Page images
PDF
EPUB

tion might be frustrated if his admission were delayed; the Court, on the last day of term, allowed him to give notice and be examined for the purpose of admission during the next term.

T. OLDFIELD moved, on behalf of Horace Young, that he might be admitted an attorney of this Court in next term. The applicant stated on affidavit that he gave the usual notices for his admission for Michaelmas term, 1847, passed his examination, and obtained his certificate of such examination: that, before the certificate ceased to be in force, he went to France on account of delicate health, intending to stay only a few months, but, by reason of continued ill health, remained abroad till last March. That, being unacquainted with the necessity of enlarging the time for his admission, he did not apply to a Judge of this Court within the time limited for that purpose, and that he was unable now to obtain his admission without the order of a Judge: that a negotiation was depending for his reception into a law partnership; and that a delay of his admission would operate greatly to his prejudice, and might put an end to the negotiation. Oldfield stated that no objection was made to this application by the Law Society. He distinguished the case from Ex parte Bromley, 2 Dowl. N. S. 388, where the same grounds for concession did not exist as in the present instance; and he cited Ex parte

Holland, 5 Dowl. P. C. 681, and Ex *parte Webb, 4 Dowl. & L. *653]

641, as analogous cases in which this Court had granted indulence. [ERLE, J.—The rule of Easter term, 9 Vict.,(a) is express ; 6 such certificate to be in force only to the end of the term next but one following the date thereof, unless such time shall be specially extended by the order of a Judge.” You contend that the time may be extended now, and by order of the Court. WIGHTMAN, J.-The order of this Court is not the order of a Judge. We have no power, by the rule, to extend the time. Ex parte Bromley was not decided on the particular circumstances of the case, but on the words of the rule. PATTESON, J.

-This party might have obtained an order extending the time before he left England, or have employed some one afterwards to get it done. WIGHTMAN, J.-We might empower him to give his notice now, and to be admitted by the last day of next term, and in the mean time be examined again. PATTESON, J.—That is all we can do for you; and that is a stretch.](6) Per Curiam.(c)

Ordered: That the examiners appointed, &c., pursuant to the

rule of Court of Easter term, in the ninth year, &c., be at liberty to examine the said Horace Young during the next term; and, in the event of the said H. Y. passing such his examination, that he be admitted as an attorney of this

Court. (a! 8 Q. B. 631 (E. C. L. R. vol. 55).

It See In re The Examiners of Attorneys, 8 A. & A. 745 (E. C. L. R. vol. 35); and In re The Same, 9 A. & E. 728 (E. C. L. R. vol. 36).

(e) Patteson, WIGITsan, and Erle, Js.

*MARSON and DADLEY v. LUND. May 8. [*664 Under the Winding up Act, 11 & 12 Vict. c. 45, s. 73, if a creditor, having sued out a scire facias against a contributor to a company whose affairs have been referred to the Master, does not obtain the Master's permission to proceed, and has not proved before the Master, a judge is bound, if called upon, to stay the proceedings till such proof has been made, and cannot exercise a discretion with reference to the propriety or impropriety of the conduct pursued by the Company or the contributor.

WILLES, in this term, obtained a rule calling on the plaintiffs to show cause why all proceedings in this action should not be stayed until after the plaintiffs should have proved, or exhibited, or made such proof as they might be able of, their alleged debt or demand therein, before the Master, in pursuance of the provisions of stat. 11 & 12 Vict. c. 45.(a)

From the affidavits in support of the rule, it appeared that the plaintiffs had recovered judgment for 2641. 48. 4d. against The Universal Salvage Company, a Company completely registered and incorporated; and had afterwards issued a scire facias against the defendant as a shareholder. The Company having taken proceedings in Chancery to wind up its affairs, Sir J. L. K. Bruce, V. C., by order of 10th November, 1848, referred the case to a Master in Chancery, and defendant was entered as a contributory. The plaintiffs had made no proof before the Master, and had not received permission from him to proceed in the action. The defendant had taken out a summons to stay the proceedings : but, on its being attended before COLERIDGE, J., the learned Judge directed that application should be made to the full Court.

*The affidavits in answer stated facts to show that the plaintiff's had proceeded with diligence; that judgment against the Com

[*665 pany had been recovered by default; that the Company had beld out, from time to time, expectations that the debt would be paid; that execution had issued against the Company; that the defendant had promised payment; that afterwards he had pleaded to the scire facias, and plaintiffs had demurred to the plea; and that, the defendant having joined in demurrer, the case was now standing for argument. .

Shee, Serjt., now showed cause.—The conduct of the Company and the defendant has been such that this Court will not stay the proceedings. [ERLE, J.-Have we any discretion under sect. 73 of stat. 11 & 12 Vict. c. 45? Does not scire facias come within the words “proceedings” and “ action ?"] It does. But the section is not imperative on the Court: the words are “it shall be lawful for any Judge of the Court in which such action shall be pending, upon summons,” &c., “ to order that all further proceedings in such action shall be stayed until after such proof shall have been made or exhibited before the Master."

(a) “ To amend the acts for facilitating the winding up of the affairs of joint stock companies unable to meet their pecuniary engagements; and also to facilitate the dissolution and winding up of joint stock companies and other partnerships."

Thompson v. Universal Salvage Company, 3 Exch. 310, † may be cited on the other side. There it was held that a party had not used due diligence who had not proved before the Master: and he was not allowed to issue execution against a contributory. But here the affidavits show, not only diligence on the part of the plaintiffs, but that both the Company

and the defendant have so conducted themselves as to be disentitled *666]

to make the objection as *against the plaintiffs. [PATTESON, J.

Sect. 73 says “except so far as the Master shall permit:" it seems to be left to his discretion. Why cannot the plaintiffs prove to

? It may be done in a day: after that the proceedings cannot be stayed under sect. 73.]

Willes, contrà, was stopped by the Court.

PATTESON, J.(a)—I should say that, although the word “ lawful” be used, it is imperative on us to stop the proceeding: but we can do so only until proof has been given before the Master. WIGHTMAN and ERLE, Js., concurred.

Rule absolute.() (a) Lord DENMAN, C. J., was absent. (6) The plaintiffs afterwards obtained judgment on demurrer, Hil, T., 1851, Marson v. Lund.

morrow

[blocks in formation]

a

Motion by an assignee for a mandamus to the Insolvent Debtors' Court in London, to re-examine

an insolvent under-stat. 1 & 2 Vict. c. 110, s. 98. The insolvency bad taken place, and the petition, &c., had been exhibited in 1839, more than twenty miles from London, and within the district subsequently assigned to the Somerset County Court; the original adjudication had been made by a commissioner on circuit; and stat. 10 & 11 Vict. c. 102, had since passed, which abolishes the circuits, and, prospectively, gives jurisdiction to the County courts in cases arising within their respective districts at the distance of more than twenty miles from

London. Held, that the Insolvent Debtors' Court in London was the proper jurisdiction. A rule nisi for a mandamus was granted, and no cause shown.

W. H. Cooke, in this term (May 4th), moved (a) for a mandamus, to be directed either to the Commissioners of the Insolvent Debtors' Court *667]

in London, or to the Judge of the Somersetshire County *Court,

requiring them or him to proceed upon a further examination of Frederick Willcox, an insolvent debtor, under stat. 1 & 2 Vict. c. 110, 8. 98, which empowers the assignee of an insolvent whose discharge has been adjudicated under that act to apply from time to time to the Insolvent Debtors' Court that such person may be further examined by the said Court or by a Commissioner thereof on his circuit, as to any matters or things relating to his estate and effects. It appeared on affidavit that, in 1839, the insolvent had filed his schedule at Cardiff, but he was now residing within the jurisdiction of the Somerset County Court. Ile had been discharged by a Commissioner of the Insolvent Debtors' Court; and an assignee had been appointed; but the adjudication of

(a) Before PatteSON, WiGutman, and Erle, Js. The motion was made with the assent ví thu Insolvent Debtors' Court, and for their guidance.

discharge was annulled(a) on the ground of fraud in the insolvent; and he was remanded to custody. In consequence, however, of a defect in the proceedings, he was again discharged. On subsequent information as to his estate, the assignee applied, in December, 1848, to the Insolvent Debtors' Court under the above-mentioned statute; but they declined to interfere, being of opinion that, stat. 10 & 11 Vict. c. 102, having come into operation (15th September, 1847; see sect. 20), their jurisdiction in cases arising more than twenty miles from London was taken away, and transferred to the County Court by sect. 10 of that statute. The Judge of the County Court declined to proceed, holding that no jurisdiction was vested in him, because the insolvency and filing. of the schedule had taken place before stat. 10 & 11 Vict. c. 102, passed. *Cooke now argued that, both Courts declining jurisdiction, a

[*668 mandamus ought to go to one or the other, at least to hear the application; there being no possibility of bringing it again before a Commissioner in the country, since it had been enacted, stat. 10 & 11 Vict. c. 102, s. 10, “ that from and after the 15th day of September," 1847, 6 the circuits of the Commissioners of the said Court for the relief of insolvent debtors shall be abolished.” [ERLE, J.—Every discharge of an insolvent keeps a continuing authority in the Court. Was not this a matter on petition « now in dependence,” as to which, therefore, the jurisdiction of the Court and Commissioners is preserved by sect. 9?] That refers to particular statutes relating to the Courts of Bankruptcy; and it may be questioned whether the clause applies to cases not within those acts.

Cur. adv. vult. PATTESON, J., now delivered judgment as follows. The insolvent in this case cannot be examined by a Commissioner of the Insolvent Debtors' Court on circuit; for the power of a Commissioner on circuit is gone since stat. 10 & 11 Vict. c. 102. If that Court retains any jurisdiction, the proceeding must be before the Court itself. The Judge of the County Court cannot act, because the transfer of jurisdiction to that Court by the same statute is prospective, and cannot relate to past transactions. Sect. 9 keeps up a jurisdiction in the Insolvent Debtors' Court as to proceedings “now in dependence;" but the matter in question is not depending under the statutes there referred to. I find nothing, however, to preclude the Insolvent Debtors' *Court from acting, as in a case within that section, in a matter which has been adjudi

[*669 cated upon under the Insolvent Debtors' Acts. I see no difficulty in their making an order in such a case; and that is the conclusion we have all come to on looking at the several clauses of the statute.

Rule nisi for a mandamus to the Insolvent Debtors' Court.
No cause was shown; and the Insolvent Debtors' Court made the

order for further examination.

(a) See stats. 7 G. 4, c. 57, s. 67, 1 & 2 Vict. c. 110, s. 96.

*670]

*EASTER VACATION.(a)

[ocr errors]

DOE, on the demise of JOHN DAND, v. HONOUR THOMP

SON.() May 12. By the custom of a manor, the customary tenements thereof were held of the lord, for the joint

lives of the customary tenant and the lord, at the will of the lord, according to the custom of the manor, at customary rents and services, and were descendible from ancestor to heir. Alienation inter vivos was made by customary deed of bargain and sale from alienor to alienee, and surrender and admittance thereon in the customary court, the deed being licensed by the lord, and a memorandum of the license endorsed on the deed. A fine was paid on the death of lord or tenant, and on alienation. The admittance of an heir, in form, stated that the heir took of the lord, upon the demise of the steward, the tenement now in the hands of the lord, to be granted to the heir on the death of the ancestor, to hold for the joint lives, &c. (as by the custom above stated). Held that an heir could not, before being admitied, maintain ejectment against a stranger. EJECTMENT for a messuage and land in Cumberland.

On the trial, at the Cumberland Spring assizes, 1846, a special verdict was found, which, so far as it is material to the decision in the present case, was as follows.

The messuage and land have immemorially been, and are, within and part and parcel of the manor of Oulton. There have been immemorially divers customary tenements of and in the same manor, of which tenements the said messuage and land have immemorially been one. The said customary tenements immemorially have been, and are, held of the lord of the manor, for the joint lives of the customary tenants or tenant thereof respectively and of the lord for the time being, at the will of the lord, according to the custom of the manor, at certain customary rents and services; and immemorially have descended, and have been and are de

scendible from ancestor to heir, according to the custom of the *said *671]

According to the custom, on alienation inter vivos, the customary tenements have immemorially been and are conveyed and conveyable in manner following, and no otherwise : viz., by customary deed of bargain and sale from the alienor to the alienee, and by surrender and admittance thereon, in the customary court of the manor; such deed being licensed by the lord, and a memorandum of such license, signed by the lord, or his steward, being endorsed on such deed. A fine of twenty times the ancient customary rent has been immemorially, and is, paid on admittance after the death of either lord or tenant, and also upon the change of tenant by alienation. By the custom, no customary tenement hath been or is devisable by will, or surrenderable to the uses or use of a will. Where a customary tenant has been desirous of disposing of his customary tenement after death, the only custom has been, and is, for him to convey the same to a third person as a trustee, by

(a) The Court sat in Banc on the 9th and 12th of May.
(6) See Doe dem. Dand v. Thompson, 7 Q. B. 897 (E. C. L. R. vol. 53).

« EelmineJätka »