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Notes of the Week.-Superior Courts: Lord Chancellor.-V. C. Stuart.
Society of the Middle Temple, on the 20th | Thomas Worthington Barlow, Esq., to be the November, 1846, has been appointed a Master Queen's Advocate for the Colony of Sierra of the Court of Common Pleas. He reported, Leone.-From the London Gazette of April 4. with Mr. Hurlstone, the cases decided in the The Hon. William Henry Draper, C. B., one Courts of Exchequer and Exchequer Chamber. of the justices of her Majesty's Court of Queen's Mr. Gordon will rank next after Mr. Park, Mr. Bench in Upper Canada, has been appointed Cancellor, and Mr. Methold. It is expected Chief Justice of the Court of Common Pleas that Mr. Airey will be the fifth Master. in Upper Canada.
NEW QUEEN'S COUNSEL.
C. J. Selwyn, Esq., has been appointed a Queen's Counsel. Mr. Selwyn was called to the Bar by the Hon. Society of Lincoln's Inn, on the 27th January, 1840.
H. M'Calmont Cairns, Esq., M. P., has also been appointed a Queen's Counsel. Mr. Cairns was called to the Bar 26th January, 1844, by the Hon Society of the Middle Temple.
It has been ordered by her Majesty in Council, that from and after the 31st day of May, 1856, County Courts shall be holden at Aberdare and Newbridge, in the County of Glamorgan, for the parishes and places thereunto adjacent.
Jonathan Christian, Esq., Q. C., has been appointed Solicitor-General for Ireland. He was called to the Bar in 1834, and appointed a Queen's Counsel in 1846.
M. Prendergast, Esq., Q.C., has been appointed Judge of the Sheriffs' Court of London, in the room of Russell Gurney, Esq., elected Common Serjeant. Mr. Prendergast was called to the Bar by the Honourable Society of Lincoln's Inn, on the 20th Nov., 1820. He is of the Norfolk Circuit and Recorder of Norwich.
The Queen has been pleased to appoint John Lucie Smith, Esq., to be the Attorney-General for the Colony of British Guiana.
Her Majesty has also been pleased to appoint
The Hon. Archibald M'Lean, one of the Justices of her Majesty's Court of Common Pleas in Upper Canada, has been appointed a Justice of the Court of Queen's Bench in Upper Canada, with precedence from December, 28, 1837.
John Hawkins Hagarty, Esq., Barrister-atLaw, in Upper Canada, has been appointed one of the Justices of the Court of Common Pleas in Upper Canada.
G. M. Dowdeswell, Esq., Barrister-at-Law, has been appointed Recorder of Newbury, in the room of H. S. Selfe, Esq., appointed one of the Metropolitan Magistrates of Police..
Sir William á Beckett has been appointed Judge of the Vice-Admiralty Court of the
colony of Victoria.
J. D. Pinnock, Esq., has been appointed Registrar of the Vice-Admiralty Court of Victoria. -From The Observer.
T. C. S. Kynnersley, Esq., has been appointed Stipendiary Magistrate of Birmingham.
This day (4th April) the Right Hon. Sir Lawrence Peel, Knight, was, by her Majesty's command, sworn of her Majesty's most Honourable Privy Council, and took his place at the Board accordingly.-From the London Gazette of 8th April.
Mr. Edward Press, Solicitor, of Norwich, has been assigned the Norwich district and an additional coroner is to be appointed for the Lynn district; the county of Norfolk having, under the Act for "amending the Law respecting the Office of County Coroner," been divided into two districts for the purposes of the said Act.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Goldsmith v. Russell. March 19; April 5,
COSTS OF INSOLVENCY, WHERE SUBSEQUENT
The costs incurred by the assignee in insolvency were ordered to be paid, in a creditor's suit instituted to administer the estate of the insolvent who had subsequently died. It appeared that certain costs, amounting to 4827., had been incurred in an insolvency, and that upon the insolvent's subsequent death a creditor's suit had been instituted to administer his estate. The question now arose, whethis amount should be paid to Mr. Topping, the assignee in insolvency.
W. H. Terrell and Bevir for the respective parties. Cur. ad. vult.
The Lord Chancellor said, he had no discretion in the case, and ordered the money to be paid accordingly.
Hawker v. Hallewell. April 4, 1856.
DEBTOR AND CREDITOR.-CONTINGENT
E., by insolvency order, paid the plaintiff
wards became insolvent and inserted E's name in his schedule, who, however, did not appear and prove: Held, that the 1 & 2 Vict. c. 110, ss. 75, 80, had not the effect of discharging E.'s debt, and that those sections applied only to debts in præsenti, but payable in futuro. The chief clerk's certificate was accordingly affirmed including E's name in the schedule of creditors in respect of the 1,000l. interest and costs, under a decree in a suit to carry out a deed of trust for the benefit of the plaintiff's creditors.
such creditor or creditors, excepting as respects such prisoner's discharge under this Act." Bacon and Freeling, for the defendants, were not allowed to be heard in support.
THIS was a motion to vary the certificate of the chief clerk, including the mame of Mr. Edwards in the schedule of creditors, as being entitled as a creditor for 1,000l., together with interest and costs, under a deed dated in Aug. 1853, whereby certain moneys were conveyed in trust for the plaintiff's creditors, and to pay the balance to the plaintiff, and which deed was directed to be performed by a decree made in Dec. 1853. It appeared that Mr. Edwards had, in the year 1835, paid the plaintiff, who was in embarrassed circumstances, a sum of 250%., as consideration for the bonds in ques-pening of a certain event the obligation was to tion, and that the 1,000l. was to be paid if the plaintiff survived two other persons, and that in 1842, before the contingency took place, the plaintiff had taken the benefit of the Insolvent Act, and inserted the name of Mr. Edwards in his schedule, but that he had not proved bis debt thereunder.
The Vice-Chancellor (without calling on Cairns and Amphlett for Mr. Edwards) said, that it was obvious from the language of the Act it referred to the case of debitum in præsenti, but solvendum in futuro, but that in the present instance from the very terms of the obligation there was at the time of the insolvency no existing debt at all, since on the hapcease. Mr. Edwards was not therefore a creditor who could go in and prove his debt under the insolvency, and the chief clerk had properly certified that he was a creditor for 1,000l. on the bond. The motion would accordingly be refused, with costs to be paid by the plaintiff personally.
James v. Gwynne. April 7, 1856.
SECUTING DECREE.-CHIEF CLERK'S CER-
A bill was filed in 1844, and a decree made in
Malins and Roxburgh for the plaintiff in support, referred to the 1 & 2 Vict. c. 110, s. 75, which enacts, that "after such examination of any such prisoner as hereinbefore directed, it shall be lawful at such hearing or adjourned hearing as aforesaid, for the Court or Commissioner or justices, upon such prisoner's swearing to the truth of his schedule, and executing such warrant of attorney as hereinafter directed, to adjudge that such prisoner shall be discharged from custody, and entitled to the benefit of this Act, at such time as the said Court or Commissioner or justices shall direct, in pursuance of the provisions hereinafter contained in that behalf, as to the several debts and sums of money due or claimed to be due at the time of making such vesting order as aforesaid from such prisoner to the several persons named in his schedule as creditors, for the same respectively, or for which such person shall have This bill was filed in 1844 to establish a given credit to such prisoner before the time deed, and by the decree dated in December, of making such vesting order as aforesaid, and 1853, it was declared valid, and certain acwhich were not then payable," &c.; and to s. counts were ordered to be taken and direc80, which provides, that" the discharge of any tions given for the amount found to be due, such prisoner so adjudicated as aforesaid shall together with the costs to be raised by sale or and may extend to any sum or sums of money mortgage of the lands comprised in the deed. which shall be payable by way of annuity or Negociations for a compromise were subseotherwise, at any future time or times, by virtue quently entered into, but without result, and of any bond, covenant, or other securities of in December last a summons was taken out by any nature whatsoever, and that every person the plaintiff which was adjourned to complete and persons who would be a creditor or cre- his evidence. No further steps had been ditors of such prisoner for such sum or sums taken, and on March 10 last the chief clerk of money, if the same were presently due, shall certified under the provisions of the 15 & 16 be admissible as a creditor or creditors of such Vict. c. 80, that the plaintiff had made default prisoner for the value of such sum or sums of and had not produced the evidence to enable money so payable as aforesaid, which value the him to answer the inquiry and take the acsaid Court shall, upon application at any time count directed by the decree. It appeared that made in that behalf, ascertain, regard being the plaintiff, at the meeting on that day, had had to the original price given for such sum or tendered his evidence and offered to proceed, sums of money, deducting therefrom such and on the chief clerk refusing to receive the diminution in the value thereof as shall have same, this application was made to stay the been caused by the lapse of time since the certificate and for leave to prosecute the ingrant thereof to the time of making such vest-quiry on such terms as the Court might think ing order as aforesaid; and such creditor or creditors shall be entitled in respect of such value to the benefit of all the provisions made for creditors by this Act, without prejudice, nevertheless, to the respective securities of
Southgate in support; Bacon, Gisborne, and Freeling, contrà.
The Vice-Chancellor said, that the application could not be tolerated, particularly in the
Superior Courts:-V. C. Stuart.-Court of Insolvency.
present practice of the Court, which required the rights of parties to be adjusted as speedily as possible, and the motion was accordingly refused with costs.
Sheppard v. Smith. April 7, 1856.
PAYMENT OF DEBTS AND LEGACIES OUT OF
Devise and gift of all the testator's real and
the mourning for his servants to be paid for out of his personal estate: Held, that the debts and legacies were payable by the real and personal estate rateably.
Court of Insolvency.
INSOLVENT ACT.-ALLOWANCE FROM CRE-
Held, that the affidavit in support of an ap-
THIS was an application under the 1 & 2 Vict. c. 110, s. 86, for an allowance whilst under imprisonment for 15 months for fraud, at the suit of Messrs. Shoolbred and Co., and Messrs. Halling, Pearce, and Smee.
THE testator, by his will, after directing such prisoner shall, upon such adjudication as Section 86 enacts, that "in all cases where mourning to be provided for his servants, aforesaid, be liable to further imprisonment at which was to be paid for out of his personal the suit of his creditor or creditors, or any or estate, gave certain legacies, and then gave and either of them, it shall be lawful at any time devised all his real and personal estate to trus- for the said Court, on the application of such tees in trust to pay all his debts and legacies, prisoner, to order the creditor or creditors at and subject thereto as therein mentioned. The whose suit he shall be so imprisoned, to pay question was, whether the debts and legacies such prisoner such sum or sums of money, not were payable out of the personalty, or rateably exceeding the rate of 4s. by the week in the out of the real and personal estate. in such proportions as the said Court shall whole, at such times and in such manner and direct, and that in failure thereof, as directed by the said Court, the said Court shall order custody at the suit of the creditor or creditors such prisoner to be forthwith discharged from so failing to pay the same."
Smythe, De Gex, and Brodrick for the respective parties, citing Boughton v. Boughton, H. of L. Cas. 414.
The Vice-Chancellor said, that the debts and legacies were payable rateably out of the real and personal property.
The Court said, that as the affidavit did not set forth whether the insolvent had applied to the members of his family and exhausted every means to support himself, the application must be refused, but it might be renewed on a proper affidavit.
In re Meddowcroft. April 8, 1856. ATTORNEY, WHERE ASSIGNEE - ALLOW
ANCE OF COSTS TO, OF CHANCERY SUIT. Held, that an attorney and solicitor who was appointed assignee in an insolvency, is entitled to his costs as an attorney as well as the usual allowance as assignee.
It appeared that in this insolvency an attor
THIS was a suit by a legatee to obtain payment of a legacy under the will of a testatrix, and by the decree certain inquiries were di-ney and solicitor had been appointed assignee rected as to whether another specific legatee (Matthew Gooch) was alive. It appeared that he had been ultimately found to be in Australia, and the question now arose, on further directions, how the costs of such inquiry, which were considerable, should be borne, as there was no general estate,—whether rateably or by Gooch alone.
Karslake for the plaintiff; Field for Gooch; Bagshawe, jun., for the defendant and executrix. The Vice-Chancellor said, that the costs of the inquiry for Gooch must come out of his legacy, and the general costs of the cause be paid rateably by both legatees.
and had instituted proceedings in Chancery on behalf of the estate and had realised considerable property. The question was, whether he was entitled to his costs out of pocket only as a trustee, or to the usual costs.
Nicholls for the attorney; Sargood, contrà. The Court said, that an assignee was only a trustee sub modo, and that he was entitled to his costs when necessarily employed as an attorney. The assignee was allowed 24 per cent., besides the costs of his attorney, and the Court had power to give remuneration to a person for getting in the estate. The costs as an attorney would therefore be allowed.
The Legal Observer,
"Still attorneyed at your service.”—Shakespeare.
SATURDAY, APRIL 19, 1856.
SUMMARY OF COUNTY COURT
We submitted to our readers, some weeks ago, the several clauses in the Lord Chancellor's Amendment Bill relating to the County Courts. It may be convenient briefly to state the alterations which the Bill proposes. Although introduced on the 11th March into the House of Lords, the second reading has not yet been appointed, and it is well that time has thus been afforded to consider the subject.
The Judges and officers of these new Courts appear to be equally dissatisfied
with the amount of their emoluments. The measure was introduced in the humble form
of "a Small Debts Court." Such was the title of the first Act. It was to supersede
and render uniform the small local Courts called Courts of Request. The salaries of the Judges were to be 1,000l. a year,afterwards increased to 1,2001.,-and now the struggle is to raise them to 1,500l.
pense of 90,000l. a year, and travelling expenses, had been imposed on the resources of the Chancellor of the Exchequer when the "Small Debts" Bill was first intro
duced, there would have been any chance of
first proposal of these Courts, they would
We believe that the clerks of the County Courts, or Registrars, as the Bill proposes they should hereafter be called, are in many, if not the majority of instances, insufficiently remunerated for the duties they have to perform; and we should be glad to see this the Court should have a just and fair allowgrievance redressed. The chief officers of
ance for their services. We understand
It is scarcely necessary to observe that In the outset the salaries of the Judges, the exclusive privilege of the Bar to be aptheir clerks, and other officers were to be pointed to these Judgeships is continued, paid by fees, as the assessors or clerks of both as to the Judges themselves and their the Courts of Request had been. The deputies in case of absence. And now that startling amount of the County Court fees the jurisdiction of the Courts are so much and the heavy costs to the poor suitors, as enlarged and further powers are to be concompared with the fees of the Superior ferred on them, with larger salaries, there Courts, have induced the proposers of the is but little prospect of any change in the present Bill to relieve the suitors by judicial qualification. "Barristers of seven throwing the salaries of the Judges on years' standing" will, of course, be excluthe Consclidated Fund to the amount of sively appointed.
about 90,000l. a year, besides travelling
The jurisdiction of the Courts is to be We cannot but admit that the State extended to the following matters:— should pay the Judges of all the Courts; Actions for malicious prosecutions may but we venture to ask whether, if this ex-be brought in the County Court. VOL. LI. No. 1,467.
Summary of County Court Proposed Amendments.
A summons may issue though the cause of action does not arise in the district.
Where a set-off reduces the claim to 50%., the County Court is to have jurisdiction.
Its jurisdiction is also extended by the present Bill in cases between landlord and tenant. The possession of small tenements may be recovered by plaint, and if the tenant neglect to appear, or refuse to give possession, the Judge may, on proof of the service of the summons, issue a warrant to enforce possession.
Proceedings by the landlord may also be taken in the County Court for non-payment of rent.
And judgment may be obtained for mesne profits.
The registrar is empowered to grant Replerins and assign replevin bonds.
An action may also be brought for recovery of possession by a mortgagee where a mortgage debt does not exceed 1007; and in ejectment by a mortgagee where the mortgagor pays the principal, interest, and costs into Court, a reconveyance will be enforced by the Court.
So in cases of interpleader :-Where a defendant alleges that the right in the subject-matter of the plaint belongs to a third party, the Court may order such third party to appear and maintain or relinquish his claim, and in the meantime stay proceedings against the original defendant; and if such third party does not appear, the Court may bar his claim against the original defendant.
In case of the death of either the plain tiff or defendant, the proceedings may be continued by or against the executor or administrator.
So neither marriage, bankruptcy, nor insolvency are to abate the proceedings.
The districts of the Metropolitan Courts are to be treated as one district, so that a plaintiff residing in the jurisdiction of one of the Metropolitan Courts may sue a defendant residing within the jurisdiction of any other of such Courts.
In certain cases the Judge may direct the cause to be tried in a neighbouring Court. The Judge of a Superior Court may direct a cause to be tried in a County Court. Summonses to witnesses may be served by th party, his attorney, or agent.
If the demand exceed 201., the defendant must give notice of defence, or suffer judgment by default. Why not in all cases?
The Judge's power to direct the payment of the debt by instalments is limited to cases not exceeding 201. This limitation, we submit, should apply to debts of 107. Indeed it is a sufficient hardship on a plaintiff in small debts to go to the Court for the various instalments that may be paid in.
The costs of Attorneys are limited to 10s. where the debt or damages claimed do not exceed 51., and to 158. where they do not exceed 201., and no further or extra costs can be recovered from the client, unless the registrar on taxation shall be satisfied that the client agreed in writing to pay such further charges.
In cases under 207. the fees to Counsel are not to be allowed, except by leave of the Judge.
Where the claim exceeds 201. the costs are to be taxed according to a scale to be settled by the Judges with the concurrence of the Superior Courts.
There does not appear to be any clause giving the suitor the option of proceeding Some amendment seems required in the in the Superior Courts for sums less than 45th clause, relating to the priority of exe- 201., and consequently he will be subjected cutions of the County Courts where there to the loss of his time in entering the plaint are also executions from the Superior and attending to support it, and applying Courts. As the clause is worded, it ap- from time to time for the instalments in pears that some preference as to time is which the debt is ordered to be paid. This given to the County Courts. This, we loss and inconvenience will often occasion presume, cannot be intended, but the frame the abandonment of claims which might be of the clause requires attention.
Amongst the improvements which the Bill effects in the course of the County Court proceedings, are the following :
As to the service of process, where the claim exceeds 201., the plaintiff or his attorney may serve the summons on the defendant. This restored right should be allowed where the claim amounts to 10, if not still lower.
enforced (where there is no defence) at small expense in the Superior Courts, where the business is done by the attorney or his clerk, and the plaintiff has no occasion to leave his place of business.
Thus the suitors are driven into the County Courts nolens volens, although we are constantly informed that they are greatly esteemed and pre-eminently popular. But then it is said that if this option were