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Notes of the Week.-Superior Courts : Court of Chancery.
The Queen has been pleased to confer the George Hayes, Esq., of the Midland Circuit, honour of knighthood upon Richard Graza who was called to the Bar, January 29, 1830. Gillery Pigott, Esq., of the Oxford Circuit.
Mac Donnell, Esq., Barrister-at-Law, ComCalled to the Bar, May 3, 1839.
panion of the most Honourable Order of the M. L. Wells, Esq., of the Norfolk Circuit. Bath, Captain-General and Governor-in-Chief Called to the Bar, Jan. 29, 1841; were sworn of South Australia. Sir R. G. Mac Donnell in on Tuesday the 12th instant, as members of the degree of the Coif, before the Lord Chan- was called to the Bar by the Hon. Society of cellor, in his private room at the House of Lords. Lincoln's Inn, on the 25th January, 1841.
AS AGAINST JUDGMENT CREDITORS SUB
RECENT DECISIONS IN THE SUPERIOR COURTS.
might eventually become a purchaser, as he (Coram Lord Chancellor and Lords Justices.) might under the Statute of Westminster get Beavan v. Earl of Oxford. Jan. 29, 1856.
hold of the land, but he could not for that VOLUNTARY SETTLEMENT. — VALIDITY OF, of Elizabeth, as if he had paid money or other
reason be called a purchaser within the Statute
good consideration : Brace v. Duchess of Marl SEQUENT IN DATE.
borough, 2 P. Wms. 491; Exparte Kaott, II By a voluntary settlement in July, 1838, the Ves. 609. The next question was, whether
settlor made certain provision in furour of their rights had been altered by the 1 & 2 his wife, and it appeared that subsequently Vict. c. 110, s. 13. Now the Legislature certain creditors had obtained judgments against the settlor : Held, that they were hereafter to be had or made, for the intent and not entitled in priority to the volunteers of purpose to defraud and deceive such person under the settlement, as purchasers for or persons, bodies politick or corporate, as money or good consideration, under the 27 have purchased, or shall afterwards purchase, Eliz. c. 4, s. 2, and that the 18: 2 Vict. c. in fee simple, &c., the same lands, &c., or any 110, s. 13, only placed them in the same part or parcel thereof, so formerly conveyed, position as if the settlor had given them a granted, leased, charged, incumbered, or licharge on such of his property as he had mited in use, or to defraud and deceive soch an absolute power of disposition over for as have or shall purchase any rent, profit
, or his own benefit.
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 polítick 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 other good consideration, the same lands, &c., of Vice-Chancellor Stuart. The question was, to be utterly void, frustrate, and of none effect, whether certain judgment creditors, whose any pretence, colour, fained consideration, or judgments were subsequent in date to the expressing of any use or uses to the contrary voluntary settlement, had priority over the notwithstanding. interest of Lady Oxford thereunder.
? By which it is enacted, that “a judgment Bacon and Speed in support of the petition; already entered up or to be hereafter entered Walker, Cory, Wickens, and Surrage for two up against any person in any of her Majesty's subsequent judgment creditors, contrà; Lee Superior Courts at Westminster shall operate and Chichester for other parties.
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 tancy, or over which such person shall at the within the 27 Eliz. c. 4, was as purchasers for time of entering up such judgment, or at any money or other good consideration under time afterwards, have any disposing power s. 2.' A person who recovered a judgment which he might without the assent of any other
person exercise for his own benefit, and shall " Which enacts, that “all and every convey. be binding as against the person against whom ance, grant, charge, lease, estate, incumbrance, judgment shall be so entered up, &c., and that and limitation of use or uses, of, in, or out of every judgment creditor shall have such and any lands, &c., whatsoever had or made here- the same remedies in a Court of Equity against tofore sithence the beginning of the Queen's the hereditaments so charged by virtue of this Majesty's reign, that now is, or at any time Act, or any part thereof, as he would be entitled
Superior Courts: Court of Chan.—Lords Justices.-V.C. Kindersley.- Queen's Bench. 311
meant by that enactment to make a judgment contract, and could elect, when of age, wheoperate as a charge against the debtor's pro-ther he would affirm it or not, but it was anperty, but it gave no right as against persons other question whether he could recover back claiming under a voluntary settlement. Its money paid by him. If the bankrupts had effect was to place the creditor in the same continued solvent, and an action had been position as if the debtor had given him a brought by the petitioner either before or after charge on his property, but only over such as he attained his majority, to recover the money had an absolute power of disposition for his in question or a part of it, the action would own benefit. Nor did the 2 & 3 Vict. c. 11, have ended in a nonsuit or verdict against him. affect the rights now in question, as that. The cases referred to of Wilson v. Kearse, 2 Statute only required judgment creditors to Peake, 196; and Holmes v. Blogg, 1 J. B. register and re-register their judgments from Moore, 552, were decisive against the claim, time to time. The judgment creditors in ques- and the appeal would be dismissed the retion bad, therefore, no right in opposition to spondents' costs to come out of the estate. the claimants under the voluntary settlement. With respect to the case of Watts v. Porter, 3
Vice-Chancellor Kindersley. Ellis & B. 743, which had been cited on behalf of the judgment creditors, the present judg
Edwards v. Martin. Jan. 22, 1856. ment did not clash with it, but if it did, the MORTGAGE. - FORECLOSURE ON DEFAULT Lord Chancellor agreed with Erle, J., who dis
IN PAYMENT OF INTEREST. sented from the other Judges.
Held, that a mortgagee is entitled to foreclose
a mortgage upon default in payment of the Lords Justices.
interest, although the principal is not due. In re Burrows and another, exparte Taylor.
Tais bill was filed by a mortgagee in pos
session, to foreclose a mortgage upon default Feb. 8, 9, 1856.
being made in payment of the interest, al. BANKRUPTS.--INFANT PARTNER REPUDIAT. I though the principal was not due.
ING CONTRACT.-ACTION TO RECOVER Băily and R. W. Moore in support, cited MONEY PAID.
Burrowes v. Molloy, 2 Jones & L. 521-6. The bankrupts entered into partnership with Fooks for the mortgagor's assignces, contrà.
a minor, who paid a certain sum of money G. Lake Russell, Darling, Waller, and Joyce
Leeds Bankruptcy Court.
Court of Queen's Bench. worsted spinners at Wakefield, had taken the
Regina v. Palmer. Jan. 31, 1856. petitioner, then an infant, into partnership upon
CERTIORARI.-- INQUISITIONS AND INDICTpaying about 1,2001., and that a deed of partnership was executed under which he received
MENTS FOR MURDER.--VENUE. about 2001. before he attained 21, but that he
A rule was made absolute for a certiorari to afterwards repudiated the contract. In October
bring up the inquisitions before the coroner last Messrs. Burrows became bankrupt, and
and to the justices of assize to return any the petitioner's mother, as his guardian, claim
inquisitions which might be found by the ed to prove for the amount paid by him in the
grand jury against the prisoner, who was Leeds Bankruptcy Court, and on the proof
accused of certain murders, on the ground being rejected by the registrar, this appeal was
a fair trial could not be had in the county. presented.
The question of venue will be decided on the in. Bacon and Eddis in support; Swanston and
quisitions and indictments being brought up. De Gex contrà.
This was a rule nisi for a certiorari to reThe Lords Justices said, there was no evi- move into this Court'the inquisitions found dence offered of fraud, and the case therefore before one of the coropers for the county of rested on the question how far a contract by Stafford, and to the justices of assize to return an infant could be valid. It was entered into any indictments which might be found by the and acted on by him and the other side while grand jury against William Palmer, who was he was a minor. There could be no doubt accused of wilful murder of certain persons, that an infant was not absolutely bound by the upon the ground that an impartial trial could
- not be obtained in the county of Stafford, or to in case the person against whom such judg- any surrounding county. ment shall have been so entered up had power Edwin James and Hawkins in support; Hudto charge the same hereditaments, and had by dleston and Scotland, contrà, cited Rex v. Holwriting under his hand agreed to charge the den, 5 B. & Ad. 347; hex v. Thomas, 4 Mau. same with the amount of such judgment debt & S. 442. and interest thereon."
I 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
Court of @rchequer. the trial migbt not take place at the ensuing as Regina v. Munday. Jan. 30, 1856. sizes. There was no doubt that after the re
LEGACY DUTY.-BEQUEST, DISCLAIMER OF moval, the Court might direct a trial at Bar,
BY EXECUTORS. though no sufficient reason existed for that.
A testator bequeathed money to his daughter The rule would therefore be made absolute.
for life, with remainder to her husband ab
solutely. The husband predeceased her, Court of Common Pleas.
having by his will bequeathed his interest Browne v. Emerson. Jan. 30, 1856.
in the legacy, together with other property, COMMON LAW PROCEDURE ACT, 1854.--COM in trust to pay his deõts and legacies, and
PULSORY REFERENCE UNDER SEC. 3, ALSO then as his wife should appoint, and in deTO SOME ITEMS OF ACCOUNT DISPUTED. fault of such appointment to her executors A rule was made absolute to refer to one of
and administrators. On her death, her exethe Masters of the Court, under the 17 8.
cutors disclaimed the legacy: Held that, 18 Vict. c. 125, s. 3, an action for goods
notwithstanding, the Crown was entitled to sold and delivered, money lent, money paid,
10 per cent. legacy duty on the bequest to and on an account stated, to which the pleas
the husband. were, never indebted, payment, and set-off-I It appeared that a testator by his will, bethe matters in dispute being of mere ac- queathed a sum to his daughter, Mrs. Beilby, count, although some of the items of the for life, with remainder over to her husband plaintiff's claim and of the defendant's set- absolutely. Mr. Beilby, by his will, bequeathed off were disputed.
his interest in this legacy to the defendant, toTuis was an action for goods sold and de. I 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
her executors and administrators. Upon the that the matters in dispute were of mere ac
wife's death, the Crown claimed a legacy duty count, although some of the items of the plain
of 10 per cent. on the original bequest to Mr. tiff's claim and the defendant's set-off were
| Beilby,—but the executors disclaimed the ledisputed. A summons had been taken out
gacy in question, and the question arose whebefore Cresswell, J., at Chambers, for a refer
ther the duty attached notwithstanding, ence to one of the Masters of the Court, under
Sir F. Kelly and Pigott for the Crown; H. the 17 & 18 Vict. c. 125, s. 3,' and on an order
Hill and Lloyd for the defendant. being refused, this rule nisi was obtained.
The Court held that the Crown was entitled .., showed cause against the to the duty claimed. rule, which was supported by Byles, S. L.
In re Holmes. Feb. 5, 1856.
Cur, ad. vult. Tne Court said, the question raised was, ATTACHMENT. — PERSONAL SERVICE OF whether a compulsory reference could be or
A rule for an attachment will not be made 1 Which enacts, that “If it be made appear, absolute on an executrix for not rendering at any time after the issuing of the writ, to the an account of her testator's estate, where satisfaction of the Court or a Judge, upon the it appeared she was ilt in bed, and the copy application of either party, that the matter in dis rule had been given to @ servant, who took pute consists wholly or in part of matters of mere it into the executrix's bedroom. The ser. account, which cannot conveniently be tried in
vice of a rule for an attachment must the ordinary way, itshall be lawful for such Court always be personal. or Judge, upon such application, if they or he This was a rule nisi for an attachment think fit, to decide such matter in a summary against an executrix, who had neglected to renmanner, or to order that such matter, either der an account of the estate of her testator. wbolly or in part, be referred to an arbitrator It appeared that she was ill in bed, and the appointed by the parties, or to an officer of the copy rule was delivered to a servant, who had Court, or, in country cases, to the Judge of any taken it into her bedroom. County Court, upon such terms as to costs and Pigott in support of a motion to make the utherwise as such Court or Judgeshall think rea- rule absolute. sonable; and the decision or order of such Court The Court said, that the service of an attachor Judge, or the award or certificate of such re- ment must be personal, and that the service feree, shall be enforceable by the same process as was insufficient, and refused the application the finding of a jury upon the matter referred.”Iaccordingly.
The Legal Obserber,
"Still attorneyed at your service."-Shakespeare,
SATURDAY, FEBRUARY 23, 1856.
LAW BILLS IN PROGRESS. Copyhold Land for Charitable Uses, and to
shorten the time as to the enrolment of LAST week we called attention to the Deeds for Charitable Uses from twelve to Bills for the amendment of the Law which six months. There is also a Bill relating appeared to be of prominent importance to to the arrangement of Turnpike Trusts, and the Profession--namely, the Settled Es- another for the Inclosure of Commons, purtates Bill, the Partnership and Joint-Stock suant to the Report of the Commissioners. Companies Bills, and the Ecclesiastical II. In the department of the Common Courts. The latter Bill, however, has only Law may be classed the two Bills for the just been printed.
amendment of the Law of Partnership and We now proceed to notice several other Joint-Stock Companies, which have been measures, which will be found in our weekly previously noticed ; and to these may be list, and where the several stages at which added Mr. Craufurd's Bill to authorise the all the Bills in any way affecting the Pro- enforcement of English Judgments by Exefession have arrived are from time to time cution in Scotland and Ireland, and of the recorded. Arranging these measures under latter in England. a few general heads, they are as follow : 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 Bill it is proposed to confine the Church be secured by a rent-charge on the land, Rates to the maintenance of the fabric and whereupon the Treasury may direct the ad- the necessary fittings of Parish Churches. vances to be made, with powers regarding Further, à Bill has been brought in by the apportionment of the land.
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 ;— of the Attorneys. The principle of the and regulate pew rents, burials, &c. prohibition evidently applies only to those
IV. Several Criminal Law and Police who practise before Justices of the Peace, measures are now before Parliament. One and if Attorneys, whilst holding the office of them appears to have arisen out of an of Magistrate, were precluded from such application in the extraordinary case of a practice, the object of the Legislature would surgeon charged with numerous murders by be satisfied. 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 of Exchange and Promissory Notes. M. at the Central Criminal Court.
Napier, the late Attorney-General for IreA Select Committee has been appointed, land, has another plan for amending our at the instance of Mr. J. G. Phillimore, on Statute Law by appointing a Minister of Justhe often debated appointment of a Public tice and a competent staff. And then there Prosecutor. We presume the next Bill is still in force the Royal Commission for will be more rational than the last, for cer- consolidating and amending the Statute Law. tainly no plan could be so objectionable, We fear, in this multitude of Counsellors, with its assistant prosecutors, its district there is a considerable conflict of wisdom, agents and assistant agents all over the and great danger of verifying the homely kingdom, forming, indeed, an army of cri- adage of “ too many cooks." minal practitioners, appointed by the Government or the magistrates, to the exclu
There is also a Bill for the Incorporation sion, for the most part, of the Attorneys of the Medical Profession, not as a “Unifor the injured parties.
versity” (such as has been proposed for In the department of Police there are the Bar), but for establishing a general two Bills ;-the one relating to the Metro- Council for the regulation and registry of polis,—the chief object of which is to ap- all the members of the several branches of point one Chief Commissioner of Police that Profession, and as it appears without with two assistant Commissioners. The any objectionable interference with the exformer at a salary of 15001., the others at isting Colleges of Physicians, Surgeons, &c. 8001.
The other Bill, relating to the We shall advert to this hereafter. Police in Counties and Boroughs, is designed for the more effectual prevention PROPOSED EXECUTOR AND TRUSTEE and detection of Crime, the suppression of
JOINT-STOCK COMPANY. Vagrancy, and the maintenance of good order. By one of the clauses the Treasury is authorised to pay one-fourth of the es- The Profession has been relieved this pense of the Police where the population is Session from the renewal of the project under 5,000.
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 Esecutor 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 3001. 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 It repeals the 33rd section of the 6 & 7 particular company, not sanctioned by the Vict. c. 73, and enacts, that no Attorney, general law. The late South Sea Company Solicitor, or Proctor shall be a Justice of abandoned their application after the signal the Peace for any county during such time defeat they sustained in the Select Comas he shall continue in practice. But the mittee of the House of Lords, appointed at Act is not to extend to any City, Town, &c., the instance of the Incorporated Law Sohaving Justices of the Peace by Charter, ciety. And although the other respectable Commission or otherwise.
pri moters of another company introduced These clauses afford an opportunity of their Bill a second time, their measure was