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450 The Law of Joint-Stock Companies.- Practical Points of General Interest. says Lord Cottenham, “these proprietors think I am doing nothing more than the cannot want a slip of twenty or thirty yards, Vice Chancellor has in fact done. The Vice therefore the contest is merely about the Chancellor has prohibited the company from price. At the same time it is extremely proceeding, except with relation to what important to watch over the interests of was included in the notice ; and nobody those whose property is affected by these can, by possibility, find out what was incompanies, to take care that the company cluded in the notice. Nothing can be more shall not in any misrepresentation they may vague.
It is said that in this case no inmake, if they have made any, be permitted convenience would be sustained, because to excrcise powers beyond those which the it has appeared in the course of the disact of parliament gives them, and to keep cussion here in this Court, what part of them most strictly within the powers of the the property the company intended to take; act of parliament. The powers are so large but I apprehend that nobody could tell, be
it may be necessary for the benefit of the fore the discussion, what it was as to which public - but they are so large and so inju- the opinion of the jury would be asked ; rious to the interests of individuals, that I and it is quite obvious that if the aet gives think it is the duty of every Court to keep the company the power of doing what they them most strictly within those powers; were about to do here, they were not boud and if there be any reasonable doubt as to to communicate to their opponents what the extent of their powers, they must go they intended to do; and if so, they might elsewhere and get enlarged powers, but come to the jury, and ask the opinion of they will get none from me by way of con- the jury as to part of the land with respect struction of the act of parliament.” to which the other party had no notiee. It
By the other case, Stone v. The Commer- is obvious that this power is not within the cial Railway Company, e it was beld that terms of the act of parliament, and that it is when a company empowered by act of par- also extremely inconvenient to all persons liament has given notice to an owner of with whom the company might deal; and land to treat for the purchase of a part of it, the company must find the power within but the owner and the company cannot agree the act of parliament, or they have no right upon the terms, and the company there. to it at all. The proceeding before the fore issues a precept to the sheriff to summon jury must be consistent with the precept, a jury to assess the value, the part of the and the precept must be consistent with land which is described in the precept as the notice." being that of wbich they are to assess the value, must be neither more nor less than
PRACTICAL POINTS OF GENERAL that for the purchase of which the owner
INTEREST. has already been required by the notice to treat. It will be seen, from the following passages in the Lord Chancellor's judgment, A case has been just reported by Messrs. that lie adhered to the opinion that acts of Carrington and Payne, the marginal note of this nature must be construed strictly : which is as follows:-" Proof of annoyance
• In considering cases which arise under and disturbance by a person present at a these acts of parliament, the law which is meeting, such as crying ' hear, bear, and to regulate the transactions between the putting questions to a speaker, and making parties is found only in the acts themselves: observations on his statements, will not and the first question to be asked is, whether justify the chairman of the meeting in giving what is intended to be done is in strict con- such person in charge to the police.” With formity with that which the act requires ; deference to the learned reporters, it is for, if not, the Court will not permit the hardly necessary to report this as a new company to deal with the property, and
point of law. The crying “heur, hear,”, leave the parties interested in it to take the and the putting a question, are two of the chance of a decision in their favour after most harmless duties of a member of par. the injury has been committed. Now 1 liament, and have long been exercised with have no doubt that, in this case, the company have not done that which the act re notion that they involved any question of
impunity; and we had not the slightest quires. In the first place, in extending the breach of the peace.
As, however, this injunction, as I am about to do, so as to
point may be new to our readers, we have prevent proceedings under this precept, I
But the case of which this is the
marrow, in the opinion of the reporters, con& 4 l/yl. & C. 122,
tains some other ponits on the law of public
Practical Points of General Interest.- Power to Mortgage Estates of Infants. 451
meetings. “It appeared that the plaintiff, court shall think proper and direct ; and who was a master carpenter, on the evening every such infant shall make such conveyof the 2d of April had been attending a meet- ance accordingly, and every such conveying of a benefit society, which he left about ance shall be as valid and effectual to all nine o'clock, and went to a meeting of a intents and purposes as if such person or temperance society, at which the defendant persons being an infant or infants, was or was chairman. About two hundred persons were at the time of executing the same, of were present.
There was contradictory the full age of twenty-one years. evidence as to what part the plaintiff took It appeared doubtful whether Courts of in the proceedings. Accoraing to the testi- Equity were empowered to order as well mony of his own witnesses, when a man the mortgage, as the sale of real estates, in who was addressing the meeting said that if which infant heirs and devisees were ina person drank water his nerves would be terested. It was obviously desirable, in as hard as iron, and he would be as strong order to discharge debts, that there should as an elephant, the plaintiff merely said, be a power to mortgage, and the want of “Yes, as a dead elephant,” which created this power was attended with great inconsome laughter, and also made some obser- venience. Such power was also desirable, vations which had the effect of interrupting where estates were already mortgaged, and the speaker, and diverting the attention of the transfer of which might prevent forethe meeting from his speech. One of the closure, or effect a reduction in the rate of witnesses said there was no noise, but the interest. Besides, the necessity to raise questions and answers, and any unpleasant- money for the payment of debts is frequently ness that arose, was attributable to the in- temporary, and the accumulations of intemperance of the defendant in leaving the come sufficient to discharge the incumchair, and going to the plaintiff, and saying brance. A compulsory sale also was often that no person should put a question. One injurious where local advantages to the of the questions was, “What is to be done infant might exist, if the property were with the barley ? and the answer returned, retained. “Give it to the pigs ; they fatten pigs with The cases on this point were conflicting. it in America." This seems to have been In Holme v. Williams, 8 Sim. 557, which considered a proper question; and the de- was a creditor's suit, it was said that it would fendant having on such provocation given be beneficial to the devisees of the deceased the plaintiff in charge to a policeman, had debtor's estates, (some of whom were ina verdict against him in an action for false fants) that the money required for payment imprisonment, damages 51. Wooding v. of debts sbould be raised by mortgage inOrley, 9 Car. & P. l.
stead of sale of the estates; but a doubt
was expressed as to whether the Court POWER TO MORTGAGE could, under 11 Geo. 4 and 1 W. 4, c. 47, THE ESTATES OF INFANTS.
s. 11, direct the infant devisees to join in
conveying the estates to the mortgagee, By the 1 W. 4, c. 47, s. 11, for “ facili- inasmuch as that act does not, in express tating the payment of debts out of real terms, authorise the Court to direct infants estates,” it is enacted, that where any suit to convey estates, except where they are hath been, or shall be instituted in any decreed to be sold for satisfaction of debts. Court of Equity for the payment of any
The Vice Chancellor said that a mortgage debts of any person or persons deceased, to was, at law, a conditional sale, and therewhich their heir or heirs, devisee or devisees, fore, he was of opinion that he had jurismay be subject or liable, and such court of diction, under the act, to decree the estates equity shall decree the estates liable to such of deceased debtors to be mortgaged for debts, or any of them, to be sold for satis. satisfaction of their debts, and also to direct faction of such debt or debts, and by reason their infant heirs or devisees to convey the of the infancy of any such heir or heirs, estates to the mortgagee. devisee or devişees, an immediate
On the other hand, in the case of
conveyance thereof cannot, as the law at present stands, Smethurst v. Longworth, 2 Keen, 603, it be compelled in every such case, such court had been ascertained that the personal esshall direct, and, if necessary, compel
tate of the deceased was insufficient for the such infant or infants to convey such estates payment of his debts; and an order had so to be sold, (by all proper assurances in been made by the Court for raising the the law) to the purchaser or purchasers deficiency out of the real estate, which had thereof, and in such manner as the said descended on an infant heir.
452 Chancery Reform.-Objections to Abolishing the Equity Eschequer.-- New Books.
The Master, to whom the matter had | always had, and should have, the election of been referred, reported that it would be for two distinct jurisdictions. The healthful course the benefit of the infant, that the money of decisions can only be preserved by two or should be raised by a mortgage, but he more independent Courts
. It therefore apdoubted whether a valid mortgage could be he preserved, but under a judge dedicated to
pears to me that the Equity Eschequer should executed under the above act.
equity alone. This I am convinced will act The Master of the Rolls was of opinion, well, and much better than one great Court. that the act did not authorise a mortgage; I also object strongly to the abolition of the observing that the words sale or mort-distringas ; it is a most useful and beneficial gage would naturally have occurred, if proceeding, and works well. It is in induwethe legislature had intended to authorise a
rable instances the unknown and secret pro. mortgage of the infant's estate; and his amount of funded property and stock.
tector of many valuable interests, and of great Lordship referred it back to the Master to
Can the public lie aware that the proposed inquire what portion of the estate ought to new clause (which will, according to modern be sold.
fashion, abolish the distringas), will have an These doubts and the disadvantages con effect on two thousand millions of property ? sequent thereon, have been removed by the Such is the amount of the funds, stocks, and 2 & 3 Vict. c. 60, which we believe was the latier, but I think this clause may give an
shares in public companies. I am no frieod to suggested to the Lord Chancellor by Mr. inquisitorial and galling power over them, and Freshfield. That act extends the provisions interfere much with the free circulation of of the 11 Geo. 4 and 1 W. 4, c. 47, and companies' shares, and the welfare of public enables the Court to direct mortgages as companies. I think, therefore, the distringas well as sales of the estates of infant heirs or should be left to its present practice.
S. P. devisees, and it directs that the surplus
Temple, 31st March, 1810. money arising from such sales or mortgages, shall descend in the same manner as the estates so sold or mortgaged would have NOTICES OF NEW BOOKS. descended.
Practical Forms and Entries of Proceedings CHANCERY REFORM.
in the Courts of Queen's Bench, Common
Pleas, and Erchequer of Pleas. By Wm. The cause of Chancery Reform, has, we are
Tidd, Esq. London: Saunders & Ben
ning, 1840. sorry to say, made no progress since our last. The illness of Lord Lyndhurst, and We noticed in a former number of the prethe absence of Lord Abinger and Lord sent volume, (p. 280) the first part of Mr. Brougham, have prevented the discussion of Tidd's new edition of Practical Forms and the measure on the second reading of the Entries. He has just published the conLord Chancellor's bill. We see no reason cluding part, comprising several additional to change the opinion we have expressed, chapters, with an index, preface, and introas to the measure, although we regret that duction. The index is very full and minute, the other bill for the reform of the Offices and a model for imitation in all practical of the Court of Chancery, is not brought in works requiring frequent and easy reference. forthwith. We understand that Sir Edward The introduction comprises a general view Sugden is engaged in a pamphlet in defence of the proceedings in personal actions, but of his resolutions, and are glad of this, as does not show the recent alterations. These we agree to almost all of them, although we however may be gathered from the preface, cannot think that they may not be carried and the following summary of the various in part with advantage.
statutes and rules of Court there given may
be useful to our readers :OBJECTIONS TO ABOLISHING THE terations and iinproveinents were made, are
“The principal statutes, by which these al. EQUITY EXCHEQUER,
first, the 11 Geo. 4, and I W, 4, c. 70, "for
the more effectual administration of justice in Mr. Editor
England and Wales ;' usually called the AdI beg leave to make a few observations on ministration of Justice act: 2dly, the 1 W. 4, the proposed Chancery Bill.
c. 7, 'for the more speedy judgment and I am persuaded it is very unwise to abolish execution, in actions brought in the Courts of the Equity Exchequer, reducing all equity law at Westminster,' &c.: 3dly, the 1 W. 4, questions to one Court, substantially under c. 22, 'to enable Courts of law to order the one head-the Lord Chancellor, who presides examination of witnesses upon interrogatories, also in the House of Lords. The subject has and otherwise : Athly, the 1 & 2 W.4, c. 58,
Notices of New Books : Tidd's Practical Forms.
,'to enable Courts of law to give relief against | lated to settle and improve the practice of the adverse claims, inade upon persons having no Courts, and to render the proceedings therein interest in the subject of such claims;' called more expeditious, and less expensive to the the Interpleader act : 5thly, the 2 W. 4, c. 39, suitors. The rules of Michaelmas, 3 W. IV,
for uniformity of process in personal actions, appear to have been made in pursuance of the in the Courts of law at Westminster :' 6thly, Uniformity of Process Act, 2 W. IV, c. 39, s. 14, the 3 & 4 W. 4, c. 42, 'for the further by which the Judges are authorised and reamendment of the law, and the better advance-quired, from time to time, to make all such ment of justice;' usually called the Law general rules and orders, for the effectual exAmendment act: and lastly, the 1 & 2 Vict. ecution of that act, and of the intent and object c. 110, ‘for abolishing arrest on mesne pro- thereof, and for fixing the costs to be allowed cess in civil actions, except in certain cases; for and in respect of the matters therein confor extending the remedies of creditors against sained, and the performance thereof, as in their the property of debtors; and for amending the judgment and discretion shall be deemed nelaws for the relief of insolvent debtors in Eng- cessary or proper. land.'
“The rules of Hilary, 4 W. IV, consist of “The principal rules of Court, affecting the rules of pleading', as well as of practice. The practical forms and entries of proceedings in former were made in pursuance of the Law the Superior Courts, are 1st, the rules in the Amendment Act, (3 & 4 W. IV, c. 42, s. 1) by Exchequer of Pleas, of Michaelmas Term, 1 W. which the Judges of the Superior Courts of IV.-1830; 2dly, the rules in all the courts, Common Law at Westminster, or any eight or of Trinity Term, 1 W. IV:-1831, and Hilary more of them, of whom the chiefs of each of Term, 2 W. IV., 1832 ; 3dly, the rules of Mis the said Courts shall be three, are authorised, chaelmas Term, 3 W. IV.–1832; and 4thly, by any rule or order to be by them made, in the rules of Hilary Term, 4 W. IV.-1834, and term or vacation, to make such alterations in Trinity Term, 1 Vict. 1838. The rules of the the mode of pleading in the said Courts, and Court of Exchequer were principally occasion in the mode of entering and transcribing pleaded by the opening of that Court, and adınitting ings, judgments, and other proceedings, in acattornies of the Courts of King's Bench and tions at law, and such regulations as to the Common Pleas to practise therein, under the payment of costs and otherwise, for carrying 10th section of the Adıninistration of Justice into effect the said alterations, as to them may Act, and by the transfer of suits of law thereto, seem expedient: These rules consist first, of under the 14th section of that act, from the general rules and regulations, applicable to all Courts of Session of Chester, and Great Ses- pleadings; and secondly, of such as relate to sions in Wales: and they may be accordingly pleadings in the actions of assumpsit, covenant, classed under three heads; first, respecting of debt, detinue, case, and trespass, only: The -ficers of the Courts, and their fees; secondly, practical rules chiefly relate to demurrers, and points of practice, relating to matters over proceedings in error ; and contain provisions which that Court has a peculiar jurisdiction ; respecting the admission of written documents. and thirdly, the times and inodes of proceeding the rules of Trinity, 1 Vict., which were also in that Court, on the removal of causes from made in pursuance of the power given to the Chester and Wales.
Judges by the Law Amendment Act, chiefly rc“ The rules of Trinity, 1 W. IV, and Hilary, late to the payment of money into Court; the 2 W. IV, are founded on the 11th section of mode of pleading the general issue; and the the Administration of Justice Act, by which necessity of pleading payment, or giving it in it is enacted, that in all cases relating to the evidence in reduction of damages. practice of the Superior Courts, in matters “ By the foregoing statutes and rules of over which they have a common jurisdiction, Court, inany of the practical forms, and entries it shall be lawful for the Judges of the said of proceedings, in the Superior Courts were Courts jointly, or any eight or inore of them, abolished, or rendered obsolete, and others including the chiefs of each Court, to make materially altered : in addition to which, some general rules and orders, for regulating the new forms and entries were framed by the leproceedings of all the said Courts." The rules gislature and the Judges, to give effect to the of Trinity, 1 W. IV, chiefly relate to the put various provisions of the statutes and rules beting in and justifying of special bail ; the short- fore mentioned. The Courts of Session and ening of declarations, in actions of ussumpsit Exchequer of Chester, and of Great Sessions or debt, on bills of exchange or promissory notes, in Wales, being abolished by the Administraand the coinmon counts; the delivery of parti- tion of Justice Act, the forms relating to the ticulars of the plaintiff's demand, under those proceedings in those Courts have consequently counts; the time for delivering declarations, de become obsolete. Some rules of the Courts in bene esse, and service of declarations in eject. particular cases, which were considered un. ment; the time for pleading; rules to plead seve- necessary, have been also abolished; others, ral matters ; and judgmento non pros, &c. The which were forinerly drawn up on the signature rules of Hilary, 2 W. IV, may be aptly termed of counsel, may now be obtained on the applithe uniformity of practice rules, there being no cation of the party, or a Judge's order; and less than one hnndred and len of them made several, which were formerly rules nisi in the for the express purpose of rendering the prac- Common Pleas, are directed'in future to be abtice uniform : and they will be fou to con- solute in the first instance. The old forms of tain inany very important regulations, calcu. process, for bringing the defendant into Court
Notices of New Books.- Progress of Legal Education in Ireland. being abolished by the Uniformity of Process may from time to time vander far away from Act, new forms were substituted by the legis- the subject : but in order to form an abstract lature in lieu thereof, which are contained in a of an important doctrine or decision, or point schedule annexed to that act: and the rules of of practice, the student must necessarily inake Michaelmas, 3 W. IV, which were made in himself master of it; and this is the very olject pursuance thereof, contain forms, framed by which is souglit to be obtained." the Judges, as to the mode of entitling and
The book is very well “ got up," and we commencing declarations, and also writs of distringas and capias to the county palatine of have no doubt the student who diligently Lancaster : and there is a schedule annexed uses it will have reason to rejoice in his to the rules of Trinity, 1 W. IV, containing labours. We recommend the publisher to forins of counts in declarations on promissory interleave the Index; as some of the heads notes and bills of exchange, &c. and directions of reference will require more space than respecting them.
the printed pages afford. "In the pleading rules of Hilary, 4 W. 4, reg. 17, there is the forın of a plea of payment of money into court; which rule is repealed by the rule of Trinity, | Vict. and another PROGRESS OF LEGAL EDUCATION forın given in lieu thereof; and in the schedule
IN IRELAND. annexed to the Law Amendinent Act, there are forms of issues, judgments, and other pro: Our attention has recently been directed to ceedings, in actions commenced by process under the Uniformity of Process Act'; and the the progress of legal education in the sister form of a general notice, requiring the adverse kingdom. It appears that Lord Morpeth, as party to admit the execution of documents secretary for Ireland, was waited upon by Mr. specified in the schedule: And lastly, it having Tristraın Kennedy, the principal, and a deputabeen enacted by the statute 1 & 2 Vict. c. 110, tion, from the Dublin Law Institute, accompa8. 20, that “such new or altered writs shall be uied by several members of the House of Com. sued out of the courts of law, &c., as may by mons, identified with the advancement of legal such courts be deemed necessary or expedient education, and the cultivation of professional for giving effect to the provisions thereinbefore studies, amongst whom was Mr. Wyse, chaircontained, and in such forms as the judges man of the Select Committee on Education in thereof shall froin time to time think' fit to Ireland, Mr. Lynch, Mr. Tennent, Mr. Ser. order;" forms of writs were framed by the jeant Curry, and several other members. judges, in pursuance thereof, in Hilary Term Mr. Wyse called the attention of Lord Mor. 1839, and Hilary Term 1840, of writs of clegit, peth to the total want of system in legal edu. fieri facias, and cupias ad satisfaciendum; on cation which existed in Ireland up to 1838, judgments and orders of superior and inférior the only country in Europe, so circumstanced, courts."
al the period the Select Committee on educa
tion made their report. He also called to The Lauyer's Common Place Book, with an bis lordship’s recollection the recommendation
Alphabetical Index of upwards of Seven of that committee for the establishment and Hundred Heads which occur in General maintenance of a law school in Ireland, in Reading and Practice. London: E. Spet-mitted to exist, observing that the only
order to ineet a deficiency so generally adtigue.
attempt which had been made upon the The utility of this work is shewn by the suggestion of the committee originated in the following quotation from “ The Articled
founders of the Dublin Law Sostitute, an es. Clerk's Manual :".
tablishment now in active operation under the
sanction of the most distinguished members of or We think a Common place Book is an es- the Irish Bar, affording preparatory and pracsential appurtenant of the student; of what its tical instruction in detail to eighi classes of contents should consist there inay be different students, under the regular and immediate opinions. The following, it is hoped, inay direction of four highly approved profesfurnish some hint, and be capable of improve- sors and two assistant lecturers. Mr. Wyse
stated to bis Lordship that the object of the “Nothing should be literally extracted ex- deputation, and those who accompanied him, cept a short sentence, which cannot be abridged, being to obtain a charter of incorporation for or the importance of which turns upon the pre- the institution, in order to perpetuate a system cise words used. In all other cases the pas- of legal education in Ireland, he felt confident bage should be either abridged or referred to, no olijection could be offered-more particuand not transcribed. It is manifestly of the larly as it was not the desire of those who greatest use to know readily where to find sought the charter to render attendance im. what we require, instead of recommencing the perative at this school in order to entitle the search for it. The principal rule will be to student to adınission into either branch of the condense as much as possible. For this pur- profession, leaving such attendance perfectly pose the attention will be especially aroused. voluntary on the part of the student. It may be argued, that merely to copy is some- Lord Morpeth expressed his opinion to be what of a inechanical operation, and the mind most favourable to che views and objects of