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New Oder in Chancery.—Review: The Limitel Liability Act, 1855.
know whether there is any or what Glebe, which the cause is distinguished in the
“I am, sir, you obedient servant,
We respected this injunction as long as Lord Truro lived, but there is no need that a man's good actions should remain secret after death. The living thus modestly and nobly offered, and accepted with deep gratitude, was but the payment of a public debt; and he to whom it occurred to pay it should hereafter not be forgotten when Southey's name in literature is remembered. We may add that Lord Truro's sympathies were always active in this direction, and the readers of Charles Lamb's Life and Letters will remember some very pleasant allusions to Serjeant Wilde."
NEW ORDER IN CHANCERY.
ENTRIES IN CAUSE-BOOKS AT THE RE
Friday, the 30th day of November, in the 19th year of the reign of her Majesty Queen Victoria, 1855.
THE Right Honourable Robert Monsey Lord Cranworth, Lord High Chancellor of Great Britain, with the advice and assistance of the Right Honourable Sir John Romilly, Master of the Rolls, and the Hon. the Vice Chancellor Sir R. T. Kindersley, doth hereby, in pursuance of an Act passed in the Session of Parliament holden in the 5th and 6th years of the reign of her present Majesty, c. 103, and of an Act passed in the 18th and 19th years of the reign of her present Majesty, intituled "An Act to make further provision for the more speedy and efficient despatch of business in the High Court of Chancery," and in pursuance and execution of all other powers enabling him In that behalf, order and direct as follows:
2. The Clerks of Records and Writs are, in addition to the entries heretofore made by them in their respective cause-books, to enter therein respectively the date of every decree, order, report, and certificate which shall be made in each cause.
3. The entry of every such decree and order is also to contain a reference to the date and folio of the Registrar's bock in which such decree or order shall have been entered.
4. These orders are to take effect on and
from the 1st day of Hilary Term, 1856, and
(Signed) CRANWORTH, C.
JOHN ROMILLY, M. R.
NOTICES OF NEW BOOKS.
The Limited Liability Act, 1855.
The Law of Limited Liability, Partner-
MR. SWEET informs us in his Preface, that "the Limited Liability Act is the result of a well-organised agitation by some capitalists and speculators, who have been unable to obtain charters from the Board of Trade." We confess that we did not know this. We believed that a body of Commissioners had been appointed under the Great 1. Every decree, order, report, certificate, Seal;-that among them were to be found petition, and document, made, presented, or used in any cause in this Court is to be dis- some very eminent mercantile lawyers, and tinguished by having plainly written on the the names of Judges both from Westminster and from Edinburgh ;—and that these first page of such decree, order, report, cerCommissioners most fully and anxiously tificate, petition, and document, the date of considered this subject, and had obtained, the year, the letter, and the number by for the purpose of so doing, the opinions of many leading merchants and of foreign jurists. We had some recollection that a majority in number of the Commissioners had reported adversely to the policy of limited liability in partnership; but a masterly argument of Mr. Bramwell in its
1 66 Eight days later we received the presentation completed, with the Great Seal attached, and accompanied by the subjoined note :
Eaton Square. "The Lord Chancellor presents his compliments to the Editor of the Examiner, and has the pleasure to hand to him the presenta tion of Mr. Southey to the Living, of which Mr. Southey may forthwith take possession. "18th January, 1851.'"
'The measure, according to our recollection, was strongly opposed in Parliament by several of the most wealthy commercial men.
Review: Limited Liability Act, 1855.—Summary Procedure on Bills of Exchange Act. 111
The time has been when Mr. Archbold's name carried with it authority; but we regret, for the author's sake, to find that his recent publications are not calculated to earn, or likely to obtain, the confidence of the Profession.
favour, which we recollected to have read, consists of an abstract of the Limited Liaseemed to us, as it did (in our im- bility Act, also followed by a reprint of the agination it now appears) to a majority Statute. An Index and Messrs. Shaw & of the Legislature, unanswerable and con- Son's Catalogue of the works published by clusive. We have been all wrong, how- them, from "LYNAM'S ROMAN EMPERORS, ever, in attributing to the wisdom of our dedicated by permission to the Right Hon. Legislators the assertion of the principle of the Earl of Carlisle, in 2 vols. 8vo., beautilimited liability. Mr. Sweet knows a great fully printed, with a fine portrait of the deal better. The "capitalists" and "spe- author," down to a publication well known culators," he tells us, and tells us so confi- to our grandfathers, - Serjeant "Bootes' dently that we dare not doubt his assertion, Historical Treatise of a Suit at Law," add "secured the services of a large portion of to the size, if they do not increase the the public press and of her Majesty's Go- value, of the work. vernment, with such effect, that the fundamental principles of the Law of Debtor and Creditor were assailed and partially overturned, before (!) a single supporter of the measure in the House had so far learned his lesson, as to be able to speak on the subject without committing the most lu- Mr. Haddan has been hitherto unknown dicrous blunders." Mr. Sweet has never- as a legal author, but he is not likely to theless done his best, he admits, "to fulfil remain so. His work is evidently not one the ordinary duties of an editor with respect of those "half profits," or rather "no proto the Limited Liability Act; but its de- fits," publications, which whenever an immerits are such and so manifold as to make portant Statute is passed are foisted on the it anything but an agreeable subject of Profession by a few of the most gullible of comment. Indeed (says Mr. Sweet), my the junior members of the Bar. These principal motive to the undertaking was, "half profit" publications, while they yield that I might make it a vehicle for giving the publisher, however, a secure profit, further currency to some already published serve only to destroy the market of a really remarks on the policy of the late and the good book, and in this way indirectly to threatened alterations in the Law of Part prevent good men from writing good books; nership." With every respect for Mr. and we wish earnestly to see the system Sweet's acknowledged learning, experience, extirpated. We could name books by the and ability as a legal Author, we cannot dozen published in this way, for the sole agree that he has adopted the proper mode benefit of the publisher, to the degradation of editing an Act of Parliament for the use of the Bar, and the destruction of all enof the Profession. We readily admit that couragement for honest labour in book the Act is imperfect, and that it requires writing. Mr. Haddan's work, we say, is amendments, of which probably Mr. Sweet evidently not one of the publications we will still disapprove; but the principle of limited liability is established, and our duty is to provide against any abuse of the principle and to work out the object of the Legislature in as safe and beneficial a manner as practicable.
refer to; for whatever his arrangements may have been, he has studiously and laboriously elucidated the provisions of the new Statute. His book is in truth the only "workmanlike" production we have seen on this subject; and being so, we can conscientiously recommend it to those of our readers who have anything to do, or are called upon to question anything done, under the Limited Liability Act, 1855.
The Summary Procedure on Bills of Exchange Act, 1855. By O. B. C. HARRISON, Barrister. Wildy & Sons.
Mr. Archbold's labours on the subject of Limited Liability are divided into three PARTS. In the First Part he tells us that partners are persons jointly interested in carrying on a trade or business, and jointly sharing in the profits and losses thereof;that a contract made or bill granted by one, in the course of the trading, is binding on In this thin 12mo. of 28 pages, we have all; and that payment to one, or notice to the recent Statute in a much more convenione, is payment or notice to all. Part II. ent form than that furnished by the Queen's contains an abstract of the provisions of Printer, and with an Index, for one shilling. the Joint-Stock Companies' Act, followed It is a pity that the work was published by a reprint of the Statute; and Part III. before the issue of the new forms of en
dorsements on the 28th ult. Mr. Harrison points out those flagrant omissions of the Act, which have been for some weeks well known to the Profession, and adds a few references to recent cases.
UNION OF BENEFICES ACT.
18 & 19 VICT. c. 127.
nefices united under the provisions thereof who at the time of the making of such order in Council were in possession respectively of such benefices, without the consent of such incumbent expressed in writing.
8. If for the purposes and objects of this Act it shall be found necessary or desirable to provide for the erection of any new church or parsonage house, for the pulling down or removal of any existing church or parsonage house, in either of the benefices proposed to be united, for the sale of the materials or site 6. It shall be lawful for her Majesty in of the same for the appropriation of any plate Council, by any order or orders affirming or or other property held in trust by the churchapproving any scheme of the Commissioners, wardens of any church to be pulled down, for and directing a union of any parishes, or by the disposal of any organ in such church, for any other order or orders, to direct that such the appropriation or re-appropriation of any or such part of any lands, tithes, tenements, or pews or sittings in the church of the united hereditaments, or other permanent endowments benefice left standing, for the transfer of any of the benefices proposed to be united, shall lectureships, the sale of any parsonage houses, be subject to such rentcharge, or excepted out with their appurtenances, for compensations to of such benefice when united, and be trans- parish clerks or other officers, for arrangement ferred and annexed to such other specified be- with respect to fees or vestry-rooms, it shall nefice, and upon the order or orders directing and may be lawful for the church building such rentcharge or transfer and annexation Commissioners to make proposals thereupon coming into operation the lands, houses, tithes, as part of their scheme, and such proposals or tenements, or hereditaments, or other perma- any of them shall be subject to objection and nent endowments, so directed to be subject to protest as herein-provided: Provided, neversuch rentcharge, or to be transferred and an- theless, that nothing in this Act contained shall nexed, shall, without any further deed, trans-authorize the sale of any plate heretofore used fer, or other assurance, become and be for ever subject to such rentcharge or annexed to such benefice, as the case may be, and shall be held and enjoyed by the incumbent thereof for the time being as the endowment or a part of the endowment thereof, subject and without prejudice nevertheless, to all leases, grants, rents, charges, and incumbrances existing at the time of such rentcharge or transfer and annexation 9. Nothing in this Act contained shall be legally affecting the same, except so far as any taken or construed to legalize the sale or letting such apportionment as aforesaid may affect the of any burial ground or churchyard, or of the same respectively; and all such lands, houses, site of any church to be pulled down, if there tithes, tenements, and hereditaments, or other shall have been any interments or deposits in permanent endowments, when so transferred any grave or vault under the site of such or annexed as aforesaid, shall belong to and church; and if there shall be any tablets or the same and the rents and profits thereof monuments erected in such church, such tabshall be recoverable by the incumbent of such lets or monuments, if not removed by the legal benefice for the time being, in the same representatives of the parties to whom the same manner and by the same remedies as were were erected, shall be carefully removed, at applicable thereto before such transfer and the cost and charge of the parties removing
7. The Order or Orders in Council affirming any scheme, or directing any union of parishes, rentcharge, transfer, or annexation as aforesaid, shall, as soon as may be after the making thereof by her Majesty in Council, be inserted and published in the London Gazette, and shall be registered in the registry of the diocese, and the registrar of the diocese is hereby required to make such registry; and such Order in Council, so soon as the same shall have been gazetted, shall have full force and effect of law in all respects and as to all things therein contained, any law, statute, canon, grant, usage, or custom to the contrary, notwithstanding: Provided always, that nothing in this Act contained shall be construed to affect the rights and interests of any of the incumbents of be
for the purposes of the Holy Communion, but the same shall be transferred, with the consent of the bishop of the diocese, to the church of the united benefice, or if such plate be not needed for such church, then to any other church or chapel or churches or chapels within the diocese which the said bishop may select.
the church, and shall be fixed by them in some convenient part of the church thereafter to be constituted the church of the united parishes.
10. From and after the union of any two or more benefices under this Act, the church left standing and remaining within such united benefice shall be the church of the united parishes, and all meetings of vestry for ecclesiastical purposes within such parishes shall be vestry meetings of the parishes united under this Act; and the vestry-room of the church left standing within such united parishes shall be held to be the vestry-room of the united parishes for the use of the parishioners thereof, and also the vestry-room for secular purposes for the parishioners of each of the parishes forming the united parish, and for the care and preserva
Union of Benefices Act.
tion of the deeds, muniments, and records belonging to the same: Provided always, that nothing in this Act contained shall be taken or construed to interfere with any privileges or liberties whatsoever reserved to any parishes in the City of London by 22 Chas. 2, commonly called the City of London Fire Act.
consent of the bishop of the diocese or Chancellor of the diocese under his hand and seal, shall and they are hereby authorised to alter and readjust the pews or seats and the appropriation thereof in the church of the united benefice left standing, so that not less than one-third of the sittings in such church shall be free and unappropriated, and the remainder be placed at the disposal of the churchwardens, under the control and direction of the bishop, of such church, for the use of the parishioners of such united benefice.
11. And whereas by the 6 & 7 Vict. c. 77, it was enacted, that out of the proceeds of any lands, tithes, tenements, or other hereditaments in the Principality of Wales, vested or to be vested in the Ecclesiastical Commissioners for England by or under the provisions of the said 14. After any order in Council under this recited Acts or that Act, it should be lawful, Act shall have obtained full force of law, the by the authority therein-mentioned, to make fee simple and inheritance of the site of any provision, in whole or in part, for the compe- church or parsonage house by such order in tent maintenance of any spiritual person or council directed to be pulled down, and of the persons (being a native or natives of the prin- building materials of such church or parsonage cipality aforesaid) who might be licensed by house, shall, without any further transfer, conthe bishop of the diocese for the time being to veyance, or other form of law being had, obofficiate in any church or chapel within London served, or required, belong to and be vested in or Westminster or the suburbs thereof, duly her Majesty's Commissioners for building new consecrated for the performance of divine ser-churches, in trust to make sale or dispose of vice according to the rites and ceremonies of the united church of England and Ireland, in the Welsh language, and such bishop was thereby authorised to license any spiritual person or persons accordingly: It shall be lawful for the Bishop of London, if he sees fit, to appropriate for the performance of divine service in the Welsh language, so long as such provision shall continue to be made by the Ecclesiastical Commissioners for England, one of the churches within his diocese which might under this Act be pulled down: Provided always, that before such appropriation sufficient provision shall be made to the satisfaction of the said bishop for the repairs, maintenance, and support of the fabric of the church, so long as such church remains so appropriated.
such sites and materials or any part thereof, where the same may be sold, under the powers and for the purposes of this Act, and in further trusts to apply the proceeds of such sale or sales from time to time to such of the same purposes as in the said Order in Council may be indicated; and the said Commissioners, with the consent of the bishop of the diocese under his hand and seal, may make a valid conveyance in fee simple to any body or person of the site of any church or parsonage house pulled down under this Act, or by virtue of any Order in Council authorised hereby: Provided always, the said Commissioners shall give two calendar months' notice in the London Gazette previous to the sale or disposal of such site or any part thereof, in order that thereby 12. And whereas difficulties might arise in facilities may be afforded for appropriating such the case of endowed lectureships, when the lec-site to sanatory purposes, public improvements, tures have been customarily preached in a church which may be taken down under the authority of this Act: It shall therefore be lawful for the bishop of any diocese for the time being to prepare from time to time under his hand and seal a scheme or schemes for transferring such lectures to other churches, to be preached therein at such times as to the said bishop may appear convenient; and such scheme shall be submitted by the said bishop to the Charity Commissioners under the "Charitable Trusts Act, 1853," and such scheme, if approved of by them, or subject to such alterations therein as may appear to the said Commissioners advisable, and as shall be approved of by the said bishop, shall be valid for effecting the purposes therein-mentioned, and shall be registered in the registry of the diocese: Provided, nevertheless, that nothing in this Act contained shall give the bishop any power respecting the appointment of a lecturer without the consent of the incumbent of the church in which such lecturer is to officiate.
13. When any church is pulled down under the provisions of this Act, her Majesty's Commissioners for building new churches, with the
or the improvements of public streets in the vicinity; and if within two months from the time such notice shall have been inserted in the London Gazette the said Commissioners shall not receive an offer which in their judgment shall be satisfactory for the purchase of such land for the purposes aforesaid, it shall be lawful for them to make sale or to dispose of such ground, at such time and at such prices and in such manner as in their discretion shall seem fit, and to apply the proceeds of such sale or sales, from time to time, for or towards the purposes hereinbefore-mentioned.
15. The Church Building Commissioners shall make an annual report to Parliament respecting their proceedings in pursuance of this Act.
16. This Act shall extend only to that part of the United Kingdom called England and Wales.
17. The operation of this Act shall be limited to five years from the date of the same receiving the Royal Assent.
Notes on Recent Statutes.-Law of Costs.
NOTES ON RECENT STATUTES.
COMMON LAW PROCEDURE ACT, 1852.
of an amendment, he may abandon the reference for it is clear that he ought not to be restricted by the original state of the particulars from recovering the amount by which the JUDGMENT AND PROCEEDINGS TAKEN particular item is increased by the order of the learned Judge."
AMENDMENT OF DECLARATION
"The plaintiff having afterwards elected to proceed with the reference, the rule was made absolute. Morgan v. Tarte, 11 Exch. R. 82.
LAW OF COSTS.
refusing to arrest the judgment (reported 10 OF FIRST TRIAL, WHERE SUCCESSFUL PARTY
ON SECOND FAILED ON FIRST TRIAL.
UPON the first trial of an action, a verdict was found for the defendant, but a rule was
Exch. R. 724) took proceedings in error, lodging the writ with the Master and serving a copy on the plaintiff and putting in bail. The plaintiff then took out a summons at Chambers subsequently obtained for a new trial on the to amend the declaration, the Judge referring the matter to the Court.
ground of the verdict being against evidence, and which made no mention of costs.
The Master, on the taxation, had disallowed the plaintiff his costs of the first trial and of the rule under the 17 & 18 Vict. c. 125, s. 44.'
The Court held that it had power, under the The plaintiff was successful on the second 15 & 16 Vict. c. 76, s. 222, to direct the amend-trial. ment, as under s. 155, the record was not removed into the Court of Error until the day of its sitting. The rule was therefore made absolute for the amendment, on payment of the defendant's costs of the motion in arrest of judgment, of the proceedings in error, of the summons at Chambers, and of the present application. Wilkinson v. Sharland. 11 Exch. R. 33.
AMENDMENT OF PARTICULARS
SPECIALLY INDORSED ON WRIT AFTER REFERENCE
THE particulars of demand in an action for services performed and work done by the plaintiff as an architect, were specially indorsed on the writ, under the 15 & 16 Vict. c. 76, but before declaration, the cause was referred by consent of the parties, and by the order of a Judge to an arbitrator, but without power of amendment. A rule nisi was obtained to set aside a Judge's order, giving leave to the plaintiff to amend the particulars, by increas ing the amount of one of the items.
Pollock, L. C. B., said-" We are all agreed that the learned Judge had no power to make the amendment without the consent of the parties, and therefore the order of reference and the order of amendment cannot both stand. If the plaintiff chooses to proceed with the reference, this order must be rescinded; but if he is desirous of obtaining the benefit
On refusing a rule to review the taxation, Parke, B., said:-"The costs remain the same as where formerly the Court ordered the costs of the first trial to abide the event;" and Pollock, L. C. B., added,-"The practice is so inveterate, that in one case the Court of Common Pleas refused to allow a party who had succeeded on a second trial the costs of the first, in which the verdict had been obtained by perjury and fraud. It was urged that, not to allow those costs, was in some measure to reward infamy; but the Court said that they could not alter the established practice. The Court might have made a special order as to the costs of the first trial, but not having done so, the plaintiff is not entitled to them. Where the same party succeeds on both trials, he gets the costs of both; but, where the result of the second trial is different, the party who has succeeded on the first trial never pays the costs of it." Evans v. Robinson, 11 Exch. R. 40.
I Which enacts, that "when a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the Court shall otherwise order."