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Notes of the Week.-Superior Courts: Court of Chancery.
George Hayes, Esq., of the Midland Circuit, who was called to the Bar, January 29, 1830. Gillery Pigott, Esq., of the Oxford Circuit. Called to the Bar, May 3, 1839.
M. L. Wells, Esq., of the Norfolk Circuit. Called to the Bar, Jan. 29, 1841; were sworn in on Tuesday the 12th instant, as members of the degree of the Coif, before the Lord Chancellor, in his private room at the House of Lords.
The Queen has been pleased to confer the honour of knighthood upon Richard Graves Mac Donnell, Esq., Barrister-at-Law, Companion of the most Honourable Order of the Bath, Captain- General and Governor-in-Chief of South Australia. Sir R. G. Mac Donnell was called to the Bar by the Hon. Society of Lincoln's Inn, on the 25th January, 1841.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Court of Chancery.
(Coram Lord Chancellor and Lords Justices.)
AS AGAINST JUDGMENT CREDITORS SUB-
By a voluntary settlement in July, 1838, the
might eventually become a purchaser, as he might under the Statute of Westminster get hold of the land, but he could not for that of Elizabeth, as if he had paid money or other reason be called a purchaser within the Statute good consideration: Brace v. Duchess of Marlborough, 2 P. Wms. 491; Exparte Knott, 11 Ves. 609. The next question was, whether their rights had been altered by the 1 & 2 Vict. c. 110, s. 13.2 Now the Legislature hereafter to be had or made, for the intent and of purpose to defraud and deceive such person or persons, bodies politick or corporate, as have purchased, or shall afterwards purchase, in fee simple, &c., the same lands, &c., or any part or parcel thereof, so formerly conveyed, granted, leased, charged, incumbered, or liinited in use, or to defraud and deceive such as have or shall purchase any rent, profit, or commodity in or out of the same, or any part THIS was a petition on behalf of the trustees thereof, shall be deemed and taken only as of a voluntary settlement executed by the Earl against that person and persons, bodies politick of Oxford in July, 1838, in favour of his wife, and corporate, his and their heirs, successors, for a division of the fund in Court in this suit, executors, administrators, and assigns, and which was instituted by mortgagees to set aside against all and every person and persons lawthe settlement, and to which certain judgment fully having or claiming by, from, or under creditors were made defendants. The matter them, and against them which have purchased was now re-argued by order of the Lords or shall hereafter so purchase for money or Justices, who had heard the petition by desire of Vice-Chancellor Stuart. The question was, whether certain judgment creditors, whose judgments were subsequent in date to the voluntary settlement, had priority over the interest of Lady Oxford thereunder.
Bacon and Speed in support of the petition; Walker, Cory, Wickens, and Surrage for two subsequent judgment creditors, contrà; Lee and Chichester for other parties.
other good consideration, the same lands, &c., to be utterly void, frustrate, and of none effect, any pretence, colour, fained consideration, or expressing of any use or uses to the contrary notwithstanding."
By which it is enacted, that "a judgment already entered up or to be hereafter entered up against any person in any of her Majesty's Superior Courts at Westminster shall operate as a charge upon all lands, &c., of or to which The Court (without hearing Craig and Eddis such person shall at the time of entering up for a judgment creditor, whose judgment was such judgment, or at any time afterwards, be prior in date to the settlement, and whose pri- seised, possessed, or entitled for any estate or ority was allowed under the 1 & 2 Vict. c. 110, interest whatever, at law or in equity, whether s. 6) said, that the only way in which the judg-in possession, reversion, remainder, or expecment creditors could establish any prior claim within the 27 Eliz. c. 4, was as purchasers for money or other good consideration under s. 2. A person who recovered a judgment
'Which enacts, that "all and every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use or uses, of, in, or out of any lands, &c., whatsoever had or made heretofore sithence the beginning of the Queen's Majesty's reign, that now is, or at any time
tancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, &c., and that every judgment creditor shall have such and the same remedies in a Court of Equity against the hereditaments so charged by virtue of this Act, or any part thereof, as he would be entitled
Superior Courts: Court of Chan.-Lords Justices.-V. C. Kindersley.-Queen's Bench. 311
ther he would affirm it or not, but it was another question whether he could recover back money paid by him. If the bankrupts had continued solvent, and an action had been brought by the petitioner either before or after he attained his majority, to recover the money in question or a part of it, the action would have ended in a nonsuit or verdict against him. The cases referred to of Wilson v. Kearse, 2 Peake, 196; and Holmes v. Blogg, 1 J. B. Moore, 552, were decisive against the claim, and the appeal would be dismissed-the respondents' costs to come out of the estate.
meant by that enactment to make a judgment contract, and could elect, when of age, wheoperate as a charge against the debtor's property, but it gave no right as against persons claiming under a voluntary settlement. Its effect was to place the creditor in the same position as if the debtor had given him a charge on his property, but only over such as had an absolute power of disposition for his own benefit. Nor did the 2 & 3 Vict. c. 11, affect the rights now in question, as that Statute only required judgment creditors to register and re-register their judgments from time to time. The judgment creditors in question had, therefore, no right in opposition to the claimants under the voluntary settlement. With respect to the case of Watts v. Porter, 3 Ellis & B. 743, which had been cited on behalf of the judgment creditors, the present judgment did not clash with it, but if it did, the Lord Chancellor agreed with Erle, J., who dissented from the other Judges.
Jan. 22, 1856.
FORECLOSURE ON DEFAULT IN PAYMENT OF INTEREST.
Held, that a mortgagee is entitled to foreclose a mortgage upon default in payment of the interest, although the principal is not due. THIS bill was filed by a mortgagee in pos
In re Burrows and another, exparte Taylor. session, to foreclose a mortgage upon default
Feb. 8, 9, 1856.
The bankrupts entered into partnership with a minor, who paid a certain sum of money and received part of the profits before he attained 21. He afterwards repudiated the contract, and the partners became bankrupt. Whereupon his guardian sought to prove against their estate for the money so paid: Held, that the proof was properly rejected by the Registrar of the Leeds Bankruptcy Court.
It appeared that the bankrupts, who were worsted spinners at Wakefield, had taken the petitioner, then an infant, into partnership upon paying about 1,2007., and that a deed of partnership was executed under which he received about 2001. before he attained 21, but that he afterwards repudiated the contract. In October last Messrs. Burrows became bankrupt, and the petitioner's mother, as his guardian, claimed to prove for the amount paid by him in the Leeds Bankruptcy Court, and on the proof being rejected by the registrar, this appeal was presented.
Bacon and Eddis in support; Swanston and De Gex contrà.
The Lords Justices said, there was no evidence offered of fraud, and the case therefore rested on the question how far a contract by an infant could be valid. It was entered into and acted on by him and the other side while he was a minor. There could be no doubt that an infant was not absolutely bound by the
to in case the person against whom such judgment shall have been so entered up had power to charge the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest thereon."
being made in payment of the interest, although the principal was not due.
Baily and R. W. Moore in support, cited Burrowes v. Molloy, 2 Jones & L. 521-6. Fooks for the mortgagor's assignees, contrà. G. Lake Russell, Darling, Waller, and Joyce for subsequent mortgagees.
The Vice-Chancellor said, that in accordance with the decision cited of Lord St. Leonards, the decree would be made for an account of principal and interest, with inquiries as to subsequent mortgagees and the mortgagee in possession.
Court of Queen's Bench.
CERTIORARI.-INQUISITIONS AND INDICT-
A rule was made absolute for a certiorari to
quisitions and indictments being brought up. THIS was a rule nisi for a certiorari to remove into this Court the inquisitions found before one of the coroners for the county of Stafford, and to the justices of assize to return any indictments which might be found by the grand jury against William Palmer, who was accused of wilful murder of certain persons, upon the ground that an impartial trial could not be obtained in the county of Stafford, or any surrounding county.
Edwin James and Hawkins in support; Huddleston and Scotland, contrà, cited Rex v. Holden, 5 B. & Ad. 347; ex v. Thomas, 4 Mau. & S. 442.
The Court said, that the power to remove the
Superior Courts: Queen's Bench.-Common Pleas.-Exchequer.
indictments existed, and the absence of in-dered of the whole matter in dispute in an acstances of such removal did not show that the tion where some of the items of account on power ought not to be exercised in a proper each side were disputed. If it were held in the case. When the indictments were brought up negative, the appointment of a referee, whose the question of venue would be raised. The only duty was the addition of undisputed items, ends of justice required that a certiorari should would be an unproductive expense, and render issue, and this high Court had the power to the Statute almost nugatory. The rule would issue a certiorari to return any indictment from therefore be made absolute. any Court in the kingdom. The only question was, whether the writ ought to go, in order that the trial might not take place at the ensuing assizes. There was no doubt that after the removal, the Court might direct a trial at Bar, though no sufficient reason existed for that. The rule would therefore be made absolute.
Court of Common Pleas.
Browne v. Emerson. Jan. 30, 1856. COMMON LAW PROCEDURE ACT, 1854.-COMPULSORY REFERENCE UNDER SEC. 3, ALSO TO SOME ITEMS OF ACCOUNT DISPUTED.
A rule was made absolute to refer to one of the Masters of the Court, under the 17 & 18 Vict. c. 125, s. 3, an action for goods sold and delivered, money lent, money paid, and on an account stated, to which the pleas were, never indebted, payment, and set-offthe matters in dispute being of mere account, although some of the items of the plaintiff's claim and of the defendant's setoff were disputed.
Court of Exchequer.
Regina v. Munday. Jan. 30, 1856.
LEGACY DUTY.—BEQUEST, DISCLAIMER OF
A testator bequeathed money to his daughter for life, with remainder to her husband absolutely. The husband predeceased her, having by his will bequeathed his interest in the legacy, together with other property, in trust to pay his debts and legacies, and then as his wife should appoint, and in default of such appointment to her executors and administrators. On her death, her executors disclaimed the legacy: Held that, notwithstanding, the Crown was entitled to 10 per cent. legacy duty on the bequest to the husband.
Ir appeared that a testator by his will, bequeathed a sum to his daughter, Mrs. Beilby, for life, with remainder over to her husband absolutely. Mr. Beilby, by his will, bequeathed his interest in this legacy to the defendant, toTHIS was an action for goods sold and de-gether with other property, in trust to pay his livered, money lent, money paid, and on an debts and legacies, and then as his wife should account stated, to which the pleas were, never appoint, and in default of such appointment to indebted, payment, and set-off. It appeared wife's death, the Crown claimed a legacy duty her executors and administrators. Upon the that the matters in dispute were of mere ac- of 10 per cent. on the original bequest to Mr. count, although some of the items of the plain-Beilby, but the executors disclaimed the letiff's claim and the defendant's set-off were disputed. A summons had been taken out before Cresswell, J., at Chambers, for a reference to one of the Masters of the Court, under the 17 & 18 Vict. c. 125, s. 3,1 and on an order being refused, this rule nisi was obtained.
Channell, S. L., showed cause against the rule, which was supported by Byles, S. L. Cur, ad. vult. The Court said, the question raised whether a compulsory reference could be or
1 Which enacts, that "If it be made appear, at any time after the issuing of the writ, to the satisfaction of the Court or a Judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way, it shall be lawful for such Court or Judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the Court, or, in country cases, to the Judge of any County Court, upon such terms as to costs and otherwise as such Court or Judge shall think reasonable; and the decision or order of such Court or Judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred."
gacy in question, and the question arose whether the duty attached notwithstanding.
Sir F. Kelly and Pigott for the Crown; H. Hill and Lloyd for the defendant.
The Court held that the Crown was entitled
to the duty claimed.
In re Holmes. Feb. 5, 1856.
A rule for an attachment will not be made absolute on an executrix for not rendering an account of her testator's estate, where it appeared she was ili in bed, and the copy rule had been given to a servant, who took it into the executrix's bedroom. The service of a rule for an attachment must always be personal.
THIS was a rule nisi for an attachment against an executrix, who had neglected to render an account of the estate of her testator. It appeared that she was ill in bed, 'and the copy rule was delivered to a servant, who had taken it into her bedroom.
Pigott in support of a motion to make the rule absolute.
The Court said, that the service of an attachment must be personal, and that the service was insufficient, and refused the application accordingly.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare.
SATURDAY, FEBRUARY 23, 1856.
LAW BILLS IN PROGRESS.
LAST week we called attention to the Bills for the amendment of the Law which appeared to be of prominent importance to the Profession,-namely, the Settled Estates Bill, the Partnership and Joint-Stock Companies Bills, and the Ecclesiastical Courts. The latter Bill, however, has only just been printed.
We now proceed to notice several other measures, which will be found in our weekly list, and where the several stages at which all the Bills in any way affecting the Profession have arrived are from time to time recorded. Arranging these measures under a few general heads, they are as follow:
Copyhold Land for Charitable Uses, and to shorten the time as to the enrolment of Deeds for Charitable Uses from twelve to six months. There is also a Bill relating to the arrangement of Turnpike Trusts, and another for the Inclosure of Commons, pursuant to the Report of the Commissioners.
II. In the department of the Common Law may be classed the two Bills for the amendment of the Law of Partnership and Joint-Stock Companies, which have been previously noticed; and to these may be added Mr. Craufurd's Bill to authorise the enforcement of English Judgments by Execution in Scotland and Ireland, and of the latter in England.
It is said that a Bill will be brought in I. Let us in the first place take the Bills to carry the recommendations of the County which relate more or less to the Law of Court Commissioners into effect for the imProperty. Besides the Settled Estates Bill, provement of the practice in those Courts; already adverted to, Mr. Malins has given but at present we have notice only that notice of a Bill to enable married women to Mr. Roebuck intends to introduce a Bill to dispose of their Reversionary interests, and regulate the salaries of the County Court of another to abolish the distinction be- Judges. tween Specialty and Simple Contract Debts. III. There are two Bills relating to These Bills have not yet been printed. Church Rates. That of Sir William Clay Next there is a Bill brought in by Mr. recites that in many parishes rates have Wilson on the part of the Government, to ceased to be collected, and in others have amend the Acts relating to the advance of given rise to litigation, and he proposes to Public Money to promote the Improvement abolish them and substitute voluntary conof Land by Drainage,-such advances, with tributions. By the Marquis of Blandford's the expense of surveys and investigation, to be secured by a rent-charge on the land, whereupon the Treasury may direct the advances to be made, with powers regarding the apportionment of the land.
Bill it is proposed to confine the Church Rates to the maintenance of the fabric and the necessary fittings of Parish Churches.
Further, a Bill has been brought in by the Marquis of Blandford to facilitate the In the Bill to amend the Law relating to formation and endowment of separate and the Conveyance of Lands for Charitable distinct parishes. The objects appear to Uses, introduced by Mr. Atherton, it is be to form new parishes where the extent proposed to remove the doubts which have of population may require them ;-to conarisen as to the validity of an Assurance of vert districts having churches into separate VOL. LI. No. 1,459.
Law Bills in Progress.-Proposed Executor and Trustee Company.
parishes; to provide for the patronage bringing forward an amendment in behalf and due endowment of the new parishes ;and regulate pew rents, burials, &c.
of the Attorneys. The principle of the prohibition evidently applies only to those who practise before Justices of the Peace, and if Attorneys, whilst holding the office of Magistrate, were precluded from such practice, the object of the Legislature would be satisfied.
IV. Several Criminal Law and Police measures are now before Parliament. One of them appears to have arisen out of an application in the extraordinary case of a surgeon charged with numerous murders by poison, to remove the trial from the county VI. Two specimens of consolidation of wherein the crimes are alleged to have been the Statutes are proposed by Sir Fitzroy committed, to London. The Bill proposes Kelly:-the one relating to offences against to enable the Court of Queen's Bench to the Person; the other to the Law of Bills direct trials in certain cases, to take place at the Central Criminal Court.
of Exchange and Promissory Notes. Mr. Napier, the late Attorney-General for Ireland, has another plan for amending our Statute Law by appointing a Minister of Justice and a competent staff. And then there
consolidating and amending the Statute Law.
A Select Committee has been appointed, at the instance of Mr. J. G. Phillimore, on the often debated appointment of a Public Prosecutor. We presume the next Bill is still in force the Royal Commission for will be more rational than the last, for certainly no plan could be so objectionable, with its assistant prosecutors, its district agents and assistant agents all over the kingdom, forming, indeed, an army of criminal practitioners, appointed by the Government or the magistrates, to the exclusion, for the most part, of the Attorneys for the injured parties.
In the department of Police there are two Bills;-the one relating to the Metropolis, the chief object of which is to appoint one Chief Commissioner of Police with two assistant Commissioners. The former at a salary of 1500l., the others at 8007. The other Bill, relating to the Police in Counties and Boroughs, is designed for the more effectual prevention and detection of Crime, the suppression of Vagrancy, and the maintenance of good order. By one of the clauses the Treasury is authorised to pay one-fourth of the expense of the Police where the population is under 5,000.
We fear, in this multitude of Counsellors, there is a considerable conflict of wisdom, and great danger of verifying the homely adage of " too many cooks."
There is also a Bill for the Incorporation of the Medical Profession, not as a “University" (such as has been proposed for the Bar), but for establishing a general Council for the regulation and registry of all the members of the several branches of that Profession, and as it appears without any objectionable interference with the existing Colleges of Physicians, Surgeons, &c. We shall advert to this hereafter.
PROPOSED EXECUTOR AND TRUSTEE
THE Profession has been relieved this Session from the renewal of the project which was, during three Sessions before V. Mr. Colvile's Bill to amend the Laws Parliament,-designed not merely for estarelating to the Qualification of Justices of blishing a Joint-Stock Executor and Trustee the Peace extends the Property Qualifica- Company, with authority to sue and be tion to Interest in Land amounting to 1001. sued in its corporate name, or the name of a year; Interest in Land in right of Wife; its officer; but of altering the Law relating Interest in Personal Property to the amount to Trustees and Executors, and enabling of 300l. a year; Income from Office or them (without any permission from the Pension; Qualification by rank or degree, settlor or testator) to make a profit of their and by holding certain offices. trust; and to confer other powers on the particular company, not sanctioned by the general law. The late South Sea Company abandoned their application after the signal defeat they sustained in the Select Committee of the House of Lords, appointed at the instance of the Incorporated Law Society. And although the other respectable promoters of another company introduced their Bill a second time, their measure was
It repeals the 33rd section of the 6 & 7 Vict. c. 73, and enacts, that no Attorney, Solicitor, or Proctor shall be a Justice of the Peace for any county during such time as he shall continue in practice. But the Act is not to extend to any City, Town, &c., having Justices of the Peace by Charter, Commission or otherwise.
These clauses afford an opportunity of