« EelmineJätka »
190 Notes of Week.--Superior Courts: Lord Chancellor.-Lords Justices.-V.C. Stuart.
Mr. Arthur Alexander Corsellis, Solicitor, Mr. Henry Sharpe has been appointed Prohas been appointed Clerk to the Magistrates vost Marshal of Grenada. and Clerk to the Board of Works for Wands- Mr. Albert Allom has been appointed Coworth.
lonial Secretary at Tobago. Mr. Bouverie Alleyne has been appointed Mr. Charles Berkeley has been appointed CoColonial Secretary of Grenada.
lonial Treasurer at Tobago.
RECENT DECISIONS IN THE SUPERIOR COURTS.
cutors, administrators, and assigns, and
the mortgayee assigned, subject to the Wickendon v. Rayson. Nov. 9, 1855.
equity of redemption. The assignee died CREDITOR'S suit.-SALE SUBJECT TO DEBT intestate, and his heir-at-law administered OF MORTGAGEE, PARTY TO SUIT.
and died after having given due notice Although a mortgagee is made a party to a of sale, and the plaintiff obtained admi.
creditor's suit, held, varying the decree of nistration to his estate, and contracted to Vice-Chancellor Stuart, that a sale cannot sell to the defendant : Held, affirming the be ordered except subject to the mortgage,
decision of Vice-Chancellor Stuart, with and the sale will not be directed, and the costs, that he could show a good title on mortgage debt to be discharged out of the the trustee of the legal estate from the heir. assets.
at-law joining in the conveyance to the deIn a creditor's suit, the mortgagee was made fendant. a party, who, it was admitted, had priority, and It appeared on this appeal from the Vicethe bill prayed that his mortgage might be dis- Chancellor Stuart (reported i Kay & J. 371), charged out of the assets. The Vice-Chan- that certain freehold premises were conveyed cellor Stuart having directed a sale and for the by way of mortgage to secure the repayment of mortgage to be redeemed, the mortgagee ap- 1,0001. with interest, with a power of sale to pealed.
the mortgagee, his heirs, executors, adminiBy the 15 & 16 Vict. c. 86, 8. 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 incum- the ground that he had not the legal estate. brances, or giving the usual or any time to re- The plaintiff thereupon obtained a conveyance deem; provided that if such request shall be from the heir-at-law to a trustee upon trust for made by such subsequent incumbrancer, or by the plaintiff or other the personal representathe mortgagor, or by any person claiming tive of the assignee of the original mortgagee. under them respectively, the Court shall not and the assignee of the legal estate undertook direct any such sale, without the consent of the to join in the conveyance. This suit was brought mortgagee or the persons claiming under him, for a specific performance. The Vice-Chanunless the party making such request shall de- cellor having made a decree for the plaintiff, posit in Court a reasonable sum of money to this appeal was presented. be fixed by the Court, for the purpose of se- Bird in support; W. D. Lewis, contrà. curing the performance of such terms as the The Lords Justices dismissed the appeal, Court may think fit to impose on the party with costs. "making such request.”. Craig and Bevir in support; Malins and W.
Ware v. Watson. Nov, 12, 1854. the Vice-Chancellor Stuart must be varied, by SALE UNDER DECREE.-OPENING BIDDINGS directing the sale, subject to the mortgage.
Upon an advance in price of 3001. on 2,7701. Lords Justices.
-ADVANCE IN PRICE.
on a sale under decree, held, that leave Saloway v. Strawbridge. Nov. 12, 1855. would be given to open biddings, under the
59th Order of October 16, 1852, although
eight days had elapsed since the certificate -SPECIFIC PBRFORMANCE.
of the sale was filed, where the ciroum. Freehold premises were conveyed with a power
stances showed the applicant had not had of sale to the mortgagee, his heirs, exe
an opportunity of bidding that price at the sale,
MORTGAGE. REPRESENTATIVE OF MORT:
GAGEE. ASSIGNEE OF LEGAL ESTATE.
Superior Courts : V. C. Stuart.- Queen's Bench.
191 This was an application by way of adjourned the removal of a pauper, that the pauper's summons, for leave to open the biddings, upon husband had rented a house in the appellant an advance in price of 300l. on 2,770l. of pro- parish for three-quarters of a year, and paid perty sold under decree. It appeared that the rent and taxes for that time until his death, more than eight days had elapsed since the and that the pauper (bis widow) had continued certificate of sale was filed.
the occupation until the end of the year, and By the 15 & 16 Vict. c. 80, s. 34, it is en- paid the rent and taxes due. acted, that “when any certificate or report of By the 6 Geo. 4, c. 57, s. 2 it is enacted that the chief clerk shall have been signed and “ no person shall acquire a settlement in any adopted by the Judge the same shall be filed parish or township maintaining its own poor, in like manner as reports are now filed, and by or by reason of settling upon renting or shall thenceforth be binding on all the parties paying parochial taxes for any tenement not his to the proceedings, unless discharged or varied, or her own property,” “unless such house or either at Chambers or in open Court, accord- | building or land shall be occupied under such ing to the nature of the case, upon application yearly hiring, and the rent for the same to the by summons or motion within such time as amount of 10l. actually paid for the term of shall be prescribed in that behalf by any Ge- one year at the least.” neral Order of the Lord Chancellor; and no- Pashley and Huddleston for the respective thing herein contained shall prejudice or affect parties. the power of the Court at any time to open any 'The Court said that the executors were prosuch certificate or report upon the same or the perly the occupiers and not the widow, who like grounds as any report of a Master of the was not liable for the rent, and that the order said Court which has been absolutely confirm- of removal must therefore be quashed. ed may now be opened ;” and Order 51 of October 16, 1852, directs, that “the time Regina v. Justices of Ely. Nov. 8, 1855. within which an application may be made by summons or motion to discharge or vary any
CERTIORARI.-QUASHING WARRANT OF certificate or report which has been signed and
REMAND BY JUSTICES.-ACTION. adopted by the Judge sitting in Chambers, is The applicant was remanded by justices, and to be eight clear days after the filing of such on the day of remand he was discharged, certificate or report."
the charge proving to be groundless. A Malins in support; Speed contra.
rule was refused for a certiorari to bring The Vice-Chancellor said that the new prac up the warrant to be quashed, and held, tice under Order 59' gave the Court a much that the 11 and 12 Vict., c. 44, 8. 2, only larger discretion as to time than before. The applies where there has been a conviction. applicant was willing to give a largely advanced This was a motion for a certiorari to bring price on the reserved price, and although he up a warrant of the defendants remanding the was represented at the sale by an agent with applicant in order to be quashed, preliminary unlimited authority, it did not appear he would to his bringing an action against the prosecutors have acted discreetly in continuing his bidding. I and the defendants. It appeared that on the There would therefore be the usual order, with day of remand the charge proved to be without liberty to the purchaser to apply at Chambers ground, and that the applicant was disas to his costs of investigating the title. charged.
N. Palmer in support.
The Court said that the 11 and 12 Vict., C. Queen's Bench.
44, s. 2,' only applied where there had been a Regina v. Inhabitants of St. Marylebone. conviction, and the rule was accordingly reNov. 7, 1855.
fused. ORDER OF REMOVAL.-SETTLEMENT.-PAYMENT OF YEAR'S RENT AND TAXES.
| Whately v. Crawford. Nov. 26, 1855. The pauper's husband paid nine months' rent COMMON LAW PROCEDURE ACT, 1854—IN.
and tores in the appellant parish, and on TERROGATORIE8.-ACTION AGAINST SURhis death his widow paid for the remaining VEYOR. three months. Held, that as the executors Leave given to the plaintiff in an action and not the pauper were liable, she had not against a surveyor for negligence in valuacquired a settlement under the 6 Geo. 4, ing certain property and ascertaining the c. 57, s. 2, and an order of removal to the amount of rent, to exhibit interrogatories appellant parish was quashed.
under the 17 & 18 Vict. c. 125, s. 51, for It appeared on this appeal from an order for the purpose of ascertaining what steps the
defendant had taken to ascertain the same. " Which directs, that “The power of the Court and of the Judge sitting in Chambers to Which provides, that “no such action enlarge or abridge the time for iloing any act shall be brought for anything done under such or taking any proceeding, and to give any spe- conviction or order until after such conviction cial direction as to the course of proceeding in shall have been quashed, either upon appeal or any cause or matter, is unaffecied by these upon application to her Majesty's Court of Orders.”
Superior Courts: Queen's Bench.--Exchequer. This was a rule nisi for leave to the plaintiff such renewed or any subsequently renewed in this action against a surveyor for negligence writ. in valuing certain property and ascertaining This vas a rule nisi to set aside a concurthe amount of rent, to deliver interrogatories rent writ of summons on the ground that it with the declaration to the defendant, under the had been issued more than six months after 17 & 18 Vict. c. 125, s. 51,' for the purpose of the date of its renewal under the 15 & 16 Vict. ascertaini what steps he had taken to ascer- c. 76. It appeared that the original writ had tain the same.
been issued and duly continued by alias and Huddleston showed cause against the rule, pluries writs before the Common Law Procewhich was supported by Phipson.
dure Act came into operation, and that it had The Court made the rule absolute.
been renewed thereunder from time to time.
By s. 12 it is enacted, that “where any writ Court of Erchequer.
of summons in any such action shall have been
issued before, and shall be in force at, the comDavies v. Roper. Nov. 6, 1855. mencement of this Act, such writ may at any NEW TRIAL.--AFFIDAVIT OF MISCONDUCT time before the expiration thereof be renewed
under the provisions of and in the manner diA rule was refused to set aside the verdict, rected by this Act; and where any writ, issued and for a new trial, on the affidavit of a
in continuation of a preceding writ according person who had been informed of the mis- to the provisions of the said Act of bis late conduct of the jury by one of their number. Majesty King William the Fourth, shall be in
force and unexpired, or where one month next This was a motion for a rule nisi to set aside after the expiration thereof shall not have the verdict and for a new trial, on the ground elapsed at the commencement of this Act, such of the misconduct of the jury.
continuing writ may, without being returned Welsby in support, upon the affidavit of a non est inventus or entered of record according person who had been informed of the circum- to the provisions of the said Act of his late stance of such misconduct by one of the jury- Majesty King William the Fourth, be filed in men.
the office of the Court within one month next The Court said that the affidavit of one of after the expiration of such writ, or within 20 the jury could not be received, still less that of days after the commencement of this Act; and another person, and the rule was therefore re- the original writ of summons in such action fused.
may thereupon, but within the same period of
one month next after the expiration of the conCole v. Sherard. Dec. 1, 1855.
tinuing writ, or within 20 days after the com
mencement of this Act, be renewed under the COMMON LAW PROCEDURE ACT, 1852.-con- provisions of and in the manner directed by
this Act; and every such writ shall after such A writ issued and duly continued by alias and renewal have the same duration and effect for pluries writs before the passing of the 15.4
. quently renewed, in the same manner
as if it
all purposes, and shall, if necessary, be subse16 Vict. c. 76, was renewed thereunder: Held, that a concurrent writ could not be had originally issued under the authority of issued thereon, except within six months of
this Act;" and by e. 9, that “the plaintiff in any such action may, at any time during six
months from the issuing of the original writ of "Which enacts, that“ in all causes in any of summons, issue one or more concurrent writ the Superior Courts, by order of the Court or or writs, each concurrent writ to bear teste of a Judge, the plaintiff may, with the declaration, the same day as the original writ, and to be and the defendant may, with the plea, or either marked with a Seal bearing the word 'concurof them by leave of the Court or a Judge may, rent,' and the date of issuing the concurrent at any other time, deliver to the opposite party writ'; and such Seal shall be provided and kept or his attorney (provided such party, if not a for that purpose at the offices of the Masters body corporate, would be liable to be called of the said
Courts, and shall be impressed upon and examined as a witness upon such matter) the writ by the proper officer of the Court out interrogatories in writing upon any matter as of which the original writ issued. Provided to which discovery may be sought, and require always, that such concurrent writ or writs shall such party, or in the case of a body corporate only be in force for the period during which any of the officers of any such body corporate, the original writ in such action shall be in within 10 days to answer the questions in writ- force.” ing by affidavit, to be sworn and filed in the
Hance showed cause ; Lush in support. ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all said, that when a writ was renewed it became
The Court (after taking time to consider), questions as to which a discovery may be sought within the above time, or such extended issue, but not after the expiration of six months
an original, on which a concurrent writ might time as the Court or a Judge shall allow, shall after the date of such renewed writ. The rule be deemed to have committed a contempt of would therefore be made absolute, but without the Court, and shall be liable to be proceeded
costs. against accordingly.”
CURRENT WRIT ON RENEWED WRIT.
THE PROPOSED LAW UNIVERSITY. no doubt, have been willing that the Presi
dent and Vice-President of that incorpo
rated society should also be members of the The near approach of the next Session Senate; but all this is overlooked in the of Parliament, and the probability that a Commissioners' scheme, and the Attorneys Bill will be introduced to effectuate the are left to work their own way in any imwhole, or a considerable part, of the recom-provements which may be proposed in their mendations of the Commissioners on the branch of the Profession. We are not sure, Inns of Court and Chancery, induce us however, whether the general body of pracagain to direct the attention of our readers titioners in that branch of the law may not to the important project of a Law Univer- prefer that such should be the case. sity. As recently stated in these pages, the We proceed to consider the two propoCommissioners have thought proper to deal sitions which are brought under the consionly with the interests of the Bar, although deration of the Attorneys and Solicitors. the Commission required them to inquire The 1st is, to exert all their power and in. and report on the Inns of Chancery as well fluence to be included in the proposed Unias the Inns of Court. It is true they have versity; and this proposal has, no doubt, sestated very fully in the Appendix to their veral attractions. The 2nd is, to form a Report the evidence and statements laid College for themselves, like the surgeons before them by the officers of the Inns of and apothecaries, governing their own afChancery ; but the Report itself, though it fairs, independently of the higher branch of contains a single paragraph on the Inns of the Profession, and in accordance with the Chancery, is silent in regard to any im- example of their medical brethren. provement 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 in- undoubtedly all rank and honour were moterests, we conceive, ought to have received nopolised by the members of the Bar. But the attention of the Commissioners.
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. What ed to the Society of Attorneys, and would, voice can it reasonably be expected they
VOL. LI. No. 1,453.
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 It may be asked, will that part of the Incorporated Law Society or in one of the governing body, which is to consist chiefly, Inns of Chancery. The provincial Attorif not wholly, of Barristers, consent that an neys should of course be admitted to the Attorney (like a medical man) may, on due corporate body on payment of a very small examination, pass from one branch of the fee; the London Attorneys who would Profession to another? Will any power be have an opportunity of resorting to the given to the Attorneys in the election of the library and lectures, and possess other admembers of the Senate? Will they have vantages at the Law Institution, might proany voice in the admission or rejection of perly be called upon to pay a moderate anstudents as members of the University? If nual subscription as well as a reasonable not, what is to be their position, their rights admissicn fee, unless they were already or privileges, as members of the united members of the Society. 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 The incorporation of the whole of the attained a legal position by the Statute 10,000 practitioners would enable the CounLaw, as well as ancient usage, from which cil of the College to increase the number of they ought not to be displaced without a lectures, to extend the library, to investisecure prospect of substantial advantage. gate more effectually the complaints of At present the Law relating to Attorneys malpractice, and to promote
the just interests is clearly defined in the several Statutes of their branch of the Profession. Our and Rules of Court by which they are regu- readers will take these hints into their conlated. Their qualifications are distinctly sideration, and we shall be glad to receive set forth ; they are examined by members and give publicity to any observations, of their own branch of the Profession, and either pro or con, upon the topics we have are themselves eligible in due season to be- thus submitted for discussion. come 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 Pro-them 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 Attorneys, and it is made somewhat of a consideration and determine the course they reproach that only three of them gave evimay think it expedient to adopt.
dence. Now we believe that no such On the other hand, the 2nd proposition questions were ever sent to the Attorneys; is that a College of Attorneys should be probably the circulation was confined to formed of the whole body of Practitioners members of the Bar, and it was not in
1 The Commissioners recommend a degree It will, of course, be understood that we of “ Master of Laws” to be conferred on suc- have no authority to state that these suggestions cessful students at the Examination before they are in any way sanctioned by the Incorporated take the degree of Barrister-at-Law. This does Law Society, but we offer them for the consinot appear to be a well-chosen title for the deration of
our professional brethren in lowest degree of Law Graduates.