« EelmineJätka »
Superior Courts : V. C. Kindersley.--V. C. Stuart.–V. C. Wood. taining the proper orders and of other pro- the Court, or by or before an examiner to be ceedings for the purpose of the payment of specially appointed by the Court, the examiner the dividends and interest on investments in being furnished by the plaintiff with a copy of Government securities, and of the payment the bill, and of the answer, if any, in the cause; of the principal or compensation money : and such examination shall take place in the Held, that the company were liable for the presence of the parties, their counsel, solicitors, costs of a petition for payment out of Court or agents, and the witnesses so examined orally on the death of the tenant for life and shall be subject to cross-examination and me attaining 21 of the party entitled in re-examination; and such examination, crossmainder.
examination, and re-examination shall be cosThis was a petition for the payment out of ducted as nearly as may be in the mode Dow Court of a sum of 691. odd, together with a in use in Courts of Common Law with respect small sum of cash, which stood to her separate to a witness about to go abroad, and not eraccount. It appeared that the dividends had pected to be present at the trial of a cause." been directed to be paid to her mother for life,
Bacon and Baggallay, contrà. who was now dead,—and the petitioner had
The Vice-Chancellor said, the objection that also attained her majority:
the affidavit was matter of reply and not part of C. Hall, in support, asked for costs against the plaintiff's case, was insufficient. There the railway company.
was a discretionary power vested in the Court, J. T. Wood, contrà, referred to the special and the fact of the evidence being closed did Act, 6 & 7 Wm. 4, c. ciii., s. 72, which enacts, not imply that all additional evidence was to that “all the reasonable costs charges and ex- be shut out. The motion would be granted to penses attending such purchase, &c., or which read the affidavit and to enlarge the time to may be incurred in consequence thereof, and cross-examine as asked—the cause to be set also the investment of the purchase or compen- down immediately for hearing. sation money, &c., together with the costs, charges, and expenses of obtaining the proper
Vice-Chancellor wood. orders and of the other proceedings for such purposes, and of the payment of the dividends In re Bissell's Trust. Feb. 16, 1856. and interest of the said Government or real se- LEGATEE. RIGHT OF BANKRUPT ASSIGcurities, and of the payment of the principal of NEES AS AGAINST SUBSEQUENT INSOLthe said purchase or compensation money, and VENCY ASSIGNEES TO LEGACY. of the Government or real securities purchased therewith out of Court, to be paid by the said
legatee under a will was twice bankrupt
before the death of the testatriz, and obcompany," and
citing Exparte Cooke, 3 Rail. Ca. 135; In re Strachan's Estate, 9 Hare, 185;
tained her certificates. Under the second Exparte Molyneux (V.C. B.), 2 Coll. 273.
bankruptcy a dividend under 158. was paid, T'he Vice-Chancellor said, that the costs of
and the assignees, immediately on the death obtaining the orders for payment of the divi
of the testatrix, claimed the legacy from dends and principal wliich formed part of the
the executors. She subsequently became in
solvent : Held, that the assignees in bankmachinery of the payment, were included in the act, and must be paid by the company.
ruptcy were entitled to the legacy, and that they had not waived their right by allowing
the bankrupt to continue to trade. Vice-Chancellor Stuart.
It appeared that a legatee under the will of Phillips v. Ward. Feb. 11, 1856.
a testatrix had been twice bankrupt before her EQUITY JURISDICTION IMPROVEMENT ACT. but under the second bankruptcy the dividend
death, and had duly obtained her certificates,
was under 15$. Upon her decease, the assigDENCE CLOSED.
nees thereunder claimed the legacy from the Leave, under the 15 & 16 Vict. c. 86, s. 31, executors. The legatee afterwards became in
to the plaintiff to use at the hearing an af, solvent, and the assignees presented this pe-
De Gex, in support, urged that the 6 Geo. 4, Malins and Jessel appeared in support of c. 16, s. 127,' did not apply, as the testatrix this motion on behalf of the plaintiff, for leave died after the 12 & 13 Vict. c. 106, came into to use at the hearing an affidavit filed three operation, and which did not re-enact that days after the enlarged time for closing the section, and also that the assignees under the evidence had expired, and to enlarge the time second bankruptcy, by allowing the legatee to for cross examination until March 10, or fur- continue to trade, had waived any prior title: ther to enlarge the time for closing the evi. Tucker v. Hernaman, 1 Şmale & G. 394 ; 4 De dence.
G., M‘N. & G. 395; Troughton v. Gitley, Ambl. By the 15 & 16 Vict. c. 86, s. 31, it is en- 630. acted, that “all witnesses to be examineil orally under the provisions of this Act shall be so 1 Which enacts, that "if any person who examined by or before one of the examiners of shall have been so discharged by such certifi
-USING AFFIDAVIT FILED AFTER EVI
TAXATION OF COSTS. - WHERE JURY DIS
Superior Courts : V. C. Wood.- Queen's Bench.--Exchequer.
331 Cracknell for the assignees, contrà, referred porate, of their attorney or agent, stating that o the 12 & 13 Vict. c. 106, s. 4, which enacts, the deponents or deponent believe or believes hat “this Act, unless where otherwise specially that the party proposing to interrogate, whether srorided, shall commence and take effect from plaintiff or defendant, will derive material beneand after Octoher 11, next, &c.: Provided, fit in the cause from the discovery which he &c, that nothing in this Act contained shall ”seeks, that there is a good cause of action or « lessen or affect any right, title, claim, de- defence upon the merits, and, if the application mand, or remedy which any person now has be made on the part of the defendant, that the or hereafter may have under or by virtue there- discovery is not sought for the purpose of of, or lessen or affect any right, title, claim, de- delay; provided that where it shall happen, mand, or remedy which any person now has from unavoidable circumstances, that the or hereafter may have upon or against any plaintiff or defendant cannot join in such affibankrupt against whom any fiat has or shall davit, the Court or Judge may, if they or he have been issued.”
think fit, upon affidavit of such circunstances The Vice-Chancellor said, that the claim of by which the party is prevented from so jointhe legacy by the assignees in bankruptcy ing therein, allow and order that the interrogaamounted to taking possession before the in- tories may be delivered without such affidavit.” solvency, and their right to recover could not Phipson in support; Lush showed cause in be defeated on the ground of acquiescence. the first instance. The most reasonable construction of the Statute The Court said, that the affidavit was insuffiwas, that it did not disturb the rights under cient to enable the Judge to exercise a discrethe former law, and the assignees in bank- tion, and the rule would therefore be refused. ruptey were therefore entitled to the legacy.
Court of Orchequer.
Wall v. London and South Western Railway
Company. Jan. 22, 1856. COMMON LAW PROCEDURE ACT, 1854.- IN
CHAKGED WITHOUT GIVING VERDICT. TERROGĂTORIES BEFORE DECLARATION.
A rule was refused to review the Master's -AFFIDAVIT.
taxation, disallowing on a rule to disconA motion will not be granted for leave to the tinue the defendant's costs of a trial, where plaintiff to deliver interrogatories under
the jury disagreed and were discharged the 17 8 18 Vict. c. 125, s. 51, before de
without returning a verdict. claration upon an affidavit, stating that he believes he would derive material advantage the taxation of the Master, disallowing the
This was a motion for a rule nisi to review from the answers of the defendants to such interrogatories, and also that he has a good defendants their costs of a trial in which the cause of action.
jury being unable to agree as to a verdict, had This was a motion for leave to the plaintiff wards obtained a rule to discontinue.
been discharged, where the plaintiff had afterto deliver interrogatories to the defendant un
Bovill in support. der the 17 & 18 Vict. c. 125, s. 51, before de
The Court said, that in accordance with Seely claration, on the ground alleged in the affida- v. Powers, 3 Dowl. P. C. 372, and Wood v. vits in support, that he believed he would de- Duncan, 5 M. & W. 87, the costs of a trial rive material advantage from the thereto, and also that he had a good cause of charged without returning a verdict, and the
were not allowed where the jury had been disaction.
rule would therefore be refused. By s. 52 it is enacted, that "the application for such order shall be made upon an affidavit
Cook v. Hopewell. Jan. 22, 1856.
PLEADING RULES, TRINITY TERN, 1853.-
AFTER ACTION-COSTS. cate as aforesaid, or who shall have compounded with his creditors, or who shall have been
To an action for goods sold and delivered, the discharged by any Insolvent Act, shall be or defendant pleaded, except as to 221. odd, become bankrupt, and have obtained or shall
never indebted, and as to that sum payment hereafter obtain such certificate as aforesaid,
thereof after action to the plaintiff, who unless his estate shall produce (after all charges)
accepted it in satisfaction of the debt and sufficient to pay every creditor under the Com- of all damages accrued in respect thereof. mission 158. in the pound, such certificate shall
The plaintiff replied, taking issue on the only protect his person from arrest and impri
plea: Held, that in order to prove the plea sonment, but his future estate and effects (ex
the defendant should show that the plaintiff cept his tools of trade, &c.) shall vest in the accepted the sum in satisfaction of debt and assignees under the said 'Commission, who
of the costs, or that the costs were paid, or shall be entitled to seize the same in like man
tendered, and that the plaintiff was not ner as they might have seized property of
bound under the 22nd pleading rule of which such bankrupt was possessed at the
Trinity Term, 1853, to confess the plea in issuing the commission."
Superior Courts : Exchequer. A rule was therefore made absolute to set document to the production of which he is en
aside the verdict for the defendant, and to titled for the purpose of discovery or other. enter it for the plaintiff, with nominal da- wise, is in the possession or power of the opmages.
posite party, it shall be lawful for the Court or This was a rule nisi to set aside the verdict Judge to order that the party against whom for the defendant and enter it for the plaintiff such application is made, or if such party is a with nominal damages in this action, which was body corporate that some officer to be named brought for goods sold and delivered, and to of such body corporate, shall answer on affiwhich the defendant pleaded, except as to 221. davit, stating what documents he or they has odd, never indebted, and as to that sum pay- or have in his or their possession or power rement thereof after action to the plaintiff, who lating to the matters in dispute, or what he accepted it in satisfaction of the debt and of all knows as to the custody they or any of them damages accrued in respect thereof. The are in, and whether he or they objects or object plaintiff replied, taking issue on the plea. It (and if so, on what grounds), to the production appeared that the debt was paid to and taken of such as are in his or their possession or by the plaintiff without any mention of costs. power ; and upon such affidavit being made On the trial before Wightman, J., the defendant the Court or Judge may make such further obtained a verdict.
order thereon as shall be just.” Finlason showed cause against the rule, cit
Blackburn in support on an affidavit of the ing the 22nd pleading rule of Trinity Term, plaintiff's attorney ; C. E. Pollock showed 1853.'
cause in the first instance. The Court (without calling on J. Brown in The Court said, that the motion for a dissupport) said, the defendant, in order to prove covery could not be granted except on the his plea, must show that the plaintiff agreed to affidavit of the party himself, and as to the rest accept the amount in question in satisfaction of referred the application to Chambers. the debt and costs, or that the costs were paid. In Henry v. Earl, 8 M. & W.228, Lord Abinger Hutchinson v. Gillespie. Feb. 7, 1856. (p. 233) said, “No doubt costs form part of ACTION ON ORDER OF JUDICIAL COMMITTEE the damages resulting from the detention of the
OF PRIVY COUNCIL FOR COSTS. debt, and if there is no answer to those costs, the plaintiff may sign judgment for so much.”
Held, overruling a demurrer, that an action The 22nd rule, cited at bar, was for the purpose
will lie on an order of the Judicial Com
mittee of the Privy Council for the costs of of enabling a defendant to plead maiters of defence arising after action brought, and to en
the plaintiff on an appeal being decided in able the plaintiff to end the action by confessing
his favour against a judgment of the Quebec
Provisional Court, and where such judgment the plea, and to obtain the costs up to the time of plea pleaded, but he was not bound to con
was final so far as he was concerned. fess a plea like the present, which was not true. 1,0901. odd on an order of the Judicial Com
This was an action to recover a sum of The rule would therefore be made absolute.
mittee of the Privy Council in an appeal against Herschfield v. Clark. Jan. 25, 1856.
a judgment of the Quebec Provincial Court,
and which amount was for the costs of the COMMON LAW PROCEDURE ACT, 1854.-DIS- appeal and reference to arbitration under their
order. To this declaration there was a deA rule was refused for a discovery under the murrer,
17 & 18 Vict. c. 125, s. 50, on the plain- Bovill and Bullar, in support, referred to the tiff's behalf, where the afidavit was made 3 & 4 Wm. 4, c. 41, and 6 & 7 Vict. c. 38, and
by his attorney, and not by himself, contended the plaintiff's remedy was by attachThis was a motion for a rule nisi for leave ment. He cited Carpenter v. Thornton, 3 B.& to the plaintiff to deliver certain interrogatories Ald. 52; Hookpayton v. Bussell, 10 Esch. R. to the defendant under the 17 & 18 Vict. c. 24; Fry v. Malcolm, 4 Taunt. 705; Berkeley 125, s. 51, and for the inspection of a log
v. Elderkin, i Ellis & B. 805; Austin v. Mills, book, the survey of the cargo and bill for re-9 Exch. R. 288; Patrick v. Shedden, 2 Ellis & pairing a ship, in this action against its owner. B. 14; Henley v. Sloper, 8 B. & C. 16 ; Russell
By section 50 of the 17 & 18 Vict. c. 125, v. Smyth, 9 M. & W.810; 1 Dowl. N. S. 929. it is enacted, that “ Upon the application of
H. Hill and Untkank, contrà, referred to either party to any cause or other civil pro
Henderson v. Henderson, 6 Q. B. 288. ceeding in any of the Superior Courts, upon
The Court said, that as far as the plaintiff an affidavit by such party of his belief that any affirmed the judgment
in his favour. But the
was concerned, the decision was final, and 1 Which provides, that "a plea containing
Statutes creating the Judicial Committee had a defence arising after the commencement of empowered it to order the parties to pay costs
, the action may be pleaded together with pleas and the plaintiff had therefore a statutable of defences arising before the commencement of right of enforcing compliance, and might sue, the action, provided that the plaintiff may con
and the power of the Judicial Committee to fess such plea, and thereupon shall be entitled enforce
the order did not affect his right to to the costs of the cause up to the time of the sue. The judgment must therefore be for the pleading of such first-mentioned plea."
PROPOSED “LAW UNIVERSITY” their Incorporated Society, their Provincial AND “MEDICAL COUNCIL.” Societies, and their ancient Ions of Chan
cery, should propose to embody themselves It appears that no steps whatever have in a “ Law University” (No. 2), and exyet been taken to carry into effect the re- clude all other Lawyers ? coinmendations of the Inns of Court Com- It is very evident, from the regulations missioners for establishing a “ Law Univer- of the Inns of Court which have been made sity.” Not only has no Bill been introduced during the last 30 years, that the Bar are into either House of Parliament, in confor- not disposed to facilitate the passing from mity with the Commissioners' Report, but we one branch of the Profession to another, or cannot learn that any one is charged with in any way to favour the association together the preparation of any measure to be sub- of the two branches of the Profession. mitted to Parliament. The Royal Com- Formerly an articled clerk or Attorney mission to inquire into the state of the Inns might also be a student for the Bar, keepof Court and Chancery, with the view of ing his Terms, and being entitled to be securing a sound legal education, was issued called in two years after he ceased to pracin compliance with an address of the House tise or belong to the profession of an Attorof Commons; and it must be admitted ney. He must now be a member for five that the Commissioners lost no time in years after taking his name off the Roll, taking evidence, and have made their Report and during the five years keep 12 Terms on the subject as speedily as could be rea- by dining in the Hall of one of the Inns of sonably expected.
Court. Our readers will no doubt agree with us, It is remarkable that, whilst this prothat the establishment of a University, posed “unilateral” scheme of legal educaconfined to the science of the Law -(re. tion and legal hunours is under consideration, pudiating instruction in other sciences usu- the Medical Profession should thus early in ally taught at Universities), the members the Session have come before Parliament consisting of one branch only of the Profes- with a Bill “ to alter and amend the Laws sion,-and excluding the larger branch,-is, regulating the Medical Profession.” Before as great a mistake as any learned and sen- this Bill was introduced, we anticipated sible body of men could possibly make. that if a medical university were proposed,
By this extraordinary scheme the Attor- it would include the Physicians, the Surneys-at-Law, a body of men recognised by geons, and the Apothecaries; but the prothe Legislature ever since the Statute of moters of the measure have not deemed it Merton in 1235, upwards of six centuries expedient to ask Parliament for the ambiago, are to be excluded from the projected tious designation of a "Medical University:" * University," and Barristers-at-Law and they propose that a Council shall be estatheir pupils alone admitted. Was there blished which shall be styled “ The Mediever such a University since civilised society cal Council of the United Kingdom,” conexisted? What, we may ask, would be sisting of Members chosen by the several said by the Bar if the Attorneys, who have Universities and by the Colleges of Physi
VOL. LI. No. 1,460.
334 Proposed " Law University” and “Medical Council.”—Joint-Stock Companies' Act. cians and Surgeons of England, Edinburgh, of the question may be fully investigated and Ireland ; to establish a Registry of all and discussed ; and, if deemed advisable, a medical men, with power to strike off the Select Committee may be appointed to connames of members who are guilty of mis- sider the details and report the result. conduct, and to secure an efficient examina- Again we invite further suggestions on tion of all future practitioners.
this important subject. We would esThe following evidence of Sir Richard pecially beg our correspondents, who are Bethell, the Solicitor-General, given before attracted by the high-sounding name of a the Inns of Court Commissioners, shows University or a College, to consider in very distinctly the opinion of the Bar at the what way, and to what extent, the Attorpresent day as to the association of Attor- neys would be benefited by an associaneys and their articled clerks with Barris- tion with the Barristers in the same Institers and students :
tution? What were their advantages when “Would you give to those persons who hap
Attorneys were allowed to be members of pened not to be members of the Inns of Court the Inns of Court? and what have they lost an opportunity of attending these Lectures ? by being excluded since the year 1825 ? There is a principle, and probably a narrow How many Attorneys will become members principle, upon which I would exclude them; of the Senate of the University, or of the and it is this, that I think it is essential for governing body of a general College of that department of the Profession to which I Lawyers? And what will the few who are Bar, that they
should be kept apart from other graciously admitted into the Council be able classes of the Protession; and if these lectures to effect for the good of their brethren at were open to all, they would be open to Attor- large? It is not enough that a very few neys and to the clerks of Altorneys, and I con- eminent Solicitors be selected out of ten fess I should object to that intermixture; and thousand, but who would have little weight on that ground I have not proposed that they in the deliberations of the Leaders of the should be open to any but students of the Bar, Bar, Law Officers of the Crown, Queen's and Barristers called to the Bar,
Counsel, Serjeants-at-Law, &c., &c. “Do you see any objection to Attorneys adopting a course of study in analogy to that proposed by the Inns of Court, for their own JOINT-STOCK COMPANIES' ACT. special use? No; they have already, to their very great credit, set us an example of so doing.”
Preliminary. This last sentence justly recognizes the educational progress made by the Attorneys
This part of the Act shall apply to all comtheniselves through the medium and the panies registered under this Act, and after the
2nd Nov., 1856, to all companies registered resources of the Incorporated Law Society, under the Act passed in the 8 Vict. c. 110, and where sereral courses of Lectures were intituled “ An Act for the Registration, Incorestablished in 1833, and where the exami- poration, and Regulation of Joint-Stock Comnation was commenced in 1836. As we ob- panies ;" s. 61. served some time ago, it is for the Attorneys
“The Court" shall mean, as respects coinand Solicitors to consider, -Ist, whether panies registered in England, the High Court they will enter upon a struggle before Par- panies registered in Ireland, the Court of
of Chancery of England, and as respects com. liament to be associated with Barristers Chancery of Ireland ; s. 62. in a Law University or College ;-or, 2nd, In the event of any company being wound whether they will confine their exertions up by the Court or voluntarily, the existing to the establishment of separate and dis- |shareholders shall be liable to contribute to tinct Colleges, incorporating the Barristers the assets of the company to an amount suffiat-Law in one College, and the Attorneys- cient to pay the debts of the company, with at-Law in another. It would, no doubt, be this qualification, that if the company is limited highly advantageous to effect an incorpora- shareholder exceeding the amount of calls, if
no contribution shall be required from any tion and registry of each branch of the any, that are unpaid on the shares held by Profession, and that power should be given him; s. 63. to the several Colleges to suspend or strike In the event of any company other than a off their members for malpractice, with an limited company being wound up by the Court appeal to the Judges.
or voluntarily, any person who has ceased to We presume that whatever course be be a shareholder, either altogether or in respect adopted, in pursuance of the recommenda- of any share or shares, within the period of tions of the Commissioners, the mode of
! We consider most of the clauses for windproceeding will not be by Chartır, but by ing-up Joint-Stock Companies so important, Bill in Parliament, where all the bearings that we submit them to our readers verbatim.