Page images

Superior Courls : Lord Chancellor's Court; Queen's Bench.

365 creating any trust. The general rule was, act of the wife to give it, for marriage gives that where a woman has moveable property it. In this and other points of view, this case over which she has absolute power of dispos- was distinguishable from that of Tullett v. ing, that property becomes the husband's hy Armstrong. the marriage. With respect to leaseholds and Mr. Paynter for the sheriff, said he was choses in "action belonging to the wife, the ready to submit to any order the Court would husband acquires, by the marriage, not the be pleased to make. immediate possession of them, but a capa

The Lord Chancellor.—The principle is, city to reduce them into possession. In that when property is given to a woman for Anderson K. Anderson,5 a case in some re- her separate use, upon her subsequent mar. spects like the present, the wife's separate riage, a trust attaches on that property for her estate was held to be confined to the leasehold use during the coverture. At present, he property, and not to include the furniture and could not say whether such was the case here, other effects in the house, although they had but he suggested an inquiry before the master been purchased by the wife out of the bequest to ascertain bow much, if any, of the property to her to her separate use before her marriage. seized by the sheriff and now in his possession, (The learned counsel upon reading the report, was the property left to the plaintiff by her adınitted that the case was not so much in father's will, and also (on Mr. Wigram's sugfavor of his argument as he had supposed, but gestion,) how much of it was purchased by the he submitted that it was not against hiin.) In wife by the property so left to her. the present case, the husband appeared to the Mr. Wigram.-ånd the sheriff ought to world to be the owner of the house and furni- withdraw, as the leasehold houses are ample ture; he dwelt in it with his wife, and was security for the debt, and it is not likely the complete master of it, to all appearance. The plaintiff will remove the property, or any part sheriff had not any notice of a trust for the of it, during the proposed inquiry. According wife when he took the goods in execution to the evidence now before the Court, all the under the otl:er defendant's judgment. property was the wife's.

The Lord Chancellor.-Judgment and exe. The Lord Chancellor.-I cannot remove the cution do not bind trust property, and there sheriff's officer, nor say this is the wife's proare numerous cases in bankruptcy where they perty. That is the subject for inquiry before have no such effect.

the master. Mr. Bethell.Though not in bankruptcy, Mr. Wigram.-We are ready to give a yet generally they were allowed to have a charge on the whole of the property, for so binding effect. If the doctrine of protecting much as may be found by the master not to be trust property was to be extended to concealed the trust property of the wife. trusts between husband and wife, it would The lord Chancellor.-I cannot vary the open a wide door to fraud, for which such former order.h The security must be for all facility would be afforded in cases where no that the judgment creditor and the sheriff may trustees are interposed.

be entitled to,--the costs to be reserved to the The Lord Chancellor.-As to concealment, hearing. the same might happen even where there are Newlands v. Holmes and Paynter, Sittings at trustees; the creditors could not or might not Lincoln's Inn, February 28th, 1840. know of the trust. I do not know what case may be made at the hearing of the cause, but

Queen's Bench. it appears to me at present, according to the doctrine laid down in Tullett v. Armstrong,

[Before the Four Judges.] that this is a trust for the wife's separate use. The principle of any decision there was, that

The Poor Lar Commissioners have no au.. any man marrying a woman having property

thority to issue to an incorporated union, to her separate use, and no settlement being inade of it, must take it as he finds it; that a

formed under Gilbert's Act, an order, parts

of which impose new duties on one of the trust for the wife's separate use attaches on it

officers of the union, and thus occasion a on the inarriage, and continues during the

necessity for a new salary to be granted corerture. If this plaintiff bad been married

to him; and such order being bad as to before the testator's death, the husband clearly

purt, and being an entire order, is bad as could not take the property, but whether any

to the whole, und must be quashed. act was done by the wife before the marriage to give the property to the husband, was another In this case a certiorari had been applied for matter, which would appear at the hearing, to bring up an order of the Poor Law Coindepending also on the settlement that was missioners, dated on the 13th of March, 1937, executed.

in order to quash the same, on the ground Mr. Bethell. That settlement gave nothing that it contained directions which the Comto the wife that she had not before ; but it gave missioners had no right to give. The parts the husband an interest in 60001. bank stock, specially objected to were as follow:part of the property left to the lady, and it was “Besides the performance of the duties silent as to the rest. The wife might at any herein specified, with relation to the accounts time transfer any part of the property to her of the incorporation, and the general obserhusband. The inoveable property required no

vance and execution of all lawful orders, regu. 8 2 Myl. & K. 427.

ha See p. 125, ante.



Superior Courts : Queen's Bench: Conimon Pleas.

lations, and instructions of the Poor Laiv | right to make. Jf, therefore, the Poor Law Commissioners, and the guardians, the fol-Commissioners bad a right to appoint, as they lowing shall be the particular duties of the liave, an inspector, they had no right to appoint several paid officers enumerated :".

him for the purpose, among other things, of The following shall be the duties of the inspecting the accounts. There is nothing in clerk :"

such a right of appointment inconsistent with " To prepare or superintend the preparation, the provisions of Gilbert's Act. The guardians and take measures for ensuring the prompt and are indeed subjected to a new control, but ibat correct return of all such statistical informa- arises from the declared necessity of auditing tion and reports as may be required for the the accounts. The visitor may discharge bis public service.”

duties under the old act, but the auditor is “ The pauper description book, which shall specially appointed by the new act to perform contain a statement of the names and descrip- duties of a new, but not of an inconsistent tion of all paupers in the incorporation, ar-kind. The order of the Poor Law Commisranged according to their respective parishes ; sioners is therefore free from' objection on this and particulars respecting them, according to head. Then it is stated to be necessary to have the healings of the several columns in form the assistance of an intelligent clerk, to do nuinbered 9, that is to say, &c.

what the commissioners require. The treaThe case was argued some time since, and surer now performs all the duties at present the Court took time to consider the judgment required in that office. His doties under Gil. The facts of the case, and the arguments, are berts Act were confined to the receipt and sufficiently referred to in the judgment. expenditure of money; and some notion may

Lord Denman delivered judginent in this be formed of the linited nature of those duties, case. This corporation, which ivas a unicn of when we recolloct that his salary is fixed by the parishes for the relief of the poor, was formed 12th section of that act, to the small suin of under the 22 G. 3, c. 83; and the question 101. per aninum. The commissioners inay, no here is, as to the authority of an order issued doubt, appcint an auditor to perform, in a by the Poor Law Commissioners with respect better manner, the old duties of the visitor, to the corporation. It was said in the argu- but by their order other duties are now imment here, that the Poor Law Amendment posed upon him-duties which appear to us to Act expressly saved Gilbert's Act in all mat- go beyond the limits of the power of the Poor ters in which the regulations of the latter were Law Commissioners under the recent act; and not specifically altered by the former. Under it is not suggested that they derive any authoGilbert's Act the overseer is to pay from time rity in tliis inatter from any other source. It to time to the treasurer of the united parishes, may be very proper to take ineasures to ensure their due proportion and quota of the several correct returns of all such statistical reports as expences attending the poor therein. The the cominissioners may deem it requisite to treasurer under that act' is to disburse the possess for the public service. This may be inoney under the orders of the guardians, and a very desirable inatter, but this new Jabour the visitor is to examine and pass the accounts must be paid for: that, therefore, would be a after they have been verified on oath by a jus- new expence, and the commissioners have no tice of the peace; and he shall settle the ac- right to impose such new expense oni a parish; counts between the guardians and the treasurer and the benefit is too remote to be considered if any dispute shall arise respecting the same.

as rendering the matter as one within their juris. These are the provisions made under that act diction, as coming within tlie necessary regu. for the duty of auditing the accounts, and we lations for the adininistration of relief to the cannot but think that the expenditure under poor. That part of the order, therefore, (and such provisions might be inadequately watched the order is entire) is, in our opinion, beyond For under the provision respecting the settle the power of the commissioners to make, and the ment of the acoounts between the guardians order itself cannot consequently be supported, and the treasurer, if any dispute shall arise because, being an entire order, and one part berespecting the same, it is clear that so long as ing bat, the whole becomes invalid. We have no dispute arises--so long as the guardians pointed out all these matters in order to show and treasurer are agreed,--the visitor has no how far their authority can be legally and proright to interfere. And even when he does perly exercised without inconvenience. It does interfere in the case of a dispute between them, so happen here that in this particular case their it does not appear that lie has a right to do authority' has beeti exceeded. rbe order, more than to ascertain the amount, and accu- therefore, inust be quashed. rately settle the sumn in dispute. So that he

The Queen'v. The Poor Law Commissioners, does not appear under that act to have any H. T. 1840. Q. B. F. J.

in the mutter of the Allstonefield Incorporation, control over the overseer with whom the expenditure originates, as to the nature of that expenditure. But whatever we may think of the sufficiency of these powers of the visitor

Contron Pleas. under that act to regulate the charges upou 5XECUTION OF Power. the funds of the parish, it seeins to be admitted that a necessity has arisen for an inspection and auditing of the parish accounts in such a Directions from an-assured to two persons to inanner as the visitor under that act had no effect a life-policy in their oirn names, do


Superior Courts : Common Pleas.

367 not authorize them to effect it in their own being due to them ; it was therefore necessary name and that of another, so as to charge to produce the first policy, and that has not

the assured with the premium paid. been properly proved. On the second point, Watson shewed cause against a rule nisi ob- however, the defendant is clearly entitled to a tained by K'elly for a nonsuít. It was an action noosuit, They effect a policy in their own of assumpsit for money pairl, and on an ae- names and in the name of a stranger to the count stated, to which the defendant pleaded defendant. All authorities should be strictly non-assumpsit. It appeared from the atti pursued, Com. Dig. Attorney, c. 11, 13. This davits that the plaintiff and his deceased part-is an authority to do a particular aet, and the Der Stewart, bad been navy agents, and in that plaintiff has exceeded it. Allroood v. Mancapacity had been employed by the defendant. ning's,a and Fenn v. Harrison, are decisive in On the 26th April, 1832, the defendant being favour of the defendant. Suppose the desenindebted to the plaintiff and Stewart, wrote dant's executor were sued for the debt, would thein a letier, in which, after stating that he payment to Smith be an answer? or, suppose had appeared before the directors of a life Smith released the debt. assurance office, he went on to say, “ I request Bosanquet, J.-This is an action by a surthat you will effect an insurance on my life for viving partner, for premiuins paid on a policy, 2001., for seven years, and continue the pay- which, it is alleged, was effecied by the defen ment of the premiums, as this insurance is for dani's authority; the defendant authorized his the purpose of securing my debt to you, you agents to effect a policy in their own names inay base it effected in your own names, and for seven years. This policy is effected. acit inay be assigned to me in the event of your cordingly. At the end of two years it is suffered debt being satisfied.” It appeared further, to lapse; in the mean tiine a new partner is that in pursuance of the above instructions, a taken in, and another policy is effected for the policy was effected on the defendant's life, remaining portion of the time. The action is which having been allowed to expire at the end then brought for the premiums on the second of two years, was renewed in 1834 for the policy, which was effected in the names of residue of the seven years; and it was for the Barron, Stewart and Smart. A paper purportpremiums on this policy, which had been paid ing to be a policy for seven years, was tendered by the plaintiff and his deceased partner, that in evidence to support the plaintiff's case, and this action was brought. In order to support the subscribing witness not being produced, it the plaintiff's case, the letter having been was alleged that he was ill. That excuse, hosproved, the first policy was put in, to which ever, was clearly, insufficient; but it was there was a subscribing witness, who not being further said that this policy was immaterial to in attendance, it was proved he was kept away the case. That question it is unnecessary to by illness, and the policy was read. The se determine : the policy was receiverl, and it is cond policy was then put in, and it appeared impossible to say that it did not influence the that, this had been taken in the names of jury. It does not, however, distinctly appear Barron, Stewart, and Smith, the latter having that leave was reserved biy the learned judge been taken into the firm after the authority to enter a nonsuit on this point; and it theregiyen ly the defendant. It was objected that fore becomes necessary to consider the second this policy was not warranted by the authority, question, which is this : it appearing that a and iberefore that the plaintiff could not re-policy is executed of a different description cover for payınents made in respect of it. froin that for whicb the original authority was

Watson shiewed cause, and contended that, given, was that in law authorized by the defenas to the reception of the first policy in evi- dant? for if not, the money was not paid on dence, it was iinmaterial, the action not having account of the defendant. been brought in respect of it. As to the other that the letter would authorize the agents point, the plaintiff and Stewart were requested to give the name of a different person as the to pay the premiuins on the first policy, and person insured, and on that ground call upon the second was granted on the surrender of the the office to pay in tlie event of Iris death? first; the policy was, at all events, on the life If we could not, it seems in this case that of the defendant, It was immaterial in whose there was no authority to effect the present name the policy, was effected; the object of it policy; and it does not seein to have been was simply to secure a debt due to the firin, adopted or recognized in any subsequent corand to re-assign it to the defendant when that respondence between the parties ; but it is debt was satisfied. Suppose the insurance had said, that if a policy was authorized by the not been kept up, and an action, had been defendant, any names iniglit be used as the brought by the defendant, the dainages must agents; and that the defendant could not be have fallen on the firm. The policy was re. prejudiced by it. Is that clear? The case of newed in names which effectuated the object death bas already been put: so the case of a of the defendaui's, order, and that was done release, and many others might be given. It with the money of the tivo partners. The jury secms to me that there was no execution of by their verdict bave found the authority to the authority in terins or by constructiun. wake the payments.

Erskine, J.-I aim of the saine opinion. It Bompas, Serjt., Kelly and Petersdorf, in inay be said that the production of the support of the rule. This is not a question of first policy was not necessary, but it does agency, but of interest. Stewart and Barron were interested in the first policy, the debt a 7 B. & C. 284. b. 3 T. Rep. 762.

Could we say


New Rule in the Common Law Courts. - Editor's Letter Box.

not therefore follow that it did not_in- | in which the amount for which the judgment Auence the jury: On the second point, I am has been given is less than the amount of of opinion that tbere was no authority to effect the sum of money really due and secured this policy in the name of Sinith. It is said that the defendant could not be prejudiced. I by the penalty and the damages and costs think he might. I will put only one case: if an recovered, and the interest thereon calcuaction were brought by the plaintiffs for this lated as aforesaid, it shall be stated in the money against the executors of the defendant, body of the writ, that the sheriff is to levy they could not set off any money which might interest at the rate of four pounds per cenbe in the hands of Smith.

tum per annum from the day of Maule, J.-On the first point, the document and on the back, or at the foot of the writ, which was put in, had a strong bearing in the there shall be a memorandum as above diplaintiff's favor. Its being necessary or not is no test or criterion whether it was properly rected; and, that in the case of an assessadmitted or not the plaintiff chose, at all ment of further damages under a writ of events, to put it in. Besides, it is clear that scire facias pursuant to the statute of 8 & 9 it was the duty of the plaintiff to produce the William 3, it shall be stated in the body of policy, and shew that it was executed. On the writ of execution, that the sheriff is to the other point, I think that it is elear that the levy interest on the damages assessed and money was not paid under the authority of the costs taxed in that beha letter of 26th April, 1832. The provision was

at the rate of four for the benefit of Barron and Stewart. It might (pounds per centum per annum from the day not perhaps be necessary to construe it strictly on which execution was awarded, unless or literally. I should have been disposed to execution was awarded before the first of have given it a construction that would have October, 1838, and in that case from that justified any, names bring introduced that day :—BUT IT IS FURTHER ORDERED, that were for the benefit of Barron and Stewart, if that could be done in such a way as to make any variance not being in matter of subno difference to the defendant. That was not stance, shall not affect the validity of the the case here. The new name introduced writs sued out. might have varied the defendant's situation [The forms of the writs will be given in altogether.

the next number.] Rule discharged.-Barron, surviving partner of Stewart, v. Fitzgerald, H. T. 1840. C. P.



The only important alteration in our List of COURTS.

Law Bills since last week, is, that a bill is to be brought in "to give summary protection to

persons employed in the publication of ParFORMS OF WRITS OF CA. SA.

liamentary Papers.” Hilary Term, 3d Victoria, 1840.

The Questions at the Winter Examination

in the Faculty of Laws at University College, IT IS ORDERED, That the following forms of London, will probably be inserted in our next writs, framed by the Judges pursuant to the Number. statute 1 & 2 Victoria, c. 110, s. 20, be

The letter of "A London Attorney” shall used from and after the first day of next

be inserted. Easter term , in the cases to which they are

We are informed that in our List of Barris.

ters called for Hilary Term, 1840, we have applicable, with such alterations as the na- omitted the name of Henry Villiers Billing, ture of the action, the description of the hurst Taylor. This gentleman was called Court in which the action is depending, the by the Middle Temple on the 17th January, character of the parties, or the circumstances 1840; and Mr. Winsor was called on the 24th. of the case may render necessary; and that A correspondent inquires whether it is the in all cases in which the judgment is for a practice of country solicitors to pay their penalty and the plaintiff seeks to obtain in clerks the commissioners' fee of 136. 4d. upon

taking chancery answers, whenever they are terest, there shall be a memorandum on the

named in a commission, and if not, why not? back, or at the foot of the writ, directing The valuable communication of “ Ebor" is the sheriff to levy the amount of the sum of printed, and shall speedily be inserted. money really due and secured by the penalty, Erratum.-p. 301, as to the power of Judges and of the damages and costs recovered, and to stay proceedings, for "now" read “00." interest thereon at the rate of four pounds per centum per annum from the time when

Several Numbers of this work having been the judgment was entered up, or if it was

reprinted, imperfect sets may at present be entered up before the first of October, 1838, our publisher for any of the following Num.

completed.—The full price will be given by then from that day; and, that in the cases bers, viz, 338, 340, 341, 397.

The Legal observer,


Quod magis ad nos
Portinet, el riescire alam est, agitamus.



It recites that it is essential to the due

and effectual exercise of the functions and We have hitherto abstained from taking Juties of parliament, and to the promotion any active part in the discussion which has of wise legislation, that no obstructions now occupied so much of the attention of should exist to the publication of such of the profession and the public for the last its reports, votes, and proceedings, as either three years, with respect to the privileges House of Parliament may deem fit to be of the House of Commons, and we only now published; and it enacts that where any advert to it because it has at last assumed a person is sued or prosecuted civilly or practical form in the shape of the bill criminally for the publication of any report, brought into the House of Commons by votes, or proceedings, under the authority Lord John Russell, “ to give summary pro- of either House of Parliament, such person tection to persons employed in the publica- may leave at the office of the Court wherein tion of parliamentary papers.". In common any such suit or proceeding is commenced, with the great majority of the House of or with the officer whose duty it may be to Commons, we approve of this step, and we sign such judgment, a certificate under the trust that it will lead to a satisfactory ad- hand of the Lord Chancellor, &c. or the justment of the present differences between Speaker of the House of Lords, or the the Courts of Law and the House of Com- Clerk of Parliament, or of the Speaker of mons, which every one must deplore. The the House of Commons, or the Chief Clerk disputed points have been somewhat nar- of the same House, stating that such civil rowed of late. The greatest legal autho- or criminal proceeding is commenced in rerities in the House of Commons, the At. spect of the publication of reports, votes, or torney and Solicitor General, the Lord proceedings, by authority of the House of Advocate, &c. on the one side, and Sir Lords, or of the House of Commons; and William Follett, Sir F. Pollock, and Sir after the delivery of such certificate “no Edward Sugden on the other, are agreed proceeding, writ, or process whatever, shall that in the particular case the publication be had, executed, or prosecuted, in such civil by Messrs. Hansard of the Report of the or criminal proceeding; but the same civil Inspectors of Prisons was justifiable; and or criminal proceeding, writ, and process, should have been privileged; but these whether heretofore commenced, prosecuted latter learned persons have stoutly main or issued, or hereafter to be commenced, &c. tained that the imprisonment of the sheriffs shall be taken to be finally concluded, deterand the legal advisersa of Stockdale was not mined, and superseded." By sect. 2, proso, under the circumstances; and it will be ceedings against persons acting under warconceded by all that nothing but the ex- rants granted by the Speaker of the House treme necessity of the case could justify of Commons during the present session of their detention for one moment. Let us parliament, are stopped ; and by sect. 3, consider, therefore, the remedy proposed the act is not to affect the privileges of by the present bill.


The bill was read a second time on Mon. a See p. 377, post, for a report of the meeting day last, and will pass the House of Comof attorneys.

mons without any serious opposition.

NO. 579.


« EelmineJätka »