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Notes of the Week.-Superior Courts: V. C. Kindersley.-Queen's Bench.
"I beg your lordship's pardon," retorted Mr. Hawkins, "but if your lordship will call it 'bus,' you will save two syllables and make it much more intelligible to the witnesses." The learned lord assented to the proposed abbrevi
form. Lord Campbell suggested, that the " omnibus," to which he gave its due length. word was as frequently contracted to "broom" which was just as well known, and the use of which would save a syllable. Henceforward Mr. Hawkins called it "broom." Presently the argument turned upon omnibuses, and Lord Campbell frequently used the word ation.-The Times.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Major v. Amos. Jan 24, 1856.
EQUITY JURISDICTION IMPROVEMENT ACT.
Anderson and G. W. Collins in support;
The Vice-Chancellor said, that the bill should contain the address, but gave leave, on payment of the costs of the present application, to amend within a week.
Court of Queen's Bench.
WHERE OUT OF JURISDICTION.
Application granted under the 17 & 18 Vict. c. 34, s. 1 for an order for the issue of a subpoena ad. test. to a witness residing in Scotland, and who it was sworn was a necessary witness.
THIS was an application under the 17 & 18 Vict. c. 34, s. 1,2 for an order for the issue of a
Which enacts, that "before the name of any person shall be used in any suit to be instituted in the said Court, as next friend of any infant, married woman, or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill, information, or claim."
subpoena ad. test. to a witness residing in
T. Campbell Foster in support.
Brown and another v. Ackroyd. Jan. 17, 1856.
HUSBAND AND WIFE.-LIABILITY FOR EX-
Held, that a husband is liable to the expenses
The institution of such a suit is not justified by evidence only showing a temporary difference between the parties.
THIS was a rule nisi granted on November 3 last to set aside the nonsuit and enter the verdict for the plaintiffs in this action. It appeared that the plaintiffs were proctors at York, and brought this action to recover for work and labour performed by them in the Ecclesiastical Court in endeavouring to obtain a divorce, á mensa et thoro, for the defendant's wife on the ground of cruelty. On the trial before Platt, B., at the York assizes, it was admitted that the defendant's wife had retained the plaintiffs in the year 1854, and alimony to the amount of 2001. a year was decreed to the wife, pendente lite. The costs had been then taxed and paid by the defendant. The suit was not then proceeded with, but subsequently certain witnesses were examined, and the present action was brought to recover the costs thereby occasioned, upon the suit becoming abated by the death of the defendant's wife in February last. The questions arose whether the plaintiffs' claim could be considered as a necessary, and whether the wife had left the defendant's house under such circumstances as to clothe her with credit. H. Hill and Wills showed cause against the which was supported by Knowles and Ad
The Court said, that the husband was liable when the proceeding was for the wife's protec
2 Which enacts, that "if in any action or suit now or at any time hereafter depending in any of her Majesty's Superior Courts of Com-rule, mon Law at Westminster or Dublin, or the dison. Court of Session or Exchequer in Scotland, it shall appear to the Court in which such action is pending, or if such is not sitting, to any Judge of any of the said Courts respectively, shall so seem fit, to order that a writ called a that it is proper to compel the personal attend-writ of subpœna ad. test. or of subpœna duces ance at any trial of any witness who may not tecum, or warrant of citation, shall issue in be within the jurisdiction of the Court in which special form, commanding such witness to such action is pending, it shall be lawful for such attend such trial, wherever he shall be within Court or Judge, if in his or their discretion it the United Kingdom."
Superior Courts: Queen's Bench.-Common Pleas.
tion, and a divorce, à mensá et thoro, was in the same manner necessary as where articles of the peace were exhibited, and for the expenses of which he was liable; Shepherd v. Mackoul, 3 Campb. 326. Her proctor was, however, bound to make out a reasonable case of apprehension of violence. In the present case the evidence only showed a temporary difference between the parties, and afforded no occasion for the suit. The rule would therefore be discharged.
ground of the payment being a fraudulent preference. The assignees had taken no steps to assert their claim whilst the money was in the defendant's hands, and he must be considered as merely the conduit through which it passed, and it could not be considered in his hands as money had and received to the plaintiffs' use. Then, with respect to the portion of the money which was not paid over until after the adjudication. In order to decide whether this formed part of the estate, it was necessary to consider the nature of the contracts by which the
Nicholson and others v. Gooch. Jan. 25, 26, money was produced. These were, in fact,
BANKRUPT.- STOCK-BROKER. RIGHT OF
A member of the Stock Exchange became a
THIS was an action for money had and received by the defendant, who was the official assignee of the Stock Exchange, to the use of the plaintiffs, the assignees of a bankrupt member of the Stock Exchange, named Lodge. It appeared that the bankrupt being unable to meet his engagements, had given notice that he was a defaulter, and delivered up his books to the defendant, whose duty it was to collect the sums due to a defaulter from the other members, and to distribute the same among the creditors in the Stock Exchange. The defendant pleaded never indebted; that before he had notice of any act of bankruptcy he had paid away the money; and a special plea to the effect that the bankrupt was a member of, and subject to the rules of the Stock Exchange, that he had become a defaulter, and that the defendant, as official assignee, had distributed the money received from his debtors among the creditors in the Stock Exchange to the extent of 108. 6d. in the pound, and paid over the balance to the fund for decayed members as provided by the rules. It appeared on the trial before Lord Campbell, C. J., that the moneys due to the bankrupt were in respect of differences on the account. The question now came on in the form of a special case.
mere wagers as to the price of stock on the ac-
Court of Common Pleas.
The appellant entered into a contract for the
IT appeared that the appellant had contracted for the purchase of certain freehold land at Lewisham, and had paid the purchase-money,
1 "And whereas it is a frequent and mischievous practice for persons to sell and dispose of stocks or other securities of which they are not possessed, be it therefore enacted, &c., that all contracts and agreements whatsoever which shall, from and after the said 1st June, 1734, be made or entered into for the buying, selling, assigning, or transferring of any public or joint stock or stocks, or other public securities whatsoever, or of any part, share, or interest therein, whereof the person or persons contracting or agreeing, or on whose behalf the contract or agreement shall be made, to sell, assign, and transfer the same, shall not, at the time of making such contract or agreement, be actually possessed of or entitled unto in his, her, or their own right, or in his, her, The Court said, that the greater part of the or their own name or names, or in the name or money had been bona fide paid over by the de-names of a trustee or trustees to their use, shall fendant before the adjudication of bankruptcy, be null and void to all intents and purposes so that the plaintiffs' claim rested on the whatsoever."
Wilde and C. Pollock for the plaintiffs; Sir
Superior Courts: Common Pleas.—Exchequer.
but that the conveyance had been delayed in order to suit his convenience. The land was of sufficient value to entitle him to vote but was unlet, and he had never exercised any rights of ownership over the land. The revising barrister for the western district of the county of Kent having disallowed his claim to vote in respect of such land, this appeal was presented.
D. D. Keane, in support, cited 6 Vict. c. 18, s. 74; Macnamara, contrà. Cur. ad. vult.
The Court affirmed the decision of the revising barrister.
Court of Exchequer.
MENT UNDER S. 51.
A rule was made absolute for leave to the defendant to exhibit, under the 17 & 18 Vict. c. 125, s. 51, interrogatories to the plaintiffs in an action of ejectment, to inquire in what character or right they claimed to be entitled to the money in question, and the pedigree through which they claimed, but held, that they need not disclose the evidence of such pedigree.
THIS was a rule nisi on behalf of the defendant, in this action of ejectment, for leave to exhibit interrogatories under the 17 & 18 Vict. c. 125, s. 51,' to the plaintiffs to inquire in what character or right they claimed to be entitled to the premises in question, and the pedigree through which they claimed.
Sir F. Thesiger, Lush and Brandt showed cause against the rule, which was supported by Attorney-General, Bovill and Honyman.
The Court said, that interrogatories might be delivered in an action of ejectment, and that the defendant was entitled to what he asked, but not to a discovery of the evidence by which the pedigree was made out. The rule would therefore be made absolute.
Wicks v. Groves. Jan. 26, 1856.
1854.POWER OF AMENDMENT.-SECONDARY OF LONDON.
Held, that the 3 & 4 Wm. 4, c. 42, s. 23, does not empower the Secondary of London to amend the declaration in an action for goods bargained and sold, and for goods sold and delivered, by the introduction of a count for breach of contract in not accepting the goods.
Held, also, that the 17 & 18 Vict. c. 125, s.
96, only applies to Judges of the Superior Courts, and not to the Secondary of London. THIS was a rule nisi to set aside the verdict for the plaintiff, and enter a nonsuit in this action for goods bargained and sold and for goods sold and delivered. It appeared, on the trial before the Secondary of London, that he had amended the record by the introduction of a count in the declaration for breach of contract in not accepting the goods.
By the 17 & 18 Vict. c. 125, s. 96, it is enacted, that "it shall be lawful for the Superior Courts of Common Law, and every Judge thereof, and any Judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceedings under the provisions of this Act, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the Court or Judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing the parties shall be so made, if duly applied for.” suit the real question in controversy between
Hodgson showed cause against the rule, which was supported by Griffiths.
The Court said, that the Secondary had no power of making the amendment further than as was given by the 3 & 4 Wm. 4, c. 42, s. 23,1 as the 17 & 18 Vict. c. 125, s. 96, only applied to Judges of the Superior Courts, and that the former Act did not justify the amendment made, as upon its being made the jurisdiction was gone. The rule would therefore be made absolute.
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 Which enacts, that "it shall be lawful for of the Court or a Judge may, at any other time, any Court of record holding plea in civil acdeliver to the opposite party or his attorney tions, and any Judge sitting at Nisi Prius, if (provided such party, if not a body corporate, such Court or Judge shall see fit so to do, to would be liable to be called and examined as a cause the record, writ, or document on which witness upon such matter) interrogatories in any trial may be pending before such Court or writing upon any matter as to which discovery Judge in any civil action, or in any information may be sought, and require such party, or in the in the nature of a quo warranto or proceeding case of a body corporate any of the officers of on a mandamus, when any variance shall apany such body corporate, within 10 days to an- pear between the proof and the recital or setting swer the questions in writing by affidavit, to be forth, on the record, writ, or document, on sworn and filed in the ordinary way; and any which the trial is proceeding of any contract, party or officer omitting, without just cause, custom, prescription, name, or other matter, in sufficiently to answer all questions as to which any particular or particulars in the judgment a discovery may be sought within the above of such Court or Judge, not material to the time, or such extended time as the Court or a merits of the case, and by which the opposite Judge shall allow, shall be deemed to have party cannot have been prejudiced in the concommitted a contempt of the Court, and shall duct of the action, prosecution, or defence, to be liable to be proceeded against accordingly." | be forthwith amended," &c.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare.
SATURDAY, FEBRUARY 16, 1856.
PROGRESS OF LAW BILLS IN
I donor's will or settlement to suit their personal interests; but these so called "private Bills" are not passed without the assent of THE proposed amendments of the Law all necessary parties. This being so, it is now before the respective Houses of Par- evident that equal justice would be done by liament which are of prominent importance, delegating the power, which indeed is rather are:-1st. The Leases and Sales of Settled judicial than legislative, to the High Court Estates. 2nd. The Law of Partnership of Chancery with all its prepared machinery and Joint-Stock Companies. 3. The Ec- to inquire fully and satisfactorily into the clesiastical Courts.
rights and interests of the parties, and permit a sale to take place or leases to be granted for building or mining purposes, which the instrument does not expressly authorise.
There are other important Bills, to which we shall hereafter advert; but the preceding claim the earliest attention, as they affect in a higher degree the Practitioners of the Law, for whom it is our vocation to col- An Act of this important nature requires lect all the information in our power. great care in the preparation of the powers I. The practitioners who are engaged in to be conferred and the safeguards to be Conveyancing and Chancery Practice, or provided. We understand that several
in soliciting Private Estate Bills in Parlia- suggestions have been made for amending ment, are particularly interested in the the Bill, and we observe the meeting of the progress of the Settled Estates Bill. Its Committee has been postponed to Thurspassing will be a great advantage to a large day the 21st instant. These amendments part of the landed gentry, whose marriage will no doubt be carefully considered by the settlements, or the wills under which they Lord Chancellor, assisted by the Counsel derive their property, are in any respect defective.
who prepared the Bill. We suppose no Act of Parliament was ever so entirely perNotwithstanding every care and caution, fect as to preclude doubt or difficulty in its it is scarcely practicable to provide for all construction or practical application. In possible events that may happen in families, all probability something will be overlooked or in the changing nature and value of their and left for future amendment. But the property, and the attempt to do so brings principle of the Bill is so good, that we with it great expense, and sometimes the trust it will speedily pass, although it may imputation of unwarrantable legal charges. not satisfy everybody to whom perhaps the Where all parties interested in the pro- result is not sufficiently known. perty concur in effecting a beneficial change, Consider, for a moment, the consequences why should it not take place? The Legis- of passing such a measure. Many estates lature that can loosen the bands of matri- of moderate value, the proprietors of which mony, take away patrimonial parks, and cannot afford to apply to Parliament for destroy ancient castles and abbeys for the the relaxation of the powers under which sake of a railway, will also allow the tenant they are restrained, would be released from for life and those in reversion to alter a their difficulties and the property brought VOL. LI. No. 1,458.
Progress of Law Bills in Parliament.
into the market for most advantageous sale, "The advance of any capital or money, or or leased on most advantageous terms, and the agreement to advance any capital or money, not only the parties beneficially interested to be used in any trade or undertaking (not but the public will be highly benefited. In- being the trade of a banker) upon a contract deed we conceive that the interests as well dertaking, that the person making such adwith the person carrying on such trade or unof the tenant for life, as of all subordinate vance, or agreeing to make such advance, shall interests, annuitants, mortgagees, and per- receive a share of the profits of the trade or sons in remainder and reversion, will in undertaking, shall not of itself render the permany instances be more safely provided for son making such advance liable to third parties by the Court of Chancery than in the as a partner in such trade or undertaking beHouses of Parliament. yond the amount of the capital or money actually advanced, or agreed to be advanced : Provided always, that to the extent of the caII. With regard to the Law of Partner-pital or money actually advanced, if the amount ship and the Joint-Stock Companies' Bills, agreed to be advanced, or to the extent of the so advanced equals or exceeds the amount which have passed the Second Readings amount agreed to be advanced, if the whole and been appointed for consideration in a amount agreed to be advanced shall not have Committee of the whole House on the 25th been advanced, such person shall be liable to instant, we may claim some credit for stea- third parties as a partner in such trade or undily advocating these measures. One of dertaking: And provided also, That the conour able contributors, in an article on the tract between such person and the person 14th July last, and on other occasions, carrying on such trade or business shall be in pointed out the true mode of carrying the writing signed by the parties, or by some one duly authorised in that behalf." principle into effect.
In another part of this number we have We are aware that some eminent Solicitors set forth the principal clauses of the Bill as doubt the expediency of these alterations of applicable both to limited and unlimited the Law, and think that they will let in nupartnerships. In fact, the Joint-Stock merous frauds; but we trust the lawyers will principle in the Railway and other large find a remedy for the evil, and that in the Companies, is now to be extended to the result bona fide creditors will be duly prosmaller associations of seven or more share-tected, trade and commerce extended, and holders. Why should it not? Where is the Profession materially benefitted. the justice of allowing one man to embark a limited capital in a railway, and preventIII. The Ecclesiastical Courts Bill of ing him from subscribing 1007. or 500l. in Mr. Collier, was allowed by the Governa brewery, a coal company, or any other ment to be introduced, and stands for Seassociation for the advantage of the share-cond Reading on the 20th instant. But holders or the public good. As the Go- the Solicitor-General expressed his opinion vernment are not disposed to print and that Mr. Collier's scheme would not do; publish the Reports of the Decisions of the Superior Courts, the "Judge-made Law”. as they do the Acts of Parliament,-why should not the lawyers form an association for the purpose?-Or why should not any class of society unite their respective portions of capital and establish periodical and other works to diffuse information and promote their interests? We think the time has arrived, or will soon arrive, for great and important improvements in our own as well as other professions.
The votes and proceedings in Parliament show that Mr. Follett has given notice of an amendment to be moved by him in the Committee on the Partnership Bill, substituting the following for the first clause as it now stands.1
See page 283, ante.
and intimated that the Government would introduce their own measure. It does not appear that there is the slightest prospect of the adoption of a plan by which the testamentary jurisdiction would be transferred to the Common Law and County Courts. If the Court of Chancery, or a new branch of it be objectionable, it would be better to institute a Court of Probate, with jurisdiction over the whole kingdom.
The Proctors, both in town and country, must either be duly compensated for their losses, if their practice be abolished, or allowed exclusively the right of practising in the new Court, for such period as may be deemed just; but an arrangement should be made by which, in contested cases, the Solicitors may be entitled to act without the suitors being put to the expense of paying two agents for performing the same duty.