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190 Notes of Week.—Superior Courts: Lord Chancellor.-Lords Justices.—V. C. Stuart.
Mr. Arthur Alexander Corsellis, Solicitor, has been appointed Clerk to the Magistrates and Clerk to the Board of Works for Wandsworth.
Mr. Bouverie Alleyne has been appointed Colonial Secretary of Grenada.
Mr. Henry Sharpe has been appointed Provost Marshal of Grenada.
Mr. Albert Allom has been appointed Colonial Secretary at Tobago.
Mr. Charles Berkeley has been appointed Colonial Treasurer at Tobago.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Wickendon v. Rayson. Nov. 9, 1855. CREDITOR'S SUIT.-SALE SUBJECT TO DEBT
OF MORTGAGEE, PARTY TO SUIT. Although a mortgagee is made a party to a creditor's suit, held, varying the decree of Vice-Chancellor Stuart, that a sale cannot be ordered except subject to the mortgage, and the sale will not be directed, and the mortgage debt to be discharged out of the assets.
In a creditor's suit, the mortgagee was made a party, who, it was admitted, had priority, and the bill prayed that his mortgage might be discharged out of the assets. The Vice-Chancellor Stuart having directed a sale and for the mortgage to be redeemed, the mortgagee appealed.
cutors, administrators, and assigns, and the mortgagee assigned, subject to the equity of redemption. The assignee died intestate, and his heir-at-law administered and died after having given due notice of sale, and the plaintiff obtained administration to his estate, and contracted to sell to the defendant: Held, affirming the decision of Vice-Chancellor Stuart, with costs, that he could show a good title on the trustee of the legal estate from the heirat-law joining in the conveyance to the defendant.
Ir appeared on this appeal from the ViceChancellor Stuart (reported 1 Kay & J. 371), that certain freehold premises were conveyed by way of mortgage to secure the repayment of 1,000l. with interest, with a power of sale to the mortgagee, his heirs, executors, adminiBy the 15 & 16 Vict. c. 86, s. 48, it is en-strators, and assigns. By a subsequent inacted, that "It shall be lawful for the Court in denture the same premises were assigned toany suit for the foreclosure of the equity of gether with the mortgage debt, subject to the redemption in any mortgaged property, upon equity of redemption, and the transferee afterthe request of the mortgagee, or of any sub- wards died intestate in respect thereof. His sequent incumbrancer, or of the mortgagor, or heir-at-law administered to his estate and then any person claiming under them respectively, died intestate, but after having given due to direct a sale of such property, instead of a notice of sale under the power in the mortgage, foreclosure of such equity of redemption, on and the present plaintiff obtained letters of adsuch terms as the Court may think fit to direct, ministration to his estate, and contracted to sell and if the Court shall so think fit, without pre-to the defendant, who refused to complete on viously determining the priorities of incumbrances, or giving the usual or any time to redeem; provided that if such request shall be made by such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in Court a reasonable sum of money to be fixed by the Court, for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request."
Craig and Bevir in support; Malins and W. D. Lewis, contrà.
The Lord Chancellor said, that the decree of the Vice-Chancellor Stuart must be varied, by directing the sale, subject to the mortgage.
Saloway v. Strawbridge. Nov. 12, 1855.
MORTGAGE. REPRESENTATIVE OF MORT-
Freehold premises were conveyed with a power
the ground that he had not the legal estate. The plaintiff thereupon obtained a conveyance from the heir-at-law to a trustee upon trust for the plaintiff or other the personal representative of the assignee of the original mortgagee. and the assignee of the legal estate undertook to join in the conveyance. This suit was brought for a specific performance. The Vice-Chancellor having made a decree for the plaintiff, this appeal was presented.
Bird in support; W. D. Lewis, contrà.
Nov. 12, 1854.
-ADVANCE IN PRICE.
Upon an advance in price of 3001. on 2,7701. on a sale under decree, held, that leave would be given to open biddings, under the 59th Order of October 16, 1852, although eight days had elapsed since the certificate of the sale was filed, where the circumstances showed the applicant had not had an opportunity of bidding that price at the sale.
Superior Courts: V. C. Stuart.-Queen's Bench.
THIS was an application by way of adjourned summons, for leave to open the biddings, upon an advance in price of 3007. on 2,7701. of property sold under decree. It appeared that more than eight days had elapsed since the certificate of sale was filed.
By the 15 & 16 Vict. c. 80, s. 34, it is enacted, that "when any certificate or report of the chief clerk shall have been signed and adopted by the Judge the same shall be filed in like manner as reports are now filed, and shall thenceforth be binding on all the parties to the proceedings, unless discharged or varied, either at Chambers or in open Court, according to the nature of the case, upon application by summons or motion within such time as shall be prescribed in that behalf by any General Order of the Lord Chancellor; and nothing herein contained shall prejudice or affect the power of the Court at any time to open any such certificate or report upon the same or the like grounds as any report of a Master of the said Court which has been absolutely confirm ed may now be opened;" and Order 51 of October 16, 1852, directs, that "the time within which an application may be made by summons or motion to discharge or vary any certificate or report which has been signed and adopted by the Judge sitting in Chambers, is to be eight clear days after the filing of such certificate or report.
Malins in support; Speed contra.
The Vice-Chancellor said that the new practice under Order 59' gave the Court a much larger discretion as to time than before. The applicant was willing to give a largely advanced price on the reserved price, and although he was represented at the sale by an agent with unlimited authority, it did not appear he would have acted discreetly in continuing his bidding. There would therefore be the usual order, with liberty to the purchaser to apply at Chambers as to his costs of investigating the title.
Regina v. Inhabitants of St. Marylebone.
ORDER OF REMOVAL.-SETTLEMENT.-PAY-
The pauper's husband paid nine months' rent
It appeared on this appeal from an order for
Which directs, that "The power of the Court and of the Judge sitting in Chambers to enlarge or abridge the time for doing any act or taking any proceeding, and to give any special direction as to the course of proceeding in any cause or matter, is unaffected by these Orders."
the removal of a pauper, that the pauper's husband had rented a house in the appellant parish for three-quarters of a year, and paid the rent and taxes for that time until his death, and that the pauper (his widow) had continued the occupation until the end of the year, and paid the rent and taxes due.
By the 6 Geo. 4, c. 57, s. 2 it is enacted that "no person shall acquire a settlement in any parish or township maintaining its own poor, by or by reason of settling upon renting or paying parochial taxes for any tenement not his or her own property," "unless such house or building or land shall be occupied under such yearly hiring, and the rent for the same to the amount of 101. actually paid for the term of one year at the least."
Pashley and Huddleston for the respective parties.
The Court said that the executors were properly the occupiers and not the widow, who was not liable for the rent, and that the order of removal must therefore be quashed.
Regina v. Justices of Ely. Nov. 8, 1855.
CERTIORARI.-QUASHING WARRANT OF
The applicant was remanded by justices, and on the day of remand he was discharged, the charge proving to be groundless. A rule was refused for a certiorari to bring up the warrant to be quashed, and held, that the 11 and 12 Vict., c. 44, s. 2, only applies where there has been a conviction. This was a motion for a certiorari to bring up a warrant of the defendants remanding the applicant in order to be quashed, preliminary to his bringing an action against the prosecutors and the defendants. It appeared that on the day of remand the charge proved to be without ground, and that the applicant was discharged.
N. Palmer in support.
The Court said that the 11 and 12 Vict., c. 44, s. 2,' only applied where there had been a conviction, and the rule was accordingly refused.
Whately v. Crawford. Nov. 26, 1855. COMMON LAW PROcedure act, 1854-IN
TERROGATORIES.-ACTION AGAINST SUR
Superior Courts: Queen's Bench.-Exchequer.
COMMON LAW PROCEDURE ACT, 1852.-CON
CURRENT WRIT ON RENEWED WRIT.
A writ issued and duly continued by alias and pluries writs before the passing of the 15 & 16 Vict. c. 76, was renewed thereunder Held, that a concurrent writ could not he issued thereon, except within six months of
Which enacts, that " in all causes in any of the Superior Courts, by order of the Court or a Judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them by leave of the Court or a Judge may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate any of the officers of any such body corporate, within 10 days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the Court or a Judge shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against accordingly."
such renewed or any subsequently renewed writ.
THIS was a rule nisi to set aside a concurrent writ of summons on the ground that it had been issued more than six months after the date of its renewal under the 15 & 16 Vict. c. 76. It appeared that the original writ had been issued and duly continued by alias and pluries writs before the Common Law Proce dure Act came into operation, and that it had been renewed thereunder from time to time.
By s. 12 it is enacted, that "where any writ of summons in any such action shall have been issued before, and shall be in force at, the comImencement of this Act, such writ may at any time before the expiration thereof be renewed under the provisions of and in the manner directed by this Act; and where any writ, issued in continuation of a preceding writ according to the provisions of the said Act of his late Majesty King William the Fourth, shall be in force and unexpired, or where one month next after the expiration thereof shall not have elapsed at the commencement of this Act, such continuing writ may, without being returned non est inventus or entered of record according to the provisions of the said Act of his late Majesty King William the Fourth, be filed in the office of the Court within one month next after the expiration of such writ, or within 20 days after the commencement of this Act; and the original writ of summons in such action may thereupon, but within the same period of one month next after the expiration of the continuing writ, or within 20 days after the commencement of this Act, be renewed under the provisions of and in the manner directed by this Act; and every such writ shall after such renewal have the same duration and effect for
purposes, and shall, if necessary, be subsequently renewed, in the same manner as if it had originally issued under the authority of this Act;" and by s. 9, that "the plaintiff in any such action may, at any time during six summons, issue one or more concurrent writ months from the issuing of the original writ of or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a Seal bearing the word 'concurrent,' and the date of issuing the concurrent writ; and such Seal shall be provided and kept for that purpose at the offices of the Masters of the said Courts, and shall be impressed upon the writ by the proper officer of the Court out of which the original writ issued. Provided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force."
Hance showed cause; Lush in support.
said, that when a writ was renewed it became The Court (after taking time to consider), issue, but not after the expiration of six months an original, on which a concurrent writ might after the date of such renewed writ. The rule would therefore be made absolute, but without
The Legal Observer,
Still attorneyed at your service."-Shakespeare.
SATURDAY, JANUARY 12, 1856.
THE PROPOSED LAW UNIVERSITY. |no doubt, have been willing that the Presi
dent and Vice-President of that incorporated society should also be members of the Senate; but all this is overlooked in the Commissioners' scheme, and the Attorneys are left to work their own way in any improvements which may be proposed in their branch of the Profession. We are not sure, however, whether the general body of practitioners in that branch of the law may not prefer that such should be the case.
THE near approach of the next Session of Parliament, and the probability that a Bill will be introduced to effectuate the whole, or a considerable part, of the recommendations of the Commissioners on the Inns of Court and Chancery, induce us again to direct the attention of our readers to the important project of a Law University. As recently stated in these pages, the Commissioners have thought proper to deal only with the interests of the Bar, although the Commission required them to inquire and report on the Inns of Chancery as well as the Inns of Court. It is true they have stated very fully in the Appendix to their Report the evidence and statements laid before them by the officers of the Inns of Chancery; but the Report itself, though it contains a single paragraph on the Inns of Chancery, is silent in regard to any improvement of the second branch of the Pro- Let us examine the first proposition. The fession, and yet the statements contained in history of the Inns of Court shows that the evidence and documents handed in on whilst the Attorneys were admitted into the part of the Incorporated Law So- those societies they were always considered ciety show that by ancient rules of Court as an inferior order of persons, and numethe Attorneys were entitled, and indeed re-rous regulations were from time to time quired to be, members either of the Inns of made for restraining their admission, and Court or Inns of Chancery; and their interests, we conceive, ought to have received the attention of the Commissioners.
We proceed to consider the two propositions which are brought under the consideration of the Attorneys and Solicitors. The 1st is, to exert all their power and influence to be included in the proposed University; and this proposal has, no doubt, several attractions. The 2nd is, to form a College for themselves, like the surgeons and apothecaries, governing their own affairs, independently of the higher branch of the Profession, and in accordance with the example of their medical brethren.
undoubtedly all rank and honour were monopolised by the members of the Bar. But it may be said that the regulations or ordiIt was proposed, some time ago, by Lord nances of the new University would prevent Brougham, that the Law University which similar injustice. This result, however, it he recommended should include the whole is evident would mainly depend on the conProfession, and that the Principals of the stitution of the governing body; and it can Inns of Chancery, as Attorneys, should scarcely be expected that the Attorneys form part of the Senate. Lord Brougham would be fairly represented in the Senate was Chancellor when the charter was grant- either as to number or influence. ed to the Society of Attorneys, and would, voice can it reasonably be expected they
The Proposed Law University.
would have in the making or enforcing the | in England and Wales, and that they should bye-laws of the University?
be required to enrol themselves either in the Incorporated Law Society or in one of the Inns of Chancery. The provincial Attorneys should of course be admitted to the corporate body on payment of a very small fee; the London Attorneys who would have an opportunity of resorting to the library and lectures, and possess other advantages at the Law Institution, might properly be called upon to pay a moderate annual subscription as well as a reasonable admission fee, unless they were already members of the Society.
It may be asked, will that part of the governing body, which is to consist chiefly, if not wholly, of Barristers, consent that an Attorney (like a medical man) may, on due examination, pass from one branch of the Profession to another? Will any power be given to the Attorneys in the election of the members of the Senate? Will they have any voice in the admission or rejection of students as members of the University? If not, what is to be their position, their rights or privileges, as members of the united branches of the Profession? We could un- It has already been intimated that two derstand the scheme as somewhat feasible, important steps are under consideration for if there were to be three gradations of rank: the further improvement of the second the first degree being that of Attorney-at- branch of the Profession: namely, first, an Law (like a Bachelor of Arts); the second, examination into subjects of literature and Barrister-at-Law (like the Master of Arts); science as well as the law and practice, to and the third, Serjeant-at-Law (like a Doc- be passed either before articles of clerkship tor of Laws). But no such plan is pro- or before admission; and second, a classifiposed. It is not enough to say that it will cation of a certain number of candidates who be desirable to incorporate all ranks of the may pass the examination in a superior Profession in one College of Justice or Law manner. University. The Attorneys have already attained a legal position by the Statute Law, as well as ancient usage, from which they ought not to be displaced without a secure prospect of substantial advantage.
The incorporation of the whole of the 10,000 practitioners would enable the Council of the College to increase the number of lectures, to extend the library, to investigate more effectually the complaints of malpractice, and to promote the just interests of their branch of the Profession. Our readers will take these hints into their consideration, and we shall be glad to receive and give publicity to any observations, either pro or con, upon the topics we have thus submitted for discussion.
At present the Law relating to Attorneys is clearly defined in the several Statutes and Rules of Court by which they are regulated. Their qualifications are distinctly set forth; they are examined by members of their own branch of the Profession, and are themselves eligible in due season to become examiners. The Judges of the Superior Courts hear and decide in public all It is stated in the Report of the Comquestions affecting the professional conduct missioners that they caused "questions of Attorneys, and they alone can suspend calculated to elicit the opinion of the Prothem from practising or remove their names fession upon this subject to be largely cirfrom the Roll. The Attorneys have an In- culated." In an able article in Blackstitution of their own where they are all wood's Magazine of this month, after quotequal, and where the governing body are ing the above passage, the Writer marvels elected and removable by themselves. Now that of 13,000 lawyers so few returned whatever weight may be attached to these answers to the questions or attended the circumstances, it is at all events necessary Commissioners. This number includes the that the Attorneys should take them into consideration and determine the course they may think it expedient to adopt.
On the other hand, the 2nd proposition is that a College of Attorneys should be formed of the whole body of Practitioners
1 The Commissioners recommend a degree of " Master of Laws" to be conferred on successful students at the Examination before they take the degree of Barrister-at-Law. This does not appear to be a well-chosen title for the lowest degree of Law Graduates.
Attorneys, and it is made somewhat of a reproach that only three of them gave evidence. Now we believe that no such questions were ever sent to the Attorneys; probably the circulation was confined to members of the Bar, and it was not in
2 It will, of course, be understood that we have no authority to state that these suggestions are in any way sanctioned by the Incorporated Law Society, but we offer them for the consideration of our professional brethren in general.