230 Superior Courts: Lord Chancellor—V. C. Stuart. RECENT DECISIONS IN THE SUPERIOR COURTS. Lord Chancellor. Simmons v. Rose. Jan. 11, 12, 1856. WILL.-CONSTRUCTION.-REAL AND PERSONAL ESTATE.—PAYMENT OF LEGACIES. -PRIORITY. Be The Lord Chancellor said, that the case of Roberts v. Walker had been followed for many years and would not now be overruled. sides here the testator expressly directed the sale of the real estate and that it should form one fund with the personal. The decision of the Master of the Rolls was therefore right, and the appeal would be dismissed,-the costs to come out of the estate. Vice-Chancellor Stuart. A testator gave and devised all the residue of his freehold and copyhold messuages, lands, hereditaments, and premises, in trust for sale, and directed that the produce of such sale should be deemed to be part of his personal estate and be subject to the dispo- Scott sitions thereinafter made respecting his personal estate, and he directed his personal estate to be invested in 3 per cent. DEMURRER.—CONTRACTOR SUING FOR AC v. Corporation of Liverpool and Hawkesley. Jan. 12, 1856. COUNT. ANSWER OF ENGINEER. Held, that a proviso in a contract for the supply of water to a town under the directions of the corporation engineer and subject to his award and certificate, which provides that he should not be made a party or required to answer or defend any bill or proceeding either at law or in equity, does not entitle him to refuse to answer where it is alleged that he had fraudulently refused to certify, and there was no prayer for relief against him, and a demurrer was overruled, with costs. THIS bill was filed for an account of the annuities to secure the payment of the legacies and bequests: Held, affirming the decision of the Master of the Rolls, that the real estate was liable pro ratâ with the personal estate for the payment of the legacies and bequests, and not only to make up any deficiency in the personal estate. THE testator, by his will, dated in September, 1848, after directing the payment of his debts funeral and testamentary expenses, and specifically devising a portion of his freehold and copyhold estates, gave and devised all the residue of his freehold and copyhold messuages, lands, hereditaments, and premises to trustees in trust to sell by public auc-amount due to the plaintiffs for works done for tion, and he directed that the produce of such the Corporation of Liverpool under contracts sale or sales should be deemed to be part of his personal estate, and that the clear yearly rents and profits of the said hereditaments and premises in the meantime until the same should be sold, or of so much thereof as should remain unsold, should be deemed to be part of the annual income of his personal estate, and that the same moneys, rents, and profits should be subject to the dispositions thereinafter made respecting his personal estate and the annual income thereof; and in a subsequent part of his will he directed his trustees to invest his personal estate in the 3 per cent. annuities to secure the payment of the legacies and bequests given thereby. The heir-at-law contended that the personal estate was primarily liable for the payment of the debts and legacies, and the real estate only to the extent of any deficiency. The Master of the Rolls having held that the real and personal estate was liable to contribute in proportion to their relative amounts to the payment of the debts and legacies, and directed the real estate to be sold, this appeal was pre sented. Daniel and E. F. Smith in support; Lloyd and G. Lake Russell for the next of kin; Roundell Palmer, Lewin, F. O. Haynes and Hughes for other parties. The following cases were cited :-Boughton v. Boughton 1 H. of L. Cas. 406; Roberts v. Walker, 1 Russ. & M. 752; Tench v. Cheese, 19 Beav. 3; Bootle v. Blundell, 1 Mer. 193; Chitty v. Parker, 2 Ves. J. 271; Newton v. Bennett, 1 Bro. C. C. 135; Attorney-General v. Southgate, 12 Sim. 77; 12 Law J., N. S. 147; Robinson v. Taylor, 1 Ves. J. 44. dated in January, 1852, for supplying the town with water under the directions of the defendants' engineer and subject to his award and certificate. It appeared that one of the terms of the contract provided that the engineer of the works should not be made a party or required to answer or defend any bill or proceeding either at law or in equity, nor be compelled to explain any matter relating to any certificate or award by him, or in what manner he settled or omitted to settle any matter between the plaintiffs and the corporation, and also that if he should be put to expense by such means, the same should be paid to him by the plaintiffs and the corporation jointly. The plaintiffs made the engineer a party, alleging that he fraudulently withheld his certificate, to which this demurrer was put in. Wigram and Hawkins for the plaintiffs; Malins and Karslake for the defendants. The Vice-Chancellor said that the terms of the contract which excluded the jurisdiction of the Court was improper and of no effect, and even if they amounted to a release, a release as to fraud was not one to which this Court could give effect. There was no relief prayed against the engineer, and the prayer asked that the defendants might pay the costs. The demurrer would be overruled, with costs, and an answer be put in within six weeks. Vice-Chancellor Wood. African Steam Ship Company v. Swanzy. Superior Courts: V. C. Wood.-Queen's Bench. 231 E. James in support and on affidavits negativing the cheque being bona fide cashed by the defendant in the course of his business. Held, that the word "value" in the 17 & 18 | of the Falcon Tavern, Fetter Lane, had cashed Vict. c. 104, s. 504, limiting the liability it. The clerk subsequently paid in 157. 14s. 1d. of owners of ships to the representatives of to the plaintiffs' account. On the trial before persons lost, &c., to the value of the ship, Lord Campbell, C. J., at the last sittings at means the market value and not the value Guildhall, the defendant obtained a verdict on at which the ship may be insured. the plea that the cheque was not the property THIS was a motion for an injunction to re- of the plaintiff, and that he had cashed it in a strain actions at law which had been brought fair way of business. against the plaintiffs by the personal representatives of persons who had been lost in their ship Forerunner, which was wrecked off the coast of Africa. It appeared that she was insured for 10,000l., and the question arose whether that was to be taken as the value under the 17 & 18 Vict. c. 104, s. 504, which provides, that" no owner of any sea-going ship or share therein shall, in cases where all or any of the following events occur without his actual fault or privity (that is to say): 1, Where any loss of life or personal injury is caused to any person being carried in such ship," &c., " be answerable in damages to an extent beyond the value of his ship and freight due or to grow due in respect of such ship during the voyage, which at the time of the happening of any such events as aforesaid is in prosecution or contracted for," &c. James and Cole for the defendants; Rolt and Cairns for the plaintiffs. The Vice-Chancellor said that the simple meaning of the word "value" was what the ship would realise on a sale, and that any fanciful or arbitrary value of the owner as in the case of a yacht was out of the question. The value in the market fixed by Mr. Bailey of 5,900%. was therefore the amount which must be taken. Queen's Bench. Carlon and another v. Ireland. Jan. 11, 1856. CROSSED CHEQUES.-NEGOTIABILITY OF. Held, refusing a rule nisi to set aside the ver- The questions of bona fides in such payment and whether value was given are properly left to the jury. A rule for a new trial cannot be granted on affidavits which do not specify the names of persons who depose to facts contrary to the evidence on the trial; nor on the payment of the costs into Court. THIS was a motion for a rule nisi to set aside the verdict for the defendant, and for a new trial, of this action which was brought by the plaintiffs, who were solicitors, to recover the sum of 331. 13s. 10d., the balance of a cheque cashed by the defendant to their clerk, who was entrusted therewith for payment into the bank of Messrs. Dixon & Co. It appeared that the cheque, which was for 481. 17s. 11d., was drawn on Messrs. Masterman & Co. and crossed to the plaintiffs' bankers, and that their clerk had omitted to pay it in, and that the defendant, who was the proprietor The Court said that as the affidavits did not give the names of the persons stating the facts contrary to what was adduced in evidence, they could not be acted on, nor could the rule be granted simply on the plaintiffs' paying the amount of costs into Court. As to the misdirection, the jury were to consider whether the defendant took the cheque bona fide and gave value for it. It was quite clear that this was a cheque payable to bearer, and as such negotiable, and the question was, not whether it ought to have been paid into the bankers to whom it was crossed, but whether, being negotiable as payable to bearer, it could be restrained. It was very true that the nature of the instrument cast on the party cashing it due caution, but when that had been once established, the case was at end. The application, however, might be renewed on amended affidavits.' Regina v. Justices of Anglesea. Jan. 14, 1856. SIONS.-CONSTITUTION OF Court. An appeal from a poor rate was heard at Quarter Sessions and occupied two days. It appeared that on the second day a justice attended and took an active part in the hearing who had only heard the argument of one side, which took place on the second day: Held, refusing a rule to set aside their order that this was no objection to the proper constitution of the Court. THIS was a motion for a rule nisi to set asid an order made by the defendants at Quarter Sessions on an appeal by the Chester and Holyhead Railway Company against a poor rate. It appeared that the hearing lasted two days, and that on the second day a third justice attended and took an active part in the case and retired with the other two justices to consider the judgment, although he had heard none of the arguments of the other side, which took place on the first day. Pashley in support, on the ground the third justice had only heard one side of the question. The Court said that it might be very expedient to have the assistance of the third justice, if he were conversant with the law, in deciding the case, and that until the contrary was proved he must be presumed to have acted properly and according to law. It was not shown that the Court was improperly constituted, and the rule would be refused. Ackroyd v. Gills. Jan. 15, 1856. COUNTY COURT ACTS.-ASSISTANT CLERK. A rule nisi was subsequently granted. 232 Superior Courts: Queen's Bench.-Common Pleas.-Exchequer. -ATTORNEY IN PLAINT.-ACTION PENALTIES. Held, that the assistant clerk of a County Court cannot act as attorney for a party in a plaint in such Court. FOR for an advowson, and afterwards stated it was near Rye in Sussex, and that the price was 15,000l. The plaintiffs thought it would not suit, and offered to sell it to some one else, on the terms of three guineas for a register fee and five per cent. on the purchase-money, but it was subsequently arranged that the five per cent. should only be charged for commission. The defendant then sent the full particulars to the plaintiffs, who endeavoured to dispose of the property, but ultimately, on the defendant calling in December last, he informed them he had himself sold the property. On the trial before Cresswell, J., at the last Lewes Assizes, a nonsuit was directed. A rule was therefore made absolute to set aside a nonsuit in an action to recover a penalty of 501. under the 9 & 10 Vict. c. 95, s. 29, for acting in such a case. THIS was a rule nisi obtained on November 2 last to set aside a nonsuit in this action which was brought to recover a penalty of 50l. under the 9 & 10 Vict. c. 95, s. 30,' against the assistant clerk of the Knaresborough County Court, who had acted as the attorney for a party in a plaint in that Court brought by the plaintiff. On the trial before Platt, B., a nonsuit had been directed. Bovill and Baddeley showed cause; M. Chambers and Jacobs in support. The Court said that there was no doubt that By s. 29 of the 9 & 10 Vict. c. 95, it is en- the authority given to the plaintiffs was revoacted, that "no clerk, treasurer, high bailiff, or cable, and did not necessarily carry with it the other officer of the Court shall, either by him-power of revoking it without remunerating the self or his partner, be directly or indirectly en-plaintiffs for their trouble and expenses ingaged as attorney or agent for any party in any curred. Ordinarily if a person employed an proceeding in the said Court." J. Addison showed cause against the rule. The Court (without calling on Hugh Hill in support) said that they were strongly inclined to think the defendant was an officer of the County Court under the 9 & 10 Vict. c. 95, as he had the same functions and character as the other officers named, but that at all events the doubt was removed by the 13 & 14 Vict. c. 61, which referred to the assistant clerk as appointed under the former act. The rule would therefore be made absolute to set aside the nonsuit. Court of Common Pleas. Simpson and another v. Lamb. Jan. 14, 1856. agent he could not revoke the authority without paying for such trouble and expenses, but in this particular case the evidence showed that the plaintiffs were not to be paid unless they effected a sale, and the rule would therefore be discharged. Court of Exchequer. Lee and another, assignees, &c. v. Bissett; SOLICITOR.-BUSINESS DONE FOR COM MITTEE OF CLUB.-ACTION FOR. A solicitor, member of a club, was instructed The defendant employed the plaintiffs to sell an advowson agreeing to give 5l. per cent 3 last to set aside the verdict for the plaintiffs on a sale, and it appeared that they agreed and enter a nonsuit in these actions. It apto relinquish their usual fee of three peared on the trial before Martin B., at the guineas on registering. The defendant sittings after Trinity Term last, that the actions afterwards sold the advowson, but without were brought by the assignees of Thomas Brook the plaintiffs' intervention: Held, that B. Stevens to recover 2187. for work done by they were not entitled either to charge comthe bankrupt as a solicitor for the Military and mission or to be paid for their expenses and Naval Company Service Club, of which the defendant was a member. The club was projected THIS was a motion for a rule nisi to set aside in 1849 by the Earl of Cardigan, and closed in the nonsuit and for a new trial of this action 1851 pursuant to a resolution at a general which was brought by the plaintiffs, who were meeting of the members that its affairs should clerical agents, to recover their commission on be wound up. A petition was accordingly prethe sale of an advowson belonging to the de-sented under the winding-up Acts by Mr. fendant. It appeared that the defendant wrote to the plaintiff's in answer to an advertisement trouble incurrred. 1 Which enacts, that "every clerk, treasurer high bailiff, or other officer of any such Court who shall be, by himself or his partner, or in any way, directly or indirectly, concerned as attorney or agent for any party in any proceeding in the said court, shall for every such offence forfeit and pay the sum of 50l. to any person who shall sue for the same in any of her Majesty's superior courts of record, by action of debt or on the case." Stevens, the costs of which were now sought to be recovered. At a meeting of the members at which Mr. Stevens, who was also a member of the club, was present, a resolution was passed that any member paying 601. down should be discharged from all responsibility and the defendant had paid this amount. James and Lush showed cause against the rules, which were supported by Bovill and Garth. The Court said that the attorney was entitled to be paid for the work ordered by the committee, although he was a member of the club, and the rules were accordingly discharged. The Legal Observer, AND SOLICITORS' JOURNAL. Still attorneyed at your service."-Shakespeare. SATURDAY, JANUARY 26, 1856. THE APPROACHING SESSION OF, sioners' recommendations into effect, can be PARLIAMENT. LAW REFORM. IN a few days the Houses of Parliament will commence a new Session, the 19th and 20th of Her Majesty's reign, and it is expected that the Queen will open the Session in person. It may be anticipated that a flattering reference will be made to the prospect of Peace, and to the resumption of those domestic improvements which the War has wholly or partially suspended. satisfactorily considered by both Houses during the then remainder of the Session. The subject is so important, and so difficult we can scarcely expect a New Law to be effectually and practically to deal with, that passed in a single Session. attempt would be again made further to It was rumoured not long ago, that an alter the Law relating to Bills of Exchange. Lord Brougham gave notice to this effect, and the defect in the Forms contained in the Schedule to the Act regarding the recovery Whether Her Majesty will be advised to doubtful whether the Act would not beof Costs in the first process, rendered it pledge the Government to any specific come a "dead letter;" but the Judges set measures of Law Reform, we know not. the question at rest by their directions for "The least said, the soonest mended." amending the indorsement of the Writ and We understand, however, that the Testa- the Costs to be allowed. We cannot conmentary Jurisdiction of the Ecclesiastical ceive, therefore, that there are sufficient Courts will again undergo parliamentary public grounds on which to agitate the consideration, and therewith the subject of question again before the Legislature. At Divorce. It is certainly hard upon the all events, another year or two should be Proctors,- -we should not ourselves like-allowed to test the value of the last alterato be the constant theme of extensive tion before we hear again of the "Sumchange, if not of abolition. So far, we be-mary diligence" in such cases on the north lieve, as the Solicitors are concerned in the side of the Tweed. proposed reform, they would desire ample compensation to be awarded to those who Law will, however, no doubt be brought A far more important amendment in the may suffer by the contemplated transfer of forward in regard to Limited Liability Partthe Jurisdiction, but the amount is large nerships. We are told that the Act of last and difficult justly to assess. We also learn that the Real Property prehensive measure substituted. We trust Session will be repealed and a more comCommissioners will probably make their re- the principle will be retained and carried port by Easter on the proposed new scheme out more completely. Of course, the comof the Registration of Titles, in lieu of the panies which have been already registered various former projects of registering all and constituted under the sanction and in Deeds and Assurances. Allowing time for pursuance of the existing Statute will have the perusal of the Report, and the "venti- their rights preserved. No doubt, the gelation" of its propositions, it may be doubt-neral Law of Partnership requires amendful whether any Bill that may be brought ment, and the Bill of last Session which in for the purpose of carrying the Commis- was withdrawn, in order to carry an instalVOL. LI. No. 1,455. 234 The Approaching Session of Parliament.—Suggestions for Incorporating Inns of Chan. ment of the Limited Liability Bill, will in | SUGGESTIONS FOR INCORPORATall probability be revived. The important Bill no doubt, will be again brought forward to empower the Court of Chancery to adjudicate on the subject of the Leases and Sales of Settled Estates in certain cases, instead of incurring the enormous expense and delay of applying to Parliament by way of Private Bill. It is also probable that the Law of Mortmain will be again brought under the consideration of Parliament. So, also, may the Reversionary Interests of Married Women, regarding which Mr. Malins introduced a Bill last Session. The proposed power of enforcing Executions on Judgments, whether in England, Ireland, or Scotland respectively, we also expect will be renewed. Although the matter may not come before Parliament, except by the communication of the Orders which the Lord Chancellor may make, it is proper to mention on this occasion the expected revision of the Scale of Solicitors' Costs. We are not aware that the allowances which the Court may deem just towards the practitioners can require the sanction of Parliament. It is well-nigh 50 years since Lord Chancellor Erskine and Sir William Grant, the Master of the Rolls, made a considerable increase in Equity costs. Lord Hardwicke previously had exercised a similar under the genepower, ral jurisdiction of the Court; and we conceive the Lord Chancellor may justly follow these precedents and remove the injury under which the Solicitors at present labour. We cannot doubt that the proposed amendments will operate advantageously to the suitors of the Court, in expediting the proceedings in Chancery, and effectually removing the prejudice which has so long existed in regard to the delays in Chancery. The alterations that are expected will render it alike the interest, as the duty, of Solicitors to diminish both delay and expense in the conduct of the business entrusted to them. Such are some of the topics to which we wish to direct the attention of our readers at the outset of a New Session. We shall, week by week, bring under their notice the progress, if any, which may be made in these or other matters in any way affecting the Profession, and we invite their suggestions in aid of the views which we conceive are connected with the well-being of our brethren. ING THE INNS OF CHANCERY. PREPARED BY MR. CLODE. [From the Appendix to the Commissioners' Report on the Inns of Court and Chancery.] THE Report of the Commissioners appointed in 1846 by the House of Commons "to inquire into the then present state of Legal Education, and the means for its further improvement and extension," contains the following statement (p. 53):— "It would have been desirable that the Inns of Chancery now, as it appears from Evidence, appropriated to Solicitors, and originally, at least, constituted on the same plan and for the same purposes as the Inns of Court, should, Law College,' under the direction of the chosen like the latter, be aggregated into a 'Solicitors' of their own Body, and having, like the Inns of Court, the Judges as their Visitors, this (the Report continues) would give a certain unity and harmony to the System, and place the Solicitor in a proper position in reference to the other Branch of the Profession." It is respectfully submitted to her Majesty's Commissioners "for Inquiring into the armoting the study of Law, and securing a rangements in the Inns of Chancery for prosound Education to the Students," that this recommendation of the Committee of 1846 can and should be carried out for the reasons:1st, That the advantages of those Societies belong to the Attorneys and Solicitors of England as a Class; and 2nd, That these Societies could with facility be formed into a Law College for the Education of Students for that Branch of the Profession. it will be necessary to advert briefly to the In dealing with the first subject of inquiry, common origin of these Societies, and to trace the period at which they became (as they are now) separated from each other, and held by distinct classes in the Profession (which at their Institution recognised but one common membership). 1st. The origin of the Inns of Court and Chancery Dugdale ascribes to the enactment contained in 9 Hen. 3, c. 11, whereby it was appointed that "Communia placita non sequentia Curiam sed teneantur in aliquo certo loco," and to the Commission issued in the 20th Edward 1,' whereby the Chief Justice and the rest of the Court were directed "to provide and ordain certain Attorneys and Lawyers of the best and most apt for their learning and skill, who might do service to his Court and people, and that those so chosen only, and no other, should follow his Court and transact the affairs therein." (Dug. 141, and vol 1 of Rolls of Parliament, 84 b.) The selection of a body of persons qualified The title to this is "De Attornates and Apprenticiis." |