110

New Common Law Rules-Forms of Proceedings.

before us, [or in the Common Pleas, "before
our justices," or in the Exchequer, "before the
barons of our Exchequer, as the case may be,]
at Westminster, immediately after the execu-
tion hereof, to satisfy A. B. £
the
amount [or "part of the amount," if the debt
be more than the judgment debt,] of a debt due
from the said E. F. to C. D., and for the levy.
ing of which it has been adjudged by our
Court of Queen's Bench [or "Common Pleas,"
or "Exchequer of Pleas,"] that the said A. B.
should have his execution against the said
E. F., to satisfy [or "towards satisfying," if
the debt be less than the judgment debt,] £
which the said A. B. on
(the date of
the judgment against the judgment debtor) by
the judgment of the said Court recovered
against the said C. D., and further to satisfy
the said A. B. £
which in our same
Court were adjudged to the said A. B. for his
costs of suit which he hath been put to on oc-
casion of our writ sued out against the said

in

E. F. at the suit of the said A. B. in that be-
half, whereof the said E. F. is convicted; and
have you there then this writ. Witness
at Westminster, the day of
the year of our Lord
32. Judgment for Plaintiff after Verdict that a
Mandamus do issue, under Section 71 of the
Common Law Procedure Act, 1854.

[The same as in the ordinary form of an entry of a judgment to the end of the postea, and then thus:] Therefore it is considered that a writ of mandamus do issue commanding the defendant to [here state the duty to be performed, or the thing to be done, as claimed by the declaration]; and it is also considered that the plaintiff do recover of the defendant the said moneys by the justices [or "by the judge" or "baron"] aforesaid in form aforesaid above assessed, and for his costs of suit in this behalf. [In the margin of the judgment opposite the first words, "Therefore it is considered, &c.," write "judgment signed the day of

also £

وو

18 inserting the day of signing final judgment.]

33. Writ of Inquiry to ascertain the Expense
incurred by the doing of an Act, and for the
doing of which a Mandamus was issued.
Victoria, by the grace of God of the United
Kingdom of Great Britain and Ireland Queen,
Defender of the Faith, to the Sheriff of
greeting. Whereas upon an application by
A. B., the plaintiff in an action against C. D.
in our Court of Queen's Bench [or "Common
Pleas," or Exchequer of Pleas," as the case
may be,] at Westminster, our said Court did
day of
on the
(date of
order) direct that
[state the terms of
the order directing the act to be done at the de-
fendant's expense]; and the said A. B. [or
"and E. F.," if another person than the plain-
tiff has been appointed by the Court to do the
act,] has done the said act so directed to be
done; and in order to enable our said Court
to ascertain the amount of the expense of the
doing the same we command you that by the

A.D.

oath of twelve good and lawful men of your
bailiwick you diligently inquire what is the
amount of the expenses incurred by the said
A. B. [or " by E. F.," as the case may be,] in
the doing of the said act, and that you send to
us [or in Common Pleas, “to our justices," or
"to the barons of our Exche-
in Exchequer,
day of
quer,"] at Westminster, on the
now next ensuing, the inquisition which you
shall thereupon take, under your seal and the
seal of those by whose oath you shall take that
inquisition, together with this writ. Witness
(name of chief justice, or in Exchequer
day
of chief baron) at Westminster, the

of

in the year of our Lord 34. Writ of Execution in Detinue, under Section 78 of the Common Law Procedure Act, 1854, for the Return of the Chattel detained, and for a Distringas until returned, separate from a Writ for Damages or Costs.

of

Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to the Sheriff greeting. We command you, that you omit not by reason of any liberty of your county, but that you enter the same, and without delay you cause the following chattels, that is to say, [here enumerate the chattels recovered by the judgment for the return of which execution has been ordered to issue,] to be returned to A. B., which the said A. B. lately in our Court before us [or in the Common Pleas, "before our justices," or in the Exchequer, “before the barons of our Exchequer,"] at Westminster recovered against C. D. in an action for the detention of the same, whereof the said C. D. is convicted. And we further command you, that if the said chattels cannot be found in your bailiwick you omit not by reason of any liberty of your county, but that you enter the same, and distrain the said C. D. by all his lands and chattels in your bailiwick, so that neither the said C. D. nor any one for him do lay hands on the same until the said C. D. render to the said A. B. the said chattels; and in what manner you shall have executed this our writ make appear to us [or in Common Pleas, “to our justices,” or in Exchequer, “to the barons of our Exchequer,"] at Westminster, immediately after the execution hereof and have you there then this writ. Witness at Westminster, the day of year of our Lord 35. The like, but, instead of a Distress until the Chattel is returned, commanding the Sheriff to levy on Defendant's Goods the assessed Value of it.

in the

[Proceed as in the preceding form until_the*, and then thus:] And we further command you, that if the said chattels cannot be found in your bailiwick you omit not by reason of any liberty of your county, but that you enter the same, and of the goods and chattels of the said C. D. in your bailiwick you cause to be made £ (the assessed value of the chattels), whereof the said C. D. is also convicted, and that in the execution of this our last-mentioned

Law of Costs.-Construction of Statutes.-Law of Evidence.

CONSTRUCTION OF STATUTES.

111

command you do all such things as by the cedent. In three or four years this decision Statute passed in the second year of our reign will constitute a precedent." Bougleux v. you are authorised and required to do in this Swayne and another, 3 Ellis & B. 829. behalf; and in what manner you shall have executed this our writ make appear to us [or in the Common Pleas, "to our justices," or in the Exchequer, "to the barons of our Exchequer," as the case may be,] at Westminster, immediately after the execution hereof, and have you there then this writ. Witness Westminster, the day of year of our Lord

EQUITY JURISDICTION IMPROVEMENT ACT.

at ADMISSION OF AFFIDAVITS WHERE EVIin the DENCE TAKEN ORALLY.

36. Indorsement on Writ of Summons of Claim of a Writ of Injunction under Section 79 of the Common Law Procedure Act, 1854. The plaintiff intends to claim a writ of injunction to restrain the defendant from There state concisely for what the writ of injunction is required, as, for example, thus: "felling or cutting down any timber or trees standing, growing, or being in or upon the land and premises at

of

IN a cause, the defendant elected that the evidence should be taken orally, and the plaintiff then moved under the 15 & 16 Vict. c. 86, s. 36, for leave to use at the hearing affidavits which had been filed on a former application for an injunction, for a receiver and for payment of money into Court.

The Master of the Rolls said-"The meanin the county ing of this clause is, that where there are par

, and from committing any further ticular facts or circumstances, which the deor other waste or spoil in or upon the said land fendant either does not dispute or has no inand premises" And take notice, that in de- terest in disputing, the Court, notwithstanding fault of the defendant's entering an appearance, the evidence is taken orally, may give liberty as within commanded, the plaintiff may, besides proceeding to judgment and execution to prove them by affidavits. But here, the plainfor damages and costs, apply for and obtain such writ.

SECURITY FOR, ON ERROR BY UNSUC-
CESSFUL PLAINTIFF, A FOREIGNER.

It appeared that the plaintiff, who was a foreigner and resident out of the jurisdiction of the English Courts, had given security for costs to the amount of 4007. in an action brought in the Court of Queen's Bench. Upon the defendants having obtained judgment on a special verdict, the costs amounted to 4581., subject to a question pending on the taxation, which might have the effect of increasing the costs. The plaintiff suggested error in law, which the defendants denied, and now moved the Court of Exchequer Chamber that he might give security for costs in error to the satisfaction of the Master of the Court below, and that in the meantime proceedings might be stayed.

Jervis, C. J., said, "It seems to be the opinion of the Court,1 that this application should be granted, though we have no pre.

Pollock, C. B., Maule, Cresswell, and Crowder, JJ.; Alderson, Platt, and Martin, BB.

tiff wants to prove his case by affidavits, after the defendant has said I will have it proved orally.' The plaintiff must specify the particular facts and circumstances which he proposes to prove by affidavits; and I will then dispose of the motion, after asking the defendant what he has to say to it. It may be of great importance to him to be able to crossexamine the witnesses.

"The order to be made under the 37th section will be, that as to particular facts, or a particular set of facts, the plaintiff shall be at liberty to prove them by affidavits.

"It is obvious, that the Act does not mean to confine the defendant's protection to that afforded under the 29th section." Ivison v. Grassiot, 17 Beav. 321.

LAW OF EVIDENCE.

PARTNERSHIP BOOKS, HOW FAR EVIDENCE. "Prima facie, the books of the partnership are evidence among all the partners, for them all and against them all, owing to the agency which prevaded all the partnership transactions. If one partner succeeded in establishing a case of fraud, that would form a ground for an exception from the general rule, nor is there anything in the rule to exclude an alle

gation of a mistaken or erroneous insertion." Per Lord Justice Knight Bruce, in Lodge v. Prichard, 3 De G., M'N. & G. 906.

J. L. Smith, Ledbury

E. Williams, Oswestry

. A.Haymes, Leamington-priors

[To be continued.]

Liverpool Borough Court,-Notes of the Week-Superior Courts: Lords Justices. LIVERPOOL BOROUGH COURT.

IT is this day (Nov. 27), ordered by her Majesty in Council, that within one month after such order shall have been published in the London Gazette, all the provisions of the "Common Law Procedure Act, 1854" (except such as are contained in the sections of the said Act, numbered respectively 2, 17, 34 to 43, both inclusive, 75, 76, 77, 95, 97 to 102 both inclusive, and 104 to 107 both inclusive), shall extend and apply to the Court of Record of the Borough of Liverpool, called the Court of Passage.

And her Majesty is further pleased to order by and with the advice of her Privy Council, that all the powers or duties exercisable by the Court or a Judge under any of the sections of the said "Common Law Procedure Act, 1854," hereby extended and applied to the said Court of Passage, shall, as regards matters and proceedings therein be exercisable and exercised by the Court or assessor; that all the powers or duties exercisable by a Master under any of the sections of the said Act as aforesaid, shall, as regards matters and proceedings in the said Court be exercisable and exercised by the Registrar of the Court or deputy; and that the powers or duties exercisable by a sheriff under any of the sections of the said Act as aforesaid, shall, as regards matters and proceedings in the said Court, be exercisable and exercised within the jurisdiction of the said Court by the Serjeant-at-Mace of the said Borough of Liverpool. From the London Gazette of 5th Dec.

113

get an Act passed for the purpose of exempting
attorneys and solicitors from liability to serve
A SOLICITOR.
in the militia.
[We are not aware that the attorneys and
solicitors would generally desire such an ex-
emption to be asked for.-Ed.]

SATURDAY HALF-HOLIDAY,

To the Editor of the Legal Observer. SIR, Will you kindly inform your readers that a memorial to the Law Society by Law Clerks in favour of the Legal Saturday Halfholiday, is lying for signature at Mr. E. Cox's, Law Stationer, 102, Chancery Lane.

It is hoped that the number of signatures, by showing the strong feeling that exists on the subject, may induce the Law Society to take steps which may accomplish the object desired. W. R.

NOTES OF THE WEEK.

LAW APPOINTMENTS.

Abraham Hayward, Esq., Q. C., has been appointed one of the Secretaries of the Poor Law Board, in the room of Lord Courtney, who has succeeded to the Commissionership of the Woods and Forests, lately held by the Right Hon. T. F. Kennedy.

Harry Porter Curtis, Esq., has been appointed Town Clerk of Romsey, in the room of Henry Holmes, Esq., deceased.

The Queen has been pleased to appoint John Montgomery Hill, Esq., to be Civil Commissioner and Resident Magistrate at Port Elizabeth, Cape of Good Hope. From the London Gazette of Dec. 1.

EXCHEQUER OF PLEAS.

This Court will, in addition to the days already appointed, hold a Sitting on Monday, the 18th day of December instant, and will, at such Sitting, proceed in giving judgment in all matters then ready for judgment.

RECENT DECISIONS IN THE SUPERIOR COURTS,
Lords Justices.

Gibson v. Woollard. Dec. 1, 1854.
EQUITY JURISDICTION IMPROVEMENT ACT

-SALE UNDER DECREE. REFERENCE TO
CONVEYANCING COUNSEL.

Held, that the Court has power under the 15 & 16 Vict. c. 86, s. 56, to exercise a disoretion upon estates being ordered to be sold by auction, as to directing a reference to the conveyancing counsel of the abstract, on an offer being made to purchase by pri

vate contract.

By the 15 & 16 Vict. c. 86, s. 56, it is enacted, that "before any estate or interest shall be put up for sale under a decree or order of the Court of Chancery, an abstract of the title thereto shall, with the approbation of the Court, be laid before some conveyancing counsel to be approved by the Court, for the opinion of such counsel thereon, to the intent that the said Court may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof."

Bacon in support; Godfrey for the defendants, did not oppose.

The Lords Justices said, that the Act of Parliament conferred a power on the Court to exercise a discretion, and the matter was accordingly referred back, with an intimation of this

THIS was an application, by way of appeal from Vice-Chancellor Stuart, that the sale of certain estates, ordered to be sold by auction, and the abstract to be laid before one of the conveyancing counsel, might proceed without the intervention of the conveyancing counsel, upon an offer being made for the purchase of opinion. the estates by private contract.

114

Superior Courts: V. C. Kindersley.-V. C. Stuart.-Queen's Bench.

Torriano for other parties.

The Vice-Chancellor said, that a vesting order would be made as asked.

Vice-Chancellor Stuart.

Allen v. Williams. Nov. 27, 1854. SEQUESTRATION. - PERPETUAL CURrate. NONPAYMENT OF MONEY.

Order on motion for the issue of a writ of fi. fa. de bonis ecclesiasticis, against a perpetual curate, who had neglected to pay a sum of money pursuant to the order of the Court, after a writ of sequestration had been issued, to which there was returned that he had no lay property.

Where the assignees of an insolvent omitted to enter up judgment on the warrant of attorney, under the 7 Geo. 4, c. 57, held that they were not entitled to certain leaseholds devised to him, and on his death to his children, upon his predeceasing the testator. IT appeared that by the will of his father, Mr. Holsgrove was entitled to certain leaseholds, and his children on his death, and that on his becoming an insolvent in 1833, all his property to which he was or might become entitled, was assigned under the 7 Geo. 4, c. 57, and a warrant of attorney was also given to enable the assignees to enter up judgment against him. The insolvent predeceased his father, and his children (of whom the plaintiff was one) became entitled. The assignees had not entered up judgment under the warrant of at-pay to the plaintiff a sum of money, pursuant torney.

Sidney Smith for the plaintiff, contended the leaseholds passed to the children.

Maine for the assignees, contrà.

The Vice-Chancellor said, that as the assignees had not perfected their title by entering up judgment, under the 7 Geo. 4, c. 57, the plaintiff, and not they, were entitled to the leaseholds.

THIS was a motion for a writ of fi. fa. de bonis ecclesiasticis, against the defendant in this case, who was the perpetual curate in the diocese of Manchester, and had neglected to

to the order of the Court. A sequestration had issued, to which there was a return that he had no lay property.

F. T. White in support, referred to Norton v. Pritchard, Reg. lib. b. 1844, fo. 1568, in which a sequestration issued to the bishop after the return by the Commissioners of Sequestration, that the defendant was a beneficed clergyman.

The Vice-Chancellor said, that the order would be granted on the authority of the case cited, but without expressing any opinion as to its effect on the 13 Eliz. c. 20, prohibiting a clergyman changing his benefice.

Court of Queen's Bench.
Regina v. South Wales Railway Company.
Nov. 11, 1854.

A vesting order was made under the 13 & 14 Viet. c. 60, ss. 10, 34, upon the death of two trustees of a marriage settlement and of another going out of the jurisdiction, vesting the trust estate in the three new PUBLIC HEALTH ACT.-LIABILITY OF RAILtrustees appointed, together with the continuing trustee.

In this suit to establish a marriage settlement, by means of an authenticated copy upon the original being lost, an order was sought for the appointment of new trustees under the 13 & 14 Vict. c. 60, in the stead of two who had died and of one who was out of the jurisdiction, and for a vesting order under ss. 10, 34, in them together with the continuing

trustee.

1 Which enact (s. 10), "that when any person or persons shall be seised or possessed of any lands jointly with a person out of the jurisdiction of the Court of Chancery, or who cannot be found, it shall be lawful for the said Court to make an order vesting the lands in the person or persons so jointly seised or possessed, or in such last-mentioned person or persons together with any other person or persons, in such manner and for such estate as the said Court shall direct; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly

WAY STATION TO BE RATED TO FULL
VALUE.

Held, that the platform, station, warehouses,
and sheds at the terminus of a railway
company are not exempted from being
rated to the full net annual value under s.
88 of the Public Health Act (11 & 12
Vict. c. 63), under the exemption of land
used " as a railway."

It appeared that the above railway company

executed a conveyance or assignment of the lands in the same manner for the same estate;" and (s. 34) "that it shall be lawful for the said Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands subject to the trust shall vest in the person or persons for such estate as the Court shall direct; and such order shall have the same effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances and assignments of such lands for such estate."