Thesiger, Watson, and Perronet defendant, who was his brother-in-law, was Thompson showed cause, on the ground that sent for. It appeared that he said to the plainthe resignation was not caused by confirmed tiff, “ If you will pay the money for me, there sickness, age, or infirmity, but because he was is a good fellow, I will pay you again on Monin pecuniary difficulties, that the order did not day.” An objection was overruled to this beset out whether the incompetency arose from ing received in evidence as insufficient under age or infirmity, and that it had been made too the Statute of Frauds, and the plaintiff oblate.
tained a verdict. Bramwell and Hawkins in support.
Byles, S.L., in support. The Court said, that as there was some doubt The Court said, that the money was adthe rule would be made absolute for a manda- vanced by the plaintiff for the defendant, and mus, in crder to have the questions decided. the rule must be refused.
ANALYTICAL DIGEST OF CASE S,
SELECTED AND CLASSIFIED.
SCOTCH APPEALS TO HOUSE OF are accidentally burnt down, he is bound to LORDS.
rebuild them. APPEAL.
A subsequent taker from the first purchaser See Cross Appeals.
will be similarly bound, if it appear that the
obligation was intended to run with the land CONTRACT.
and form a real burden on the property. Clark Duties arising by law distinguished from v. Glasgow Assurance Company, 1 Macq. 668. those by contract.-Where the law casts a duty
CROSS-APPEALS. on a man which, without fault on his part, he is unable to perform, the law will excuse him
Remarks of the Lord Chancellor as to the for non-performance.
time limited for bringing cross-appeals to the But where a man, by his own contract, House of Lords. Clark v. Glasgow Assurance binds himself to do a thing, he is bound to do Company, 1 Macq. 668. it
, if he can—notwithstanding any accidentbecause be ought to have guarded by his contract against it.
Power to alter order of succession and imClark v. Glasgow Assurance Company, 1 Macq. 668. 1
pose new fetters.—Lord Rutherford's Act.The opinion of Lord Justice Clerk Macqueen,
that a person holding an estate under an enAnd to rebuild on accidental fire.— Real bur. tailing deed, is at liberty to do everything with den.- Where a conveyance by a feu-contract it which he is not by the instrument expressly contains a covenant that the purchaser shall interdicted from doing, held to be erroneous. keep the premises in repair,-if the premises The instrument under which he takes,
HEIR OF ENTAIL.
COVENANT TO REPAIR.
Analyticul Digest of Cases : Scotch Appeals to House of Lords. though not in all respects perfect, will be the mother of a bastard, instead of marrying the measure of his dominion, and the law of his father of the bastard, marries another man, who enjoyment. Hence, he cannot alter the order dies,-she can afterwards, by marrying the of succession or impose new fetters on those father of the bastard, render the bastard legitiwho succeed him.
mate from the date of her second marriage, but Where an heir of entail has erroneously not from the date of the bastard's birth. made up his title under an instrument which Semble, Kerr v. Malcolm, Sec. Ser., vol. 2, he subsequently finds to be invalid, he is not p. 764, approved of by the House. thereby precluded from instituting proceedings A child born a bastard in a foreign country to have it set aside, and to have the proper in- not recognising the doctrine of legitimation per strument established. Menzies v. Menzies (the subsequens matrimonium, is an alien, although Culdares case), Haile's rep. 969, approved. his putative father was a Scotchman domiciled
The 43rd section of 11 & 12 Vict. c. 36, all his life in Scotland, and although such pucommonly called “ Lord Rutherford's Act,” tative father afterwards married the mother of is not retrospective. Urquhart v. Urquhart, 1 the bastard for the express purpose of renderMacq. 658.
ing the bastard legitimate.
The children of natural born subjects, who, Of words in England and Scotland.--Semble, under the 4 Geo. 2, c. 21, are to be considered Terms of art may have different significations natural born subjects of this kingdom, must in England and Scotland; but popular lan- have been legitimate from their birth, and not guage meant to express ordinary agreements
rendered so by the subsequent marriage of their ought to have the same interpretation on both parents. sides of the Tweed; and where the English born of a British father ; but a bastard, nullius
To be within the Act, the child must be Courts have for a long time attached a certain meaning to certain words, the Scotch Courts, filius, can have no father. Shedden v. Patrick, having no decision to the contrary, may safely
i Macq. 535.
“OWNER.” follow them. Clark v. Glasgow Assurance Company, 1 Macq. 668.
POOR RATE. Fraudulently obtained. - When affirmed by
See Waterworks. House of Lords.-Where a judgment has been
PUBLIC DECISIONS. obtained by fraud, and more especially by the Of Superior Courts of Justice.-Semble, that collusion of both parties—such judgment al- the Imperial Legislature may be taken to have though confirmed by the House of Lords, may, cognisance of the decisions of the Superior even in an inferior tribunal, be treated as a Courts of Justice-especially when they relate nullity.
to questions of a public nature. Edinburgh But the allegations of fraud and collusion Water Company v. Hay, 1 Macq. 682. must be specific, pointed, and relevant; other
SOLICITOR. wise they cannot be admitted to proof. To set aside a judgment had by fraud, the
Undertaking conflicting duties.- Remarks by proper course, when such judgment has been the Law Peers on the danger which arises confirmed by the House of Lords, is to apply duties which conflict with each other. Shedden
from the assumption by professional persons of to the House for direction.
Hence it is wrong to ask the Court below, v. Patrick, 1 Macq. 536. upon proof of the fraud or collusion, to set
SPECIFIC PERFORMANCE. aside a judgment confirmed by the House. Method of compelling the specific perform
Whether the House, in such a case, can ance of agreements in Scotland and form of direct an iseue, quære? Shedden v. Patrick, prayer. Clark v. Glasgow Assurance Company, 1 Macq. 535.
i Macq. 668. Case cited in the judgment: Meadows v. Duchess of Kingston, Ambi. 756.
Retrospective operation. In general, Courts LEGITIMATION.
of Justice will be slow to ascribe a retrospecPer subsequens matrimonium. — From what
tive operation to any Statute. Urqukart r. period it operates.-- Alien Statutes. --- Children Urquhart, 1 Macq. 658. without parents. By the law of Scotland legitimation per subsequens matrimonium ope- Assessment to poor-rate. - Import of word rates only from the time of the marriage, not owner " in 8 & 9 Vict. c. 83.- Under the 8 from the time of the birth.
& 9 Vict. c. 83, a waterworks' company are Semble, that the ancient fiction, which sup- liable to assessment for relief of the poor, as posed an interchange of matrimonial consent owners and occupants of the land through at the moment of conception, is not sanctioned which their pipes run. by the law of Scotland.
The word “ owner occurring in the Act Semble, that the doctrine of mid-impediments does not necessarily mean owner of the fee. It is also without foundation in the law of Scot- may mean the owner of a partial interet land.
Edinburgh Water Company v. Hay, 1 Macig. Semble, that by the law of Scotland, if the 692.
The Legal Observer,
-"Still attorneyed at your service."-Shakespeare.
SATURDAY, JANUARY 27, 1855.
LIMITED LIABILITY PARTNER- (opposition to the just claims of those creSHIPS. ditors, to have “ the concern
to pay the debts of the concern, and not as WHAT SHOULD BE THE FRAME OF THE now, in great measure to be set apart to LAW TO ESTABLISH THEM?
replace itself; so as, perhaps, out of the diWe cannot doubt but that any of our vidend taken in competition with the trade readers who have given even slight attention creditors, to start itself over again in busito this subject, must see that “family cre- ness. ditors" advancing capital to the trade, ought, We have premised this much, by way of in justice to the general trade creditors of a introducing a few comments on the report concern, to be postponed to such trade cre- of the Committee of the Law Amendment ditors. The “family" capital, worked by the Society, on the paper of Mr. Edgar we trader and in his "reputed ownership,” is lately published, and, indeed, on Mr. Edthe real thing to which trade credit has been gar's paper itself. The report and paper given ; and it is, therefore, the thing which propose to establish the principle of posteminently and preferentially should pay the poning the right of the family creditor (we trade debts. Our law now allows, however, use this term as denoting all who really are that a large slice of it should be withdrawn capital advancers) to those of ordinary from the trade creditors, under the shape of trade creditors, only very partially and pera dividend to itself. Is this right or not? missively; and to do it, as far as they do Now this question will be found to be the it at all, through regulations affecting the same question as that of the propriety of mode of bringing in the capital—of regisallowing limited liability partnerships to be tering the facts of partnership—the name established; at least to include such second of the firm—the business, &c., &c.—with question.
the registrar of joint-stock companies. If the trader's books are rightly and This seems to us altogether a mistake; and fairly kept, he opens a “capital account,” now that some legislation is about to take and makes the trade debtor to “capital,” and place it is very desirable that the true basis “capital” debtor to his father, uncle, &c.; of legislation should be well canvassed. and when he fails “capital” (or that which This true basis lies, we believe, simply in corremains in the trade after paying the debts) recting the error our law has made, in saying should, in all justice, and, according to the that all who participate in the profits of a buvery books themselves, be the re-payer. Now, siness shall be personally liable to its debts, this is exactly the state of things arrived at even notwithstanding that the creditors under a system of limited liability or com- never dreamt of these participators being mandite partnership. Those who (agitated partners, or gave a particle of credit on by a fear of opposition to their own trades, their responsibility. This erroneous rule or by some phantom of their own creating) (which has no base in natural justice) oppose the allowance, by our law, of the drives those who would otherwise desire to be system under consideration, profess to do secret partners, into the position of " family so for the benefit of trade creditors; whereas, creditors,” taking-now there is no usury in fact, they are arguing in the most direct law—a large share of the profits in the shape
VOL. XLIX. No. 1,403.
Limited Liability Partnerships. of interest, at any exorbitant rate, and rank- Ireland, and all the cases in which it has ing in liquidation, with and against the trade been cited will illustrate the mischief of the creditor. In this way, in England, family public requiring in mercantile matters creditors are legion; while there are few things to be done in which it, the public, secret partners. The true interest, on the has no real or deep interest ; but the whole other hand, of the trade creditor and of value of which lies really between the partthe public is, that there should be as many ners themselves; or between the partners secret partners as possible-as many per- and those who, with eyes open, deal with sons as possible, that is, who are content them : a criticism this, by the way, applicato advance capital into trades, and to back ble to most of the mercantile enactments these trades and help them, and link their statutory, or by charter of the Board of interests to them, on condition that they Trade. rank for what they advance, against the What, then, should be the frame of the assets, not pari passu with, but after and proposed law ? behind all the trade creditors. If we could Make the ostensible partner sole owner legislate at all beyond the point of allowing at law; and enact that secret partners shall this, it would be to declare all loans made only have an equitable cestuique trust not for the purpose of some one particular right against the assets, and shall not be adventure in trade (as is the case in every liable to the partnership debts ; and that speculation carried on by the ordinary the ostensible partner shall not have any union of creditor and debtor), but being right to pledge their personal credit, and for the permanent continuing service of the shall be criminally responsible if he attrade (that is for its capital), should always tempt to do so ;-and, as to private assorank after and behind the trade creditors, ciations, the law will, we think, hare acwhether the advancer put himself in the complished all it should do; unless, indeed, situation of a family creditor or not. But the larger amendment of the Law of Debtor the proposal we are considering, on the con- and Creditor, which would postpone the trary, takes quite the opposite view ; and rights in liquidation of a family creditor or treats the right of the family creditor as other capital lender, to those of ordinary irrefragable; and his subsidence into the trade creditors, should also be made. position, more honest towards the public, of Charters, and the principles on which secret partner; as being a favour to him to incorporation should be granted, ought to be granted only on imposing special terms, be considered and dealt with separately. and voluminous and intricate returns and They and the Joint-Stock Acts form a disregistration observances. These special tinct branch of the inquiry. terms too, are such as are of no kind of use to the public; and yet they place great a surprising want of accordance with the theory
' All our law (except bankruptcy) exhibits difficulty in the way of that very subsi- and understandings of trade among merdence' which the public has so much to chants. This is manifest on the whole system desire; for the proposed special terms of bookkeeping. If we look at all the acwherever such are established, practically counts," Capital,” “ Profit and Loss,” &c., make it very difficult that those who intend as indicating (as in bookkeeping and mercanto be only secret partners, should be able tile theory they do), individuals enlilled to that to be sure that nothing has been or shall be which the books attribute to them, and from done which can impose on them a general the funds assigned, results arise totally at rari.
ance with what the law awards. The creditor liability; and therefore they prevent the has, by the books, all the assets assigned to him useful working of such a law.
to pay his debt; but by the common law his “ The effect (says a recent pamphlet, speakthe partners; and he can (except in bankruptey)
right is looked upon as one purely personal or ing on such special terms in American law) of set up no lien on or right of application of the these restrictive rules in leading creditors, after joint assets to his claim. The instance of a a failure of a commanditory partnership, to dissolution suit well shows this; or the anahunt over all its acts and returns to find a logous case of a creditor claiming rights upon chance for dragging a limited partner into a funds realised under the Winding-up Acts. general liability; although in giving credit
, Mr. Cory's book on Accounts contains valuahis liability was no item in consideration ; is ble matter on the philosophy of this subject; one proof of the folly of statutory articles of but the subject itself requires fuller investigapartnership."
tion by the jurist than it has yet received. The Our Joint-Stock Company Acts have right of a creditor of one partner in execution raised the same kind of question here ; and against the shares in the joint concern, is anoTaylor v. Hughes, before Sir E. Sudgen in for consideration.
ther interesting form in which it presents itself
New Orders in Chancery. NEW ORDERS IN CHANCERY. spectively shall be at liberty to verify their
respective cases, either wholly or partially EXAMINATION OF WITNESSES.- EVI.
by affidavit, or wholly or partially by the
oral examination of witnesses, before one DENCE.-AFFIDAVITS.
of the examiners of the Court, or before The Right Honourable Robert Monsey an examiner to be specially appointed by Lord Cranworth, Lord High Chancellor of the Court. Great Britain, by and with the advice and
V. The evidence on both sides in any assistance of the Right Honourable Sir
cause to be used at the hearing thereof, John Romilly, Master of the Rolls, the whether taken upon affidavit or orally, Right Honourable the Lord Justice Sir (and including the cross-examination and James Lewis Knight Bruce, the Right re-examination of any witness or witnesses), Honourable the Lord Justice Sir George is to be closed within eight weeks after James Turner, the Honourable the Vice- issue joined therein, except that any witChancellor Sir Richard Torin Kindersley, ness who has made an affidavit intended the Honourable the Vice-Chancellor Sir to be used by any party to such cause at John Stuart, and the Honourable the Vice- the hearing thereof shall be subject to Chancellor Sir William Page Wood, doth
cross-examination within one month after hereby, in pursuance and execution of the the expiration of such period of eight powers of an Act of Parliament passed in weeks. the 15 & 16 Vict., intituled “ An Act to
VI. No affidavit or deposition filed or amend the Practice and Course of Proceed- made before issue joined in any cause shall, ing in the High Court of Chancery,” and without special leave of the Court, be reof all other powers enabling him in that ceived at the hearing thereof, unless within behalf, order and direct that all and every one month after issue joined, or within such the rules, orders, and directions hereinafter longer time as may be allowed by special set forth shall henceforth be and for all leave of the Court, notice in writing shall purposes be deemed and taken to be Ge- have been given by the party intending to neral Rules and Orders of the High Court
use the same, to the opposite party, of his of Chancery, viz. :
intention in that behalf. Introductory.
VII. In suits in which issue shall have 1. The course of proceeding prescribed the evidence to be used at the hearing of the
been joined when these Orders take effect, by the 15 & 16 Vict. c. 86, and the Ge- cause shall be taken according to the preneral Order of the 7th August, 1852, with respect to the mode of examining witnesses shall consent to, or the Court shall order,
sent practice of the Court, unless the parties and the practice of the Court in relation that the same shall be taken in the altered thereto, are altered in the manner and to the
mode prescribed by thesc Orders. extent prescribed by these Orders, but not further or otherwise.
Affidavits. II. The Orders numbered respectively, 31, 32, 33, comprised in the General Order
VIII. All affidavits, whether to be used
other of the 7th August, 1852, and all other at the hearing of a cause, or on any Orders and parts of Orders, so far as such proceeding before the Court, are to state other Orders and parts of Orders are incon- distinctly what facts or circumstances desistent with these Orders, but not further posed to are within deponent's own knowor otherwise, are hereby abrogated and ledge, and his means of knowledge, and discharged.
what facts or circumstances deposed to are III. All former Orders and parts of known to or believed by him by reason of Orders, not specified in Order Two, so far information derived from other sources than as the same are now in force, and consist- his own knowledge, or what such sources ent with these Orders, are to remain in full are. force and effect.
IX. The costs of affidavits not in confor
mity with the preceding Order, are to be Evidence.
disallowed on taxation, unless the Court IV. It shall not be competent for the should otherwise direct. plaintiff or any defendant to require, by no- X. These Orders shall be deemed to tice or otherwise, that the evidence to he apply as nearly as may be to evidence taken adduced in a cause shall be taken orally, after the hearing of a cause, as well as to but when issue shall have been joined in evidence taken previously, and with a view any cause the plaintiff and defendants re- to such hearing.