Superior Courts: Lord Chancellor's Court; Queen's Bench. creating any trust. The general rule was, that where a woman has moveable property over which she has absolute power of disposing, that property becomes the husband's by the marriage. With respect to leaseholds and choses in action belonging to the wife, the husband acquires, by the marriage, not the immediate possession of them, but a capacity to reduce them into possession. In Anderson v. Anderson,g a case in some respects like the present, the wife's separate estate was held to be confined to the leasehold property, and not to include the furniture and other effects in the house, although they had been purchased by the wife out of the bequest to her to her separate use before her marriage. (The learned counsel upon reading the report, adinitted that the case was not so much in favor of his argument as he had supposed, but he submitted that it was not against him.) In the present case, the husband appeared to the world to be the owner of the house and furniture; he dwelt in it with his wife, and was complete master of it, to all appearance. The sheriff had not any notice of a trust for the wife when he took the goods in execution under the other defendant's judgment. The Lord Chancellor.-Judgment and execution do not bind trust property, and there are numerous cases in bankruptcy where they have no such effect. Mr. Bethell.-Though not in bankruptcy, yet generally they were allowed to have a binding effect. If the doctrine of protecting trust property was to be extended to concealed trusts between husband and wife, it would open a wide door to fraud, for which such facility would be afforded in cases where no trustees are interposed. The Lord Chancellor.-As to concealment, the same might happen even where there are trustees; the creditors could not or might not know of the trust. I do not know what case may be made at the hearing of the cause, but it appears to me at present, according to the doctrine laid down in Tullett v. Armstrong, that this is a trust for the wife's separate use. The principle of my decision there was, that any man marrying a woman having property to her separate use, and no settlement being trade of it, must take it as he finds it; that a trust for the wife's separate use attaches on it on the marriage, and continues during the coverture. If this plaintiff had been married before the testator's death, the husband clearly could not take the property, but whether any act was done by the wife before the marriage to give the property to the husband, was another matter, which would appear at the hearing, depending also on the settlement that was executed. Mr. Bethell. That settlement gave nothing to the wife that she had not before; but it gave the husband an interest in 60007. bank stock, part of the property left to the lady, and it was silent as to the rest. The wife might at any time transfer any part of the property to her husband. The moveable property required no 2 Myl. & K. 427. 365 act of the wife to give it, for marriage gives it. In this and other points of view, this case was distinguishable from that of Tullett v. Armstrong. Mr. Paynter for the sheriff, said he was ready to submit to any order the Court would be pleased to make. The Lord Chancellor.-The principle is, that when property is given to a woman for her separate use, upon her subsequent marriage, a trust attaches on that property for her use during the coverture. At present, he could not say whether such was the case here, but he suggested an inquiry before the master to ascertain how much, if any, of the property seized by the sheriff and now in his possession, was the property left to the plaintiff by her father's will, and also (on Mr. Wigram's suggestion,) how much of it was purchased by the wife by the property so left to her. Mr. Wigram-And the sheriff ought to withdraw, as the leasehold houses are ample security for the debt, and it is not likely the plaintiff will remove the property, or any part of it, during the proposed inquiry. According to the evidence now before the Court, all the property was the wife's. The Lord Chancellor.-I cannot remove the sheriff's officer, nor say this is the wife's property. That is the subject for inquiry before the master. Mr. Wigram.—We are ready to give a charge on the whole of the property, for so much as may be found by the master not to be the trust property of the wife. The Lord Chancellor.-I cannot vary the former order. The security must be for all that the judgment creditor and the sheriff may be entitled to,-the costs to be reserved to the hearing. Newlands v. Holmes and Paynter, Sittings at Lincoln's Inn, February 28th, 1840. Queen's Bench. POOR LAWS. The Poor Law Commissioners have no au- . thority to issue to an incorporated union, formed under Gilbert's Act, an order, parts of which impose new duties on one of the officers of the union, and thus occasion a necessity for a new salary to be granted to him; and such order being bad as to purt, and being an entire order, is bad as to the whole, and must be quashed. In this case a certiorari had been applied for to bring up an order of the Poor Law Commissioners, dated on the 13th of March, 1837, in order to quash the same, on the ground that it contained directions which the Commissioners had no right to give. The parts specially objected to were as follow: "Besides the performance of the duties herein specified, with relation to the accounts of the incorporation, and the general observance and execution of all lawful orders, regu h See p. 125, ante. 366 Superior Courts: Queen's Bench: Common Pleas. lations, and instructions of the Poor Law Commissioners, and the guardians, the following shall be the particular duties of the several paid officers enumerated :" "The following shall be the duties of the clerk :" "To prepare or superintend the preparation, and take measures for ensuring the prompt and correct return of all such statistical information and reports as may be required for the public service." "The pauper description book, which shall contain a statement of the names and description of all paupers in the incorporation, arranged according to their respective parishes; and particulars respecting them, according to the headings of the several columns in form numbered 9, that is to say, &c." The case was argued some time since, and the Court took time to consider the judgment. The facts of the case, and the arguments, are sufficiently referred to in the judgment. Lord Denman delivered judgment in this case. This corporation, which was a unicn of parishes for the relief of the poor, was formed under the 22 G. 3, c. 83; and the question here is, as to the authority of an order issued by the Poor Law Commissioners with respect to the corporation. It was said in the argument here, that the Poor Law Amendment Act expressly saved Gilbert's Act in all matters in which the regulations of the latter were not specifically altered by the former. Under Gilbert's Act the overseer is to pay from time to time to the treasurer of the united parishes, their due proportion and quota of the several expences attending the poor therein. The treasurer under that act is to disburse the money under the orders of the guardians, and the visitor is to examine and pass the accounts after they have been verified on oath by a justice of the peace; and he shall settle the accounts between the guardians and the treasurer if any dispute shall arise respecting the same. These are the provisions made under that act for the duty of auditing the accounts, and we cannot but think that the expenditure under such provisions might be inadequately watched. For under the provision respecting the settlement of the acoounts between the guardians and the treasurer, if any dispute shall arise respecting the same, it is clear that so long as no dispute arises-so long as the guardians and treasurer are agreed, the visitor has no right to interfere. And even when he does interfere in the case of a dispute between them, it does not appear that he has a right to do more than to ascertain the amount, and accurately settle the sum in dispute. So that he does not appear under that act to have any 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 under that act to regulate the charges upon the funds of the parish, it seems to be admitted that a necessity has arisen for an inspection and auditing of the parish accounts in such a imanner as the visitor under that act had no right to make. If, therefore, the Poor Law Commissioners had a right to appoint, as they have, an inspector, they had no right to appoint him for the purpose, among other things, of inspecting the accounts. There is nothing in such a right of appointment inconsistent with the provisions of Gilbert's Act. The guardians are indeed subjected to a new control, but that arises from the declared necessity of auditing the accounts. The visitor may discharge his duties under the old act, but the auditor is specially appointed by the new act to perform duties of a new, but not of an inconsistent kind. The order of the Poor Law Commissioners is therefore free from objection on this head. Then it is stated to be necessary to have the assistance of an intelligent clerk, to do what the commissioners require. The treasurer now performs all the duties at present required in that office. His duties under Gilbert's Act were confined to the receipt and expenditure of money; and some notion may be formed of the limited nature of those duties, when we recolloct that his salary is fixed by the 12th section of that act, to the small sum of 107. per annum. The commissioners may, no doubt, appoint an auditor to perform, in a better manner, the old duties of the visitor, but by their order other duties are now imposed upon him-duties which appear to us to go beyond the limits of the power of the Poor Law Commissioners under the recent act; and it is not suggested that they derive any authority in this matter from any other source. It may be very proper to take measures to ensure correct returns of all such statistical reports as the commissioners may deem it requisite to possess for the public service. This may be a very desirable matter, but this new labour must be paid for: that, therefore, would be a new expeuce, and the commissioners have no right to impose such new expense on a parish; and the benefit is too remote to be considered as rendering the matter as one within their juris. diction, as coming within the necessary regulations for the adininistration of relief to the poor. That part of the order, therefore, (and the order is entire) is, in our opinion, beyond the power of the commissioners to make, and the order itself cannot consequently be supported, because, being an entire order, and one part be ing bad, the whole becomes invalid. We have pointed out all these matters in order to show how far their authority can be legally and properly exercised without inconvenience. It does so happen here that in this particular case their authority has been exceeded. 'The order, therefore, must be quashed. The Queen v. The Poor Law Commissioners, H. T. 1840. Q. B. F. J. in the matter of the Allstonefield Incorporation, Common Pleas. EXECUTION OF POWER. POLICY OF INSU- Directions from an assured to two persons to Superior Courts: Common Pleas. 367 not authorize them to effect it in their own | being due to them; it was therefore necessary to produce the first policy, and that has not been properly proved. On the second point, however, the defendant is clearly entitled to a nonsuit. They effect a policy in their own names and in the name of a stranger to the defendant. All authorities should be strictly pursued, Com. Dig. Attorney, c. 11, 13. This plaintiff has exceeded it. Attwood v. Mannings, and Fenn v. Harrison, are decisive in favour of the defendant. Suppose the defendant's executor were sued for the debt, would payment to Smith be an answer? or, suppose Smith released the debt. name and that of another, so as to charge the assured with the premium paid. Watson shewed cause against a rule nisi obtained by Kelly for a nonsuit. It was an action of assumpsit for money paid, and on an aecount stated, to which the defendant pleaded non-assumpsit. It appeared from the affidavits that the plaintiff and his deceased part-is an authority to do a particular act, and the ner Stewart, had been navy agents, and in that capacity had been employed by the defendant. On the 26th April, 1832, the defendant being indebted to the plaintiff and Stewart, wrote them a letter, in which, after stating that he had appeared before the directors of a life assurance office, he went on to say, "I request that you will effect an insurance on my life for 2007., for seven years, and continue the payment of the premiums, as this insurance is for the purpose of securing my debt to you, you may have it effected in your own names, and it may be assigned to me in the event of your debt being satisfied." It appeared, further, that in pursuance of the above instructions, a policy was effected on the defendant's life, which having been allowed to expire at the end of two years, was renewed in 1834 for the residue of the seven years; and it was for the premiums on this policy, which had been paid by the plaintiff and his deceased partner, that this action was brought. In order to support the plaintiff's case, the letter having been proved, the first policy was put in, to which there was a subscribing witness, who not being in attendance, it was proved he was kept away by illness, and the policy was read. The second policy was then put in, and it appeared that this had been taken in the names of Barron, Stewart, and Smith, the latter having been taken into the firm after the authority given by the defendant. It was objected that this policy was not warranted by the authority, and therefore that the plaintiff could not recover for payments made in respect of it. Watson shewed cause, and contended that, as to the reception of the first policy in evidence, it was inmaterial, the action not having been brought in respect of it. As to the other point, the plaintiff and Stewart were requested to pay the premiums on the first policy, and the second was granted on the surrender of the first; the policy was, at all events, on the life of the defendant, It was immaterial in whose name the policy was effected; the object of it was simply to secure a debt due to the firm, and to re-assign it to the defendant when that debt was satisfied. Suppose the insurance had not been kept, up, and an action had been brought by the defendant, the damages must have fallen on the firm. The policy was renewed in names which effectuated the object of the defendant's order, and that was done with the money of the two partners. The jury by their verdict have found the authority to make the payments. Bompas, Serjt., Kelly and Petersdorff, in support of the rule. This is not a question of agency, but of interest. Stewart and Barron were interested in the first policy, the debt Bosanquet, J.-This is an action by a surviving partner, for premiums paid on a policy, which, it is alleged, was effected by the defendant's authority; the defendant authorized his agents to effect a policy in their own names for seven years. This policy is effected accordingly. At the end of two years it is suffered to lapse; in the mean time a new partner is taken in, and another policy is effected for the remaining portion of the time. The action is then brought for the premiums on the second policy, which was effected in the names of Barron, Stewart and Smart. A paper purporting to be a policy for seven years, was tendered in evidence to support the plaintiff's case, and the subscribing witness not being produced, it was alleged that he was ill. That excuse, however, was clearly insufficient; but it was further said that this policy was immaterial to the case. That question it is unnecessary to determine: the policy was received, and it is impossible to say that it did not influence the jury. It does not, however, distinctly appear that leave was reserved by the learned judge to enter a nonsuit on this point; and it therefore becomes necessary to consider the second question, which is this: it appearing that a policy is executed of a different description from that for which the original authority was given, was that in law authorized by the defendant? for if not, the money was not paid on account of the defendant. Could we say that the letter would authorize the agents to give the name of a different person as the person insured, and on that ground call upon the office to pay in the event of his death? If we could not, it seems in this case that there was no authority to effect the present policy; and it does not seem to have been adopted or recognized in any subsequent correspondence between the parties; but it is said, that if a policy was authorized by the defendant, any names might be used as the agents; and that the defendant could not be prejudiced by it. Is that clear? The case of death has already been put: so the case of a release, and many others might be given. It seems to me that there was no execution of the authority in terms or by construction. Erskine, J.-I ain of the same opinion. It may be said that the production of the first policy was not necessary, but it does b. 3 T. Rep. 762. a 7 B. & C. 284. 368 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 fluence the jury. On the second point, I am of opinion that there was no authority to effect this policy in the name of Sinith. It is said that the defendant could not be prejudiced. I think he might. I will put only one case: if an action were brought by the plaintiffs for this money against the executors of the defendant, they could not set off any money which might be in the hands of Smith. Maule, J.-On the first point, the document which was put in, had a strong bearing in the plaintiff's favor. Its being necessary or not is no test or criterion whether it was properly admitted or not the plaintiff chose, at all events, to put it in. Besides, it is clear that it was the duty of the plaintiff to produce the policy, and shew that it was executed. On the other point, I think that it is clear that the money was not paid under the authority of the letter of 26th April, 1832. The provision was for the benefit of Barron and Stewart. It might not perhaps be necessary to construe it strictly or literally. I should have been disposed to have given it a construction that would have justified any names being introduced that were for the benefit of Barron and Stewart, if that could be done in such a way as to make no difference to the defendant. That was not the case here. The new name introduced might have varied the defendant's situation altogether. Rule discharged.-Barron, surviving partner of Stewart, v. Fitzgerald, H. T. 1840. C. P. NEW RULE IN THE COMMON LAW FORMS OF WRITS OF CA. SA. Hilary Term, 3d Victoria, 1840. IT IS ORDERED, That the following forms of writs, framed by the Judges pursuant to the statute 1 & 2 Victoria, c. 110, s. 20, be used from and after the first day of next Easter term, in the cases to which they are applicable, with such alterations as the nature of the action, the description of the Court in which the action is depending, the character of the parties, or the circumstances of the case may render necessary; and that in all cases in which the judgment is for a penalty and the plaintiff seeks to obtain interest, there shall be a memorandum on the back, or at the foot of the writ, directing the sheriff to levy the amount of the sum of money really due and secured by the penalty, and of the damages and costs recovered, and interest thereon at the rate of four pounds per centum per annum from the time when the judgment was entered up, or if it was entered up before the first of October, 1838, then from that day; and, that in the cases has been given is less than the amount of rected; and, that in the case of an assess- [The forms of the writs will be given in the next number.] THE EDITOR'S LETTER BOX. The only important alteration in our List of 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 Parliamentary Papers." The Questions at the Winter Examination in the Faculty of Laws at University College, London, will probably be inserted in our next Number. The letter of "A London Attorney" shall be inserted. ters called for Hilary Term, 1840, we have We are informed that in our List of Barrisomitted the name of Henry Villiers Billinghurst Taylor. This gentleman was called by the Middle Temple on the 17th January, 1840; and Mr. Winsor was called on the 24th. A correspondent inquires whether it is the practice of country solicitors to pay their clerks the commissioners' fee of 13s. 4d. upon named in a commission, and if not, why not? taking chancery answers, whenever they are The valuable communication of "Ebor" is printed, and shall speedily be inserted. Erratum. p. 301, as to the power of Judges to stay proceedings, for "now" read "no." Several Numbers of this work having been reprinted, imperfect sets may at present be our publisher for any of the following Num. completed. The full price will be given by bers, viz. 338, 340, 341, 397. The Legal Observer. SATURDAY, MARCH 14, 1840. . “Quod magis ad NOS Pertinet, et nescire malum est, agitamus. HORAT. THE PRIVILEGE BILL. We have hitherto abstained from taking any active part in the discussion which has now occupied so much of the attention of the profession and the public for the last three years, with respect to the privileges of the House of Commons, and we only now advert to it because it has at last assumed a practical form in the shape of the bill brought into the House of Commons by Lord John Russell, "to give summary protection to persons employed in the publication of parliamentary papers." In common with the great majority of the House of Commons, we approve of this step, and we trust that it will lead to a satisfactory adjustment of the present differences between the Courts of Law and the House of Commons, which every one must deplore. The disputed points have been somewhat narrowed of late. The greatest legal authorities in the House of Commons, the Attorney and Solicitor General, the Lord Advocate, &c. on the one side, and Sir William Follett, Sir F. Pollock, and Sir Edward Sugden on the other, are agreed that in the particular case the publication by Messrs. Hansard of the Report of the Inspectors of Prisons was justifiable; and should have been privileged; but these latter learned persons have stoutly maintained that the imprisonment of the sheriffs and the legal advisers of Stockdale was not so, under the circumstances; and it will be conceded by all that nothing but the extreme necessity of the case could justify their detention for one moment. Let us consider, therefore, the remedy proposed by the present bill. It recites that it is essential to the due and effectual exercise of the functions and duties of parliament, and to the promotion of wise legislation, that no obstructions should exist to the publication of such of its reports, votes, and proceedings, as either House of Parliament may deem fit to be published; and it enacts that where any person is sued or prosecuted civilly or criminally for the publication of any report, votes, or proceedings, under the authority of either House of Parliament, such person may leave at the office of the Court wherein any such suit or proceeding is commenced, or with the officer whose duty it may be to sign such judgment, a certificate under the hand of the Lord Chancellor, &c. or the Speaker of the House of Lords, or the Clerk of Parliament, or of the Speaker of the House of Commons, or the Chief Clerk of the same House, stating that such civil or criminal proceeding is commenced in respect of the publication of reports, votes, or proceedings, by authority of the House of Lords, or of the House of Commons; and after the delivery of such certificate "no proceeding, writ, or process whatever, shall be had, executed, or prosecuted, in such civil or criminal proceeding; but the same civil or criminal proceeding, writ, and process, whether heretofore commenced, prosecuted or issued, or hereafter to be commenced, &c. shall be taken to be finally concluded, determined, and superseded." By sect. 2, proceedings against persons acting under warrants granted by the Speaker of the House of Commons during the present session of parliament, are stopped; and by sect. 3, the act is not to affect the privileges of parliament. 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. |
