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Superior Courts: Queen's Bench.-Q. B. Practice Court.-Common Pleas.
66, s. 3 did not prevent such removal, although one was under the age of nurture, and the others 8 and 11 years old, inasmuch as they were not at the time residing with their mother, and she had abandoned them.
THIS was an appeal from an order of removal of three pauper children, two of whom were of the ages of 11 and 8 and the other under the age of nurture, without their mother, from the parish of St. Nicholas, Ipswich, to Coombe their place of settlement. It appeared that the childrens' mother was in extreme poverty and unable to provide them with food and clothing, and was besides living with another man by whom she had had several children, and that their uncle found them in the streets in a destitute state and relieved them several times, and ultimately, with their mother's consent, he obtained an order for their admission into the workhouse where they stayed for upwards of three months until their removal now appealed against.
THIS was an appeal from the decision of the revising barrister for the borough of Cardigan, rejecting the list of voters on the ground that it was not signed by a majority of the overseers under the 6 Vict. c. 18, s. 13, which enacts, By the 9 & 10 Vict. c. 66, s. 3, it is enacted, that "the overseers of every such parish or that "no child under the age of 16 years, whe- township shall, on or before the last day of ther legitimate or illegitimate, residing in any July in every year, make out or cause to be parish with his or her father or mother, step- made out, according to the Form numbered 3 father or stepmother, or reputed father, shall be in the Schedule B. to this Act annexed, an removed, nor shall any warrant for the removal alphabetical list of all persons who may be enof such child from such parish, in any case titled to vote in the election of a member or where such father, mother, stepfather, stepmo-members to serve in Parliament for such city ther, or reputed father, may not lawfully be reor borough," &c., “and the said overseers moved from such parish." shall sign such lists."
Mills and Bulwer for the respondents; Dasent and Worlledge for the appellant.
The Court said that the Statute did not prevent the removal of the two children above the age of nurture, as when the order was made they were not residing with their mother who had abandoned them, and with respect to the child under the age of nurture, it had been already separated from the mother. The order of removal would therefore be affirmed.
In order that a rule may go for a quo warranto on burgesses, it should be shown primâ facie that they have usurped or acted in such office.
THIS was a rule nisi for a quo warranto on various burgesses of Shrewsbury on the ground that they were not qualified to act, although on the burgess roll. It appeared that application had been made to the revision Court to strike their names of the Roll, but the notice of objection having improperly described the parties, the names could not be removed. The defendants did not appear to oppose such application. Alexander showed cause against the rule; Welsby in support.
The Court said, it had not been shown primá facie that the defendants had ever usurped or
By s. 35, it is enacted, that "the town clerk seers for the time being of every parish or of every city or borough, and the several overtownship therein," "shall attend the first Court to be holden before every such barrister for every such city or borough," "and the said overseers, town clerks, &c., respectively, shall at the opening of the said Court, deliver to the said barrister the several lists so made by them respectively as aforesaid." Bailey in support.
Cur. ad. vult.
The Court said, that the question was whequired by s. 35 to deliver to the revising barther, if the list which the overseers were re
rister, were delivered but not signed, it was valid or not. It was not disputed that a list had been made out, and the question was, whether the enactment as to its being signed was compulsory or directory; in the former case the list would be altogether void, but in the latter it must be received although improperly signed. The reason of the Legislature for requiring the list to be signed was probably to give notice that it was the authentic list, and if that were so, it might be proved by other evidence. The words of the Act were directory only, and the appeal would be allowed.
Court of Exchequer.
Kelsall v. Tyler and others. Jan. 23, 1856. FRIENDLY SOCIETIES' ACT.-ACTION TO RECOVER AMOUNT OF POLICY.-REFERENCE TO ARBITRATION OF DISPUTES.
Superior Courts: Exchequer.
A policy of insurance was effected with an institution which was enrolled under the 10 Geo. 4, c. 56, and on the death of the insured his administrator sued the representatives of the society to recover its amount : Held, that he was entitled to recover, and that the provision of s. 27 and of the society's rule providing for disputes between it and its members being referred to arbitration or being decided by justices did not apply.
Quære, whether such a society is a friendly society or authorised to issue such policies. THIS was a special case for the opinion of the Court. It appeared that a person had effected an insurance on his own life with an institution, which had been enrolled under the 10 Geo. 4, c. 56, and that on his death the plaintiff as his administrator brought this action to recover the amount thereof.
appeared that the advances made exhausted the fund, but he, notwithstanding, brought this plaint, under the 9 & 10 Vict. c. 95, s. 65, to recover the legacy, abandoning the excess: Held, that the case was one of a complicated trust and not within the jurisdiction of the County Court, and a rule for a prohibition was made absolute. THIS was a motion for a rule nisi, for a prohibition against the Judge of the Liverpool a plaint which was brought by the plaintiff, County Court, against further proceedings in under the 9 & 10 Vict. c. 95, s. 65. It appeared that the testator had given certain furniture, &c., to the defendant, his executor, in trust to sell and invest 1007., together with the interest thereon until the plaintiff should attain his majority, when the same was to be paid, but with power to advance the whole or a portion, as might be deemed advisable. It also apBy s. 27 of the Act it is enacted, that "pro- peared that the plaintiff's mother was at the vision shall be made by one or more of the rules time a pauper, and that the defendant had adof every such society, to be confirmed as re-vanced moneys for his support and benefit quired by this Act, specifying whether a reference of every matter in dispute between any such society, or any person acting under them, and any individual member thereof, or person claiming on account of any member, shall be made to such of His Majesty's Justices of the peace as may act in and for the county in which such society may be formed, or to arbitrators to be appointed in manner hereinafter directed." And one of the rules of the society made thereunder provided for the reference to arbitrators of every matter in dispute between the institution and any member or any person claiming on account of any member.
Watson and Tomlinson for the plaintiff; H. Hill and Kemplay for the defendants, the representatives of the society.
The Court said, that the business conducted by the defendants was of an ordinary life insurance society and was not warranted by the Friendly Societies' Acts. The word "insurances in the 9 & 10 Vict. c. 27 only meant insurances whereby benefits were secured to members or their wives and families in case of sickness and not ordinary insurances. Nor was the present claim a dispute with, or a claim on account of, a member, as it was made by the plaintiff on his own account Besides, it was very doubtful whether the society was under the circumstances a friendly society or authorised to issue life policies. The plaintiff was therefore entitled to judgment.
Hewston v. Phillips. Jan. 26, 1856.
COUNTY COURT ACT.-COMPLICATED TRUST.
A testator appointed the defendant his executor, and gave him certain furniture, &c., in trust, to sell and to invest 100l., together with the interest thereon, until the defendant should come of age, when the same was to be paid, but with power of advancing the whole or any portion if desirable. It
until the fund was exhausted, but on his attaining the age of 21 he, notwithstanding, brought this plaint, abandoning the excess.
Aspland showed cause, in the first instance citing Spears v. Wilson, 6 Exch. 833; Milward in support, referred to In re Fuller, 2 Ellis & B. 573.
The Court said, there was a difference between a legacy in the hands of an executor and of both an executor and trustee, and that the County Court had no jurisdiction. The rule for a prohibition was therefore made absolute.
Mann v. General Steam Navigation Company.
ACTION AGAINST CARRIERS. -
In an action against steamboat carriers for
THIS was an action to recover damages for the non-delivery within due time of a package containing a number of smaller parcels, which
1 Which enacts, that "the jurisdiction of the County Court under this Act shall extend to the recovery of any demand, not exceeding the sum of 207., which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of a distributive share under an intestacy, or of any legacy under a will."
Superior Courts: Exchequer.-Crown Cases Reserved.
was sent by the plaintiff by one of the defend- ceased was the defendants' servant and not ant's ships to Glasgow, and also for the loss of Moss's, who was only their servant and not a two customers in consequence of such delay. sub-contractor. The action could not therefore The defendants paid money into Court in re-be maintained. spect of the first damage, but contested the other, and on the trial before Wightman, J., the jury found this sum sufficient, and assessed the damages for the loss of custom at 157., with leave to move.
Edwin James and Hawkins showed cause against the rule which had been accordingly obtained; Montagu Chambers in support.
The Court said, that the loss of the customers in consequence of the delay of the parcels was not such a direct or probable result for which the plaintiff was entitled to recover, and the rule would therefore be made absolute.
Wiggett v. Fox and another. Jan. 28, 1856.
The defendants accepted the contract of cer-
THIS was an action by the widow and administratrix under the 9 & 10 Vict. c. 93, to recover damages on her husband's death. It appeared that the defendants had accepted the contract for the building of the water towers at the Sydenham Crystal Palace, and that they had engaged by piecework, a person named Moss, to do part of the work, but they paid him a salary of 6s. a day. He employed the plaintiff's husband as a labourer, and while working he was killed by an iron runner falling on his head, and which was dropped by one of the defendants' servants. The deceased was
paid by the week by the defendants. On the trial before Wightman, J., the plaintiff obtained a verdict, and this rule nisi was thereupon
C. Pollock showed cause. The Court (without calling on Channell, S. L., and Prentice in support) said, that where persons were employed for a common object and had an opportunity of seeing what danger there was, the law cast on them the duty of guarding against it by quitting their work or getting the danger removed. If a person employed a servant, and used reasonable care in obtaining careful servants, he was free from liability arising from an injury by one to the other, although if he knowingly allowed a negligent servant to remain in his employ, the case might be different. Here there was, however, no imputation of the kind, and the de
Crown Cases Reserved.
Regina v. Moah. Jan. 26, 1856.
The prisoner was collector of inland revenue
THIS was an indictment against the prisoner who was employed in the collection of inland revenue in Cheshire, for having received in the service of the Crown a sum of 5,000l. and stolen the same. It appeared, on the trial before Cresswell, J., that it was the prisoner's duty to receive the amounts and to account for and pay over the same on the surveyor calling for that purpose, and that on his so calling and showing the receipt by the prisoner of 5,2147. and inquiring whether he was prepared
the same, the prisoner had replied in the negative, and on being reminded that he had received and not paid 300%. for excise duties a few days previously, he took out about 300l. and said it was all he had, and that he had spent the remainder in unfortunate specula
Ballantine, for the prisoner, contended there was no evidence of the receipt and misappropriation of any particular sum, so as to support indictment under the 2 Wm. 4, c. 4. The Court (without calling on Welsby for the prosecution) affirmed the conviction.
In the case of Streatfield v. Streatfield (L. C.), ante, p. 170, the marginal note states that the decision of the Vice-Chancellor Stuart (which was the subject of the appeal) was with reference to the real estate. It appears that the question related only to the personal estate. There was no dispute between the parties as to the real estate, but solely whether the plaintiff took an absolute interest in the personal estate, or whether there was a contingent bequest over to the testator's brother of the personalty, as well as a contingent remainder in the real estate.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare.
SATURDAY, FEBRUARY 9, 1856.
SUMMARY OF LAW BILLS IN
That seven or more persons may subscribe a memorandum of association and form themselves into an incorporated company, with or without limited liability; but not more than 20 shall associate, having gain for its object, unless registered under this Act, or by Act or Charter.
The Government have lost no time in bringing forward several important and beneficial measures for the consideration of Parliament. In the foremost class we may place the Law of Partnership-amendment The memorandum of association is to Bill, and the Joint-Stock Companies Bill. These propositions are of great importance both to the Public and the Profession. a subsequent article we have set forth the principal statements and explanations of Mr. Lowe, who ably introduced the Bills, fully detailing the grounds on which these measures are supported by the Government.
Great satisfaction was expressed in favour of the general principles of the proposed Acts by Mr. Collier, Mr. Malins, Lord Goderich, Mr. Cardwell, and Mr. J. G. Phillimore. It appears highly probable, subject to the consideration of the provisions in detail, that the Bills will be speedily passed.
1. The name of the company;
3. The liability, limited or not;
5. Number of shares and amount of each share; and
6. The word "limited" is to be the last word in the name of the company.
The company is to keep a register 1 of shareholders, with names and addresses; amount paid by each; when entered as a shareholder; and when ceased.
We come next to the Leases and Sales of Settled Estates Bill, to which we referred at the opening of the Session. It has been deemed useful to set forth the clauses of The Bill relating to the general Law of this Bill fully, and we have appended a few Partnership is very concise:-it merely notes relating to alterations effected in the proposes to enact that the advance of capi- Bill of last Session, but which have been tal to be used in trade or undertaking (not disregarded in the reprint. The clause being that of a banker) upon a contract that preventing persons who had applied to Parthe lender shall receive a share of the profits, shall not of itself render the person making the advance liable to third persons as a partner.
Again, that no contract for the remuneration of a servant or agent by a share of the profits shall, of itself, render such servant or agent responsible as a partner.
liament for extended powers from the advantages of this Act, can scarcely be defended on any just principle; but we certainly think that tenants for life, or other persons entitled to the rents of estates, which may be sold under this proposed Act, ought
1 Should not this Register be kept in some The Joint-Stock Companies Bill, after public office of convenient access, instead of exempting bankers and insurance Compa- the company's own office ? nies from its provisions, proposes― 2 See p. 279, post. VOL. LI. No. 1,457.
Law of Partnership, Limited Liability and Joint-Stock Companies.
to be better provided for than they are in the present Bill.
liability. But it was clear, from the terms of the Act itself, that it contained a temporary element, and on that account, if on no other, the measure of last Session must be considered the whole subject was under the thorough reone of a temporary nature. In the mean time, view of the Government. The questions they had now to consider were two-how the principle of limited liability could be applied to
The Government Bill relating to the abolition of Tolls and the adjustment of Dues on Shipping, will, we presume, receive the sanction of the House. Our shipping interest should be relieved of all possible burthens and by every possible means encouraged. The prosperity of the country private partnerships, and how the law relargely depends on the wise and efficient support of this branch of our national resources and prosperity.
So far regarding the measures of Government. We come now to other proposed
amendments of the law.
Mr. Craufurd's proposed extension of the powers of the Courts of England to enforce by execution the judgments of the Courts of Ireland and Scotland, and of the latter Courts to enforce those of England, and each other, seems a necessary measure. The grounds of opposition do not appear to be satisfactory, and we hope the learned member will persevere in his object.
specting joint-stock companies could be amended and improved. Two Bills, one relating to private partnerships and the other to joint-stock companies, were therefore prepared.
He should now proceed to explain, in the first place, how the law stood with regard to private partnerships. They were very little interfered with by the law of England, and they were left very much as they stood at common law. The great grievance complained of was not the want of limited liability, strictly so called-that was to say, the want of a power in a partner, known to a creditor, to contract with that creditor that he should not be liable beyond a certain amount. It was rather the converse of that case which was the subject of complaint-namely, that the dormant partner in a concern should be made liable, not merely for the capital he embarked in it, but to the extent of his entire property upon which the creditor had never given any credit at all. That the question was how they should deal with it. was the nature of the particular grievance, and
The subject of the Ecclesiastical Courts, it will be observed, is taken up by Mr. Collier, instead of the Solicitor-General. Mr. Collier proposes to divide the Testamentary Jurisdiction of Doctors' Commons between the Superior Courts of Common But there was another question arising out Law and the County Courts,-according of the present state of the law as affecting pri(we presume) to the amount in question. But where is the machinery in these Courts to work the business thus proposed to be transferred? 3
Mr. Napier proposes to establish a department of Public Justice :-in other words, to create a Minister of Justice, with competent officers to watch over the administration of justice;-to prepare Bills for Parliament on behalf of the Government, and to examine all other Bills;-and generally to superintend their progress. This is an "object devoutly to be wished."
vate partnerships which had also to be considered. The House was aware that by an Act recently passed the usury laws were repealed, but when that Act passed there was probably not a single person who thought of its effect on private partnerships. The repeal of the usury laws, however, completely altered the position of persons lending money to partnerships. It was the opinion of Baron Bramwell, who was well acquainted with the principles of political economy, and still better, he would take leave from his evidence before the Mercantile Law to say, with the law of the land, as appeared from his evidence before the Mercantile Law Committee, that it was perfectly competent for a person to lend money to a partnership, reserving as much as 50 per cent. by way of penalty, with an agreement that it was not to be enforced if he was paid a rateable share of profits of the concern for the loan. That view was also taken by Lord Eldon in exparte Hamper1 It followed from that it was at the present time On the 1st February Mr. Lowe moved reso-ship, and to receive part of the profits by way possible to lend money to a private partnerlutions on which to found Bills for altering of interest on the loan. It was not the intenand amending the law of partnership, and for tion of her Majesty's Government to narrow or incorporating and regulating joint-stock com- to limit the power which persons now possessed panies and other associations. During the last to enter into these contracts. The point of Session an Act had been passed through Par-view adopted by the Government was to take liament for the purpose of enabling joint-stock things as they stood, and, if anything, to encompanies to enjoy the advantages of limited large rather than to narrow the powers already 3 It has since been announced that the Go-existing. It being the present state of the law vernment intend to introduce a Bill on this
LAW OF PARTNERSHIP, LIMITED LIABILITY, AND JOINTSTOCK COMPANIES.
DEBATE IN THE HOUSE OF COMMONS.
1 17 Ves. 404.