« EelmineJätka »
Notes of the Week.-Superior Courts: Lord Chancellor.
IRISH LAW APPOINTMENTS.
The Attorney-General for Ireland has made the following changes on the Connaught Circuit: Mr. West, Q. C., to be senior prosecutor for the County of Galway, in the room of Sir Richard M'Causland; Mr. Harkan, to be junior Crown prosecutor for the County of Leitrim, in the place of Mr. Blakeny, appointed senior for that county, vacated by Mr. West; Mr. Jordan, to be senior Crown prosecutor for the County of Mayo, in the room of Mr. Blake, Q. C., resigned. — Morning Herald.
SITTINGS BEFORE THE LORDS JUSTICES.
Several cases having been called on before the Lords Justices on the 4th inst., and the Counsel and Solicitors therein not being in Court, their lordships said they were obliged
to strike out the whole paper: they had no alternative.
66 WHOM SHALL WE HANG?" Mr. Benson Maxwell, who wrote the exculpatory pamphlet called "Whom Shall we Hang?" which made some sensation a short time ago, has received his reward in an appointment to Penang, with a large salary. The Opposition paper says, in an epigram called the "Apologist Rewarded: "— Whom shall we hang Is off to Penang, With a place of 2,000l. a-year. The book was a sham,
And we think my Lord Pam
Buys his white-wash excessively dear. So much for an apologizing barrister.-Ediaburgh Daily Express.
[Sir P. B. Maxwell formerly reported for the Legal Observer.]
RECENT DECISIONS IN THE SUPERIOR COURTS.
In re Cameron's Sea Coal and Colebrook Railway Company. Feb. 20, 1856.
WINDING-UP ACTS. FEES PAYABLE ON ISSUING ATTACHMENT FOR NON-PAYMENT
in aid of the Suitors' Fee Fund in respect of any proceedings, orders, or other matters under the said Act or this Act, the interim or provisional manager, or the official manager of any company, the affairs of which shall be woundup under the said Act, shall pay into the Bank of England, with the privity of the AccountantRe-General of her Majesty's High Court of Chanthere placed to the credit of the Suitors' Fee cery in England or Ireland respectively, to be Fund Account, such amount by way of perthe moneys received by the official manager, centage as shall be certified by the Master upon and paid or divided among the creditors, or the contributories of such company in winding-up the affairs thereof, not exceeding the sums following: that is to say,
A direction was refused for the Clerk of cords and Writs to file, without payment of the fees, under the Order of October 25, 1852, clause 5, schedule part 1, the affidavit of default of payment of a call made by the Master, under the 11 & 12 Vict. c. 45, and to give an office copy thereof and seal a writ of attachment on the contributory, and held, that the 12 & 13 Vict. c. 108, s. 95, was not applicable to these proceedings. THIS was an application for a direction to the Clerk of Records and Writs to seal a writ of attachment against a contributory to the above company upon the non-payment of a call. It appeared that the clerk had refused to file the affidavit of default and to give an office copy and seal the writ, except on payment of the fees payable under the Order of October 25, 1852, clause 5, schedule part 1. The application had been directed to stand over for service on the solicitor to the Suitors' Fee Fund.
Roxburgh for the official manager, referred to the 11 & 12 Vict. c. 45, s. 95, and to the 12 & 13 Vict. c. 108, s. 35, which enacts, that "in lieu of all fees to be received or charged
Which enacts, that "all orders of the Master under this Act shall be enforced in the same manner and by the same or any such process as orders of the Court made in any suit pending therein against any party thereto."
Upon the first moneys so paid and divided, not exceeding 50,000l., the sum of 10s. per 100l.:
Upon all further moneys above 50,000l. and not exceeding 100,000l., so paid and divided, the sum of 5s. per 100%.: "Upon all further moneys above 100,000%. and not exceeding 200,000l., so paid and divided, the sum of 38. 4d. per 100l.: "Upon all further moneys exceeding 200,000l., so paid and divided, the sum of Is. 3d. per 100%. Provided always, that it shall be lawful for the Lord Chancellor of Great Britain or the Lord Chancellor of Ireland, by such rules or orders as hereinafter-mentioned, to alter and vary from time to time the rates herein specified."
J. H. Taylor for the solicitor to the Suitors' Fee Fund.
The Lord Chancellor said, that the fee was payable as not excepted by the 12 & 13 Vict. c. 108, s. 35, and the application was refused accordingly.
Superior Courts: Lords Justices.-V. C. Stuart.-V. C. Wood.
Robinson v. Kitchin and another. Feb. 18,
ACCOUNT AGAINST STOCKBROKERS.— DIS-
The defendants carried on the business of
THIS bill was filed by the plaintiff against the defendants, who carried on business in partnership in the city of London as stock and sharebrokers, for an account of the transactions in which he had employed them. The defendants, by their answers, claimed protec tion from a discovery on the ground it would subject them to penalties under the 57 Geo. 3, c. lx., s. 2. It appeared that one of the defendants was admitted a sworn broker under that Act, but that the other was not. The Master of the Rolls having allowed exceptions to the sufficiency of the answers, and made an order for the production of documents, this appeal was presented.
Follett and Martindale in support; Palmer and Rudall, contrà, cited Green v. Weaver, 1 Sim. 404.
The Lords Justices said, it must be assumed that the defendants represented themselves as, and that the plaintiff believed them to be, sworn brokers, and he was therefore entitled to all the remedies which a principal had against his agents, and they were precluded from availing themselves of the protection sought for. The appeal would accordingly be be dismissed.
Exparte Sir Henry Peyton, in re Eastern
Counties Railway Co. Feb. 29, 1856.
RAILWAY COMPANY. - COSTS OF MORT-
Which enacts, that "if any person shall take upon him to act as a broker, or employ or cause, permit, or suffer any person or persons to be employed with, under, or for him, to act as such within the said city and liberties, not being admitted in pursuance of the said recited Act, every such person so offending shall forfeit and pay to the use of the mayor and commonalty and citizens of the said city for every such offence the sum of 100%. to be recovered by action of debt, in the name of the chamberlain of the said city, in any of his Majesty's Courts of Record in which no protection, essoign, or wager of law shall be allowed, or any more than one imparlance."
Certain lands, part of property mortgaged by the tenant for life, were taken by a railway company, and the purchase-money of such land, together with the other lands, were afterwards further mortgaged. On a petition for the re-investment of the purchasemoney, held that the railway company were liable to the costs of the mortgagees prior and subsequent to the sale in relation to such investment.
THIS was a petition by Sir Henry Peyton, the tenant for life of certain settied lands, for the re-investment of the purchase-money of a portion which had been taken by the above railway company. It appeared that the land in question formed part of certain property mortgaged, and that the purchase-money had been afterwards further mortgaged. The question now arose, whether the company were liable to the costs of all the mortgagees in regard to such re-investment.
Malins in support; Rawlinson for the mortgagees; T. Wood for the railway company.
The Vice-Chancellor said, that the costs had been occasioned by the railway company taking part of the estate under their Act, and that the costs of all the mortgagees incidental to the reinvestment must be paid by them.
Upon the death of the next friend of a married woman, an order was made on her to amend her bill within 14 days, by inserting the name of a new next friend, or in default, that her bill should be dismissed. amendment was made, and afterwards she filed a new bill by the brother of her former next friend, and who, it appeared, was a working journeyman currier, at about 13s. a week wages. A motion was granted for security to be given for costs, but held, that the proceedings would not be stayed until the costs of two defendants in the former suit were paid.
THIS was a motion to stay the proceedings in this suit by a married woman by her next friend, until security should be given for costs. It appeared that she had filed a previous bill, and that on the death of the next friend the defendants had obtained an order for her to amend, by inserting the name of a new next friend, or that her bill should be dismissed, and that she had not so amended, but had afterwards filed a new bill by the brother of her former next friend, asking substantially similar relief. This next friend was a working journeyman currier, earning about 13s. a week. It was also asked that the proceedings might be stayed until the costs of two defendants in the former suit had been paid.
Willcock, Rolt, and Hensman in support; W. Pearson, contrà.
Superior Courts: V. C. Wood.—Queen's Bench.—Common Pleas-Exchequer.
The Vice-Chancellor stayed the proceedings | Wm. 4, c. 74, s. 77,' for leave to the applicant, until a sufficient next friend had been obtained a married woman, to convey certain property on further order, but refused to grant that to which she was entitled, without the concurportion which asked for the stay until the pay-rence of her husband, to whom she was ment of the previous costs.
Court of Queen's Bench.
married in France in 1854, and who had been imprisoned in July, 1855, for an assault on the applicant in France. It appeared that he was now resident there and contributed nothing to
Leedham v. Baxter and others. Jan. 19, 1856. the maintenance of the applicant, who sup
SOLICITORS.-UNDERTAKING TO WITHDRAW
Solicitors signed, as well as their client, an
J. Brown in support.
The defendants agreed to let to the plaintiff a publichouse at a rent of 351. for one year from September 29, 1854, and so on from year to year. On their not giving the plaintiff possession by the time fixed, held, that he might recover damages in an action for such not giving possession, and that he was not compelled to bring ejectment. THIS was an action on an agreement signed THIS was a demurrer to the declaration in by the defendants, who were attorneys, under this action which was brought to recover dawhich the record in an action between the mages against the defendants for the breach, plaintiff and one Spencer was "mutually" for not giving possession, of an agreement agreed to be withdrawn, and that Spencer whereby they had agreed to let to the plaintiff should execute a certain deed, &c., within two a publichouse at a rent of 351. for one year months, and that in the event of non-comple- from September 29, 1854, and so on from year tion by that time by Spencer's wilful neglect to year. or default, his solicitors (the present defendants) should withdraw the plea to enable the plaintiff to sign judgment as for want of a plea. It appeared that this agreement was signed by the plaintiff's agents, and by the present defendants as well as by their client Spencer. Default had been made, and the plea not having been withdrawn, this action was brought.
Phipson for the defendants, in support of the demurrer; Bovill and Sumner, contrà.
The Court said, that by the defendants' signature to the agreement as well as their client's showed they contracted themselves personally for the withdrawal of the plea, and that the plaintiff was therefore entitled to judgment.
Court of Common Pleas. Exparte Alberici. Jan. 17, 1856. FINES' AND RECOVERIES' ACT. ANCE BY MARRIED WOMAN HUSBAND'S CONCURRENCE. An application was granted under the 3 & 4 Wm. 4, c. 74, s. 77, for leave to a married woman to convey certain property to which she was entitled, without her husband's concurrence, where it appeared she was living in this country separate from him and maintaining herself, and he resided in France and had been imprisoned there for an assault on her.
THIS was an application under the 3 & 4
Hayes for the defendants, in support, contended that the plaintiff's remedy was by ejectment.
The Court (without calling on Bulwer for the plaintiff, contrà) said, that the case fell within Coe v. Clay, 5 Bing. 440, and that the plaintiff was entitled to judgment.
Which enacts, that "after the 31st Dec., 1833, it shall be lawful for every married woman in every case, except that of being tenant in tail for which provision is already made by this Act, by deed to dispose of any lands of any tenure and money subject to be: invested in the purchase of lands, and also to dispose of, release, surrender, or extinguish any estate which she alone, or she and her husband in her right, may have in any lands of any tenure or in any such money as aforesaid, and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any lands of any tenure or any such money as aforesaid, or in regard to any estate in any lands of any tenure or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole; save and except that no such disposition, release, surrender, or extinguishment shall be valid and effectual unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed."
The Legal Observer,
"Still attorneyed at your service."-Shakespeare.
SATURDAY, MARCH 15, 1856.
PROCEEDINGS OF THE LEGIS
WE have on several occasions during the present Session of Parliament, noticed the several measures relating to the Law which have been under consideration; and now, on the approach of the Easter recess, shall resume the consideration of the several Bills pending in the Houses of Parliament, which either directly or indirectly affect the Profession.
the amendment of the details of the Bill, and some of them have been adopted. We incline to think that it will be advantageous to let the Bill pass, because it contains within it a large amount of public good, and though it may affect the pecuniary interests of Parliamentary Agents and Parliamentary Counsel, it will be generally beneficial to both branches of the profession, by enabling a larger class of cases to be brought into the Court of Chancery, by a summary course of proceeding, which could not be relieved in Parliament on account of the enormous expense of passing private Bills through both Houses. We trust, therefore, every possible exertion will be made speedily to pass the Bill.
In the HOUSE OF LORDS, the most important Bill at present in progress is the Settled Estates Bill, which having passed through a Committee of the House, now stands for 3rd reading. This beneficial measure is threatened with opposition in The measures next in importance, which the form of a clause to exclude from the have also been introduced by the Lord benefit of the Act all parties who have Chancellor, are the Mercantile Law Amendalready applied to Parliament for and have ment Bills,-the one applicable to England been refused powers of leasing, contrary to and Ireland, and the other to Scotland. the provisions of the settlor's will. This The substance of the clauses in these Bills exception, we understand, is designed to are stated in a subsequent part of this exclude the tenant for life of the Mauor of Number, and are principally intended to Hampstead from the power of granting effect alterations in the Statute of Frauds building leases which may encroach on or regarding Contracts for the Sale of Goods; be prejudicial to Hampstead Heath. It-the Law relating to Guarantees and appears to be apprehended that the Court Sureties;-Bills of Exchange;-Limitation of Chancery may be induced to authorise of Actions;-Repair of Ships, &c. what the Legislature has refused. Wel Without attempting to assimilate the presume, however, that if such an applica- mode of Procedure in the Courts of Scottion were made under the provisions of the land with those of England and Ireland, it proposed Act, the refusal of Parliament to must, we think, be admitted that the geneallow the encroachment would have a para-ral principles at least of Commercial or mount weight with the Court, unless it could Mercantile Law should be uniform on both be shown that the circumstances in which sides of the Tweed. The report of the the Legislature refused its sanction were so Commissioners on Mercantile Law (which far altered as to constitute altogether new we laid before our readers) may be too grounds in support of the application. comprehensive to be carried into entire Several suggestions have been made for effect, except by degrees and after VOL. LI. No. 1,162.
consideration, and probably many modifica | days ago intimated that Bills were in pretions of the recommendations of the Com-paration relating to the Law of Divorce and missioners. But we cannot dispute that Church Discipline. Indeed, it seems masome steps ought to be taken for the pur- nifest that the Ecclesiastical Courts cannot pose of removing some at least of the prin- be abolished, until new Courts are provided, cipal conflicting rules between the north and not only for the grant of probates and adsouth parts of the island. At all events, ministrations, but for all the other functions the proposed assimilation of the Law, so now discharged by those Courts. far as it extends, should be carefully and fairly considered.
In the HOUSE OF COMMONS the projects of the greatest importance are the Partnership and Joint-Stock Companies Limited Liability Bills.
The Bill for altering the Law relating to Drafts or Cheques on Bankers which have been written across with some banker's name, is also of very general importance. The recent decisions on this subject appear to render a change in the Law necessary or expedient. The clauses of the Bill were set forth in our last Number; and we think they are all entitled to support, except the last, which provides that in case two
This is objectionable, because if the cheque were refused payment, the drawer might be exposed to a serious imputation on his solvency, for the reason of the refusal would frequently be unknown and his credit might consequently be injured. Let the banker pay to either of the bankers named on the cheque.
The first Bill, after having been amended as we have previously shown, has been withdrawn in order to introduce a new Bill. The Joint-Stock Companies Bill, which has been in Committee, amended and re-com- bankers' names are written across the mitted, now stands for the 31st March, the cheque, the banker may refuse paying the first day after the recess. Objections may amount to either of them. be made to some of the proposed provisions, and useful amendments may be suggested; but on the whole we are of opinion that the Bills would be beneficial in this great trading and commercial country: -- beneficial not only to those engaged in trade and commerce and enabling them to extend their enterprises, but beneficial to the general creditors in cases where the enterprises fail ;because the creditors will have a priority over the claims of the limited partners. Moreover, let it be recollected, that since the total abolition of the Usury Laws, (wisely or unwisely as that measure may have been carried,) the usurer may lend his money to the merchant, manufacturer, or trader, at any rate of interest, however palpably ruinous, and may by the securities he holds sweep away a large part of the whole of the debtor's effects; or at all events may come in and prove the amount of his loans, though he may from time to time have received the full amount in the shape of discount or interest.
It is not improbable, however, that the Chancellor of the Exchequer will claim a penny stamp where the cheque is thus made payable, not to the bearer, but to some specified banker. This, he will say, makes the document an order, and ought to subject it to the duty. It was on this ground the recent decisions took place.
The Bill relating to the Qualification of Justices of the Peace, which stands appointed in Committee for the 16th April, continues to receive the attention of the several Law Societies in regard to the clause excluding Attorneys and Solicitors from acting as Magistrates in Counties, though expressly qualified to hold such office in Next to these Bills stand the measures Cities and Boroughs. We expect soon to for the abolition or transfer of the Jurisdic-place before our readers the Petition of the tion of the Ecclesiastical Courts. Mr. Incorporated Law Society on this subject. Collier's Bill for transferring the Testa- Another proposition, which has excited mentary Jurisdiction to the Common Law much discussion in the House of Commons, and County Courts, the 2nd reading of the County and Borough Police Bill,which is postponed to the 23rd April,-has has been amended since it was first introbeen followed by a notice from Mr. Mullings duced, but is still opposed on the ground to transier the Testamentary Jurisdiction that it will interfere with the local manageto a distimet Court:-evidently eschewing ment of counties and boroughs, vest too both the Comon Law and Equity Courts. much power in the hands of the Home SeBut for beth gothese projects, the Solicitor-cretary, and extend the principle of metroGeneral has need his intention of intro
ducing a Bu stablishing a Court of Lord Lyudhurst also gave notice of a Bill Chancellor, also, a few relating to Church Discipline.