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 opiniou of the jury would be asked; rious to the interests of individuals, that I and it is quite obvious that if the act 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 bourd 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 notice. It

terms of the act of parliament, and that it is also extremely inconvenient to all persons with whom the company might deal; and the company must find the power within the act of parliament, or they have no right to it at all. The proceeding before the jury must be consistent with the precept, and the precept must be consistent with the notice."

By the other case, Stone v. The Commer-is obvious that this power is not within the cial Railway Company, it was held that when a company empowered by act of parliament has given notice to an owner of land to treat for the purchase of a part of it, but the owner and the company cannot agree upon the terms, and the company therefore issues a precept to the sheriff to summon a jury to assess the value, the part of the land which is described in the precept as being that of which they are to assess the value, must be neither more nor less than that for the purchase of which the owner has already been required by the notice to treat. It will be seen, from the following passages in the Lord Chancellor's judgment, that he adhered to the opinion that acts of this nature must be construed strictly :—

PRACTICAL POINTS OF GENERAL
INTEREST.

PUBLIC NEETING.

A CASE has been just reported by Messrs. Carrington and Payne, the marginal note of 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 parties is found only in the acts themselves: putting questions to a speaker, and making 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 hear, 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 parthe injury has been committed. Now Iliament, and have long been exercised with have no doubt that, in this case, the com-impunity; and we had not the slightest pany have not done that which the act re-notion that they involved any question of 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 given it. But the case of which this is the marrow, in the opinion of the reporters, contains some other ponits on the law of public

4 Myl. & C. 122,

451

Practical Points of General Interest.-Power to Mortgage Estates of Infants. 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 in the proceedings. According to the testimony of his own witnesses, when a man who was addressing the meeting said that if a person drank water his nerves would be as hard as iron, and he would be as strong as an elephant, the plaintiff merely said, Yes, as a dead elephant," which created some laughter, and also made some observations which had the effect of interrupting the speaker, and diverting the attention of the meeting from his speech. One of the witnesses said there was no noise, but the questions and answers, and any unpleasantness that arose, was attributable to the intemperance of the defendant in leaving the chair, and going to the plaintiff, and saying that no person should put a question. One of the questions was, What is to be done with the barley? and the answer returned, "Give it to the pigs; they fatten pigs with it in America." This seems to have been considered a proper question; and the defendant having on such provocation given the plaintiff in charge to a policeman, had a verdict against him in an action for false imprisonment, damages 51. Wooding v. Oxley, 9 Car. & P. 1.

66

POWER TO MORTGAGE THE ESTATES OF INFANTS.

It appeared doubtful whether Courts of Equity were empowered to order as well the mortgage, as the sale of real estates, in which infant heirs and devisees were interested. It was obviously desirable, in order to discharge debts, that there should be a power to mortgage, and the want of this power was attended with great inconvenience. Such power was also desirable, where estates were already mortgaged, and the transfer of which might prevent foreclosure, or effect a reduction in the rate of interest. Besides, the necessity to raise money for the payment of debts is frequently temporary, and the accumulations of income sufficient to discharge the incumbrance. A compulsory sale also was often injurious where local advantages to the infant might exist, if the property were retained.

The cases on this point were conflicting. In Holme v. Williams, 8 Sim. 557, which was a creditor's suit, it was said that it would be beneficial to the devisees of the deceased debtor's estates, (some of whom were infants) that the money required for payment of debts should be raised by mortgage instead of sale of the estates; but a doubt was expressed as to whether the Court could, under 11 Geo. 4 and 1 W. 4, c. 47, s. 11, direct the infant devisees to join in conveying the estates to the mortgagee, inasmuch as that act does not, in express terms, authorise the Court to direct infants to convey estates, except where they are decreed to be sold for satisfaction of debts.

By the 1 W. 4, c. 47, s. 11, for "facilitating the payment of debts out of real estates," it is enacted, that where any suit hath been, or shall be instituted in any The Vice Chancellor said that a mortgage Court of Equity for the payment of any 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 their infant heirs or devisees to convey the faction of such debt or debts, and by reason of the infancy of any such heir or heirs, estates to the mortgagee. devisee or devisees, an immediate conveyance thereof cannot, as the law at present stands, be compelled in every such case, such court shall direct, and, if necessary, compel such infant or infants to convey such estates so to be sold, (by all proper assurances in the law) to the purchaser or purchasers thereof, and in such manner as the said

On the other hand, in the case of Smethurst v. Longworth, 2 Keen, 603, it had been ascertained that the personal estate of the deceased was insufficient for the payment of his debts; and an order had been made by the Court for raising the deficiency out of the real estate, which had descended on an infant heir.

452 Chancery Reform.-Objections to Abolishing the Equity Exchequer.-New Books.

The Master, to whom the matter had been referred, reported that it would be for the benefit of the infant, that the money should be raised by a mortgage, but he doubted whether a valid mortgage could be

executed under the above act.

always had, and should have, the election of two distinct jurisdictions. The healthful course of decisions can only be preserved by two or more independent Courts. It therefore appears to me that the Equity Exchequer should be preserved, but under a judge dedicated to 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 the legislature had intended to authorise a mortgage of the infant's estate; and his Lordship referred it back to the Master to inquire what portion of the estate ought to be sold.

66

These doubts and the disadvantages consequent thereon, have been removed by the 2 & 3 Vict. c. 60, which we believe was

suggested to the Lord Chancellor by Mr. Freshfield. That act extends the provisions of the 11 Geo. 4 and 1 W. 4, c. 47, and enables the Court to direct mortgages as well as sales of the estates of infant heirs or devisees, and it directs that the surplus money arising from such sales or mortgages, shall descend in the same manner as the estates so sold or mortgaged would have descended.

CHANCERY REFORM.

THE cause of Chancery Reform, has, we are sorry to say, made no progress since our last. The illness of Lord Lyndhurst, and the absence of Lord Abinger and Lord Brougham, have prevented the discussion of the measure on the second reading of the Lord Chancellor's bill. We see no reason to change the opinion we have expressed, as to the measure, although we regret that the other bill for the reform of the Offices of the Court of Chancery, is not brought in forthwith. We understand that Sir Edward Sugden is engaged in a pamphlet in defence of his resolutions, and are glad of this, as we agree to almost all of them, although we cannot think that they may not be carried in part with advantage.

proceeding, and works well. It is in innumerable instances the unknown and secret protector of many valuable interests, and of great amount of funded property and stock.

Can the public be aware that the proposed new clause (which will, according to modern fashion, abolish the distringas), will have an effect on two thousand millions of property? Such is the amount of the funds, stocks, and shares in public companies. I am no friend to the latter, but I think this clause may give an inquisitorial and galling power over them, and interfere much with the free circulation of companies' shares, and the welfare of public companies. I think, therefore, the distringas should be left to its present practice. Temple, 31st March, 1840.

S. P.

NOTICES OF NEW BOOKS.

Practical Forms and Entries of Proceedings in the Courts of Queen's Bench, Common Pleas, and Exchequer of Pleas. By Wm. Tidd, Esq. London: Saunders & Benning, 1840.

We noticed in a former number of the present volume, (p. 280) the first part of Mr. Tidd's new edition of Practical Forms and Entries. He has just published the concluding part, comprising several additional chapters, with an index, preface, and introduction. The index is very full and minute, and a model for imitation in all practical works requiring frequent and easy reference. The introduction comprises a general view of the proceedings in personal actions, but does not show the recent alterations. These however may be gathered from the preface, and the following summary of the various statutes and rules of Court there given may be useful to our readers :

"The principal statutes, by which these alOBJECTIONS TO ABOLISHING THE terations and improvements were made, are

EQUITY EXCHEQUER.

Mr. Editor

I BEG leave to make a few observations on the proposed Chancery Bill.

I am persuaded it is very unwise to abolish the Equity Exchequer, reducing all equity questions to one Court, substantially under one head-the Lord Chancellor, who presides also in the House of Lords. The subject has

first, the 11 Geo. 4, and 1 W. 4, c. 70, for the more effectual administration of justice in England and Wales;' usually called the Administration of Justice act: 2dly, the 1 W. 4, c. 7, for the more speedy judgment and execution, in actions brought in the Courts of law at Westminster,' &c.: 3dly, the 1 W. 4, c. 22, 'to enable Courts of law to order the examination of witnesses upon interrogatories, and otherwise: 4thly, the 1 & 2 W. 4, c. 58,

Notices of New Books: Tidd's Practical Forms.

453

to enable Courts of law to give relief against |lated to settle and improve the practice of the adverse claims, made 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 process in civil actions, except in certain cases; for extending the remedies of creditors against the property of debtors; and for amending the laws for the relief of insolvent debtors in Eng-cessary or proper. land.'

"The principal rules of Court, affecting the practical forms and entries of proceedings in the Superior Courts, are 1st, the rules in the Exchequer of Pleas, of Michaelmas Term, 1 W. IV.-1830; 2dly, the rules in all the courts, of Trinity Term, 1 W. IV.-1831, and Hilary Term, 2 W. IV., 1832; 3dly, the rules of Michaelmas Term, 3 W. IV.-1832; and 4thly, the rules of Hilary Term, 4 W. IV.-1834, and Trinity Term, 1 Vict. 1838. The rules of the Court of Exchequer were principally occasioned by the opening of that Court, and admitting attornies of the Courts of King's Bench and Common Pleas to practise therein, under the 10th section of the Administration of Justice Act, and by the transfer of suits of law thereto, under the 14th section of that act, from the Courts of Session of Chester, and Great Sessions in Wales and they may be accordingly classed under three heads; first, respecting of ficers of the Courts, and their fees; secondly, points of practice, relating to matters over which that Court has a peculiar jurisdiction; and thirdly, the times and modes of proceeding in that Court, on the removal of causes from Chester and Wales.

thereof, and for fixing the costs to be allowed for and in respect of the matters therein contained, and the performance thereof, as in their judgment and discretion shall be deemed ne

"The rules of Hilary, 4 W. IV, consist of rules of pleading, as well as of practice. The former were made in pursuance of the Law Amendment Act, (3 & 4 W. IV, c. 42, s. 1) by which the Judges of the Superior Courts of Common Law at Westminster, or any eight or more of them, of whom the chiefs of each of the said Courts shall be three, are authorised, by any rule or order to be by them made, in term or vacation, to make such alterations in the mode of pleading in the said Courts, and in the mode of entering and transcribing pleadings, judgments, and other proceedings, in actions at law, and such regulations as to the payment of costs and otherwise, for carrying into effect the said alterations, as to them may seem expedient: These rules consist first, of general rules and regulations, applicable to all pleadings; and secondly, of such as relate to pleadings in the actions of assumpsit, covenant, debt, detinue, case, and trespass, only: The practical rules chiefly relate to demurrers, and proceedings in error; and contain provisions respecting the admission of written documents. The rules of Trinity, 1 Vict., which were also made in pursuance of the power given to the Judges by the Law Amendment Act, chiefly relate to the payment of money into Court; the mode of pleading the general issue; and the necessity of pleading payment, or giving it in evidence in reduction of damages.

"By the foregoing statutes and rules of Court, many of the practical forms, and entries of proceedings, in the Superior Courts were abolished, or rendered obsolete, and others materially altered in addition to which, some new forms and entries were framed by the legislature and the Judges, to give effect to the

"The rules of Trinity, 1 W. IV, and Hilary, 2 W. IV, are founded on the 11th section of the Administration of Justice Act, by which it is enacted, that 'in all cases relating to the practice of the Superior Courts, in matters over which they have a common jurisdiction, it shall be lawful for the Judges of the said Courts jointly, or any eight or more of them, including the chiefs of each Court, to make general rules and orders, for regulating the proceedings of all the said Courts.' The rules of Trinity, I 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 assumpsit Exchequer of Chester, and of Great Sessions or debt, on bills of exchange or promissory notes, in Wales, being abolished by the Administraand the common 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 unment; the time for pleading; rules to plead seve- necessary, have been also abolished; others, ral matters; and judgment of non pros, &c. The which were formerly 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 hundred and ten 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 found to con- solute in the first instance. The old forms of tain many very important regulations, calcu-process, for bringing the defendant into Court

454

Notices of New Books.-Progress of Legal Education in Ireland.

being abolished by the Uniformity of Process Act, new forms were substituted by the legislature in lieu thereof, which are contained in a schedule annexed to that act: and the rules of Michaelmas, 3 W. IV, which were made in pursuance thereof, contain forms, framed by the Judges, as to the mode of entitling and commencing declarations, and also writs of

distringas and capias to the county palatine of Lancaster and there is a schedule annexed to the rules of Trinity, 1 W. IV, containing forms of counts in declarations on promissory notes and bills of exchange, &c. and directions respecting them.

"In the pleading rules of Hilary, 4 W. 4, reg. 17, there is the form of a plea of payment of money into court; which rule is repealed

may from time to time wander far away from the subject: but in order to form an abstract of an important doctrine or decision, or point of practice, the student must necessarily inake himself master of it; and this is the very object which is sought to be obtained.”

The book is very well "got up,” and we have no doubt the student who diligently uses it will have reason to rejoice in his labours. We recommend the publisher to interleave the Index, as some of the heads of reference will require more space than the printed pages afford.

IN IRELAND.

OUR attention has recently been directed to the progress of legal education in the sister kingdom. It appears that Lord Morpeth, as secretary for Ireland, was waited upon by Mr. Tristram Kennedy, the principal, and a deputation, from the Dublin Law Institute, accompa nied by several members of the House of Commons, identified with the advancement of legal education, and the cultivation of professional studies, amongst whom was Mr. Wyse, chairman of the Select Committee on Education in Ireland, Mr. Lynch, Mr. Tennent, Mr. Serjeant Curry, and several other members.

by the rule of Trinity, I Viet. and another PROGRESS OF LEGAL EDUCATION form given in lieu thereof; and in the schedule annexed to the Law Amendment Act, there are forms of issues, judgments, and other proceedings, in actions commenced by process under the Uniformity of Process Act; and the form of a general notice, requiring the adverse party to admit the execution of documents specified in the schedule: And lastly, it having been enacted by the statute 1 & 2 Vict. c. 110, s. 20, that "such new or altered writs shall be sued out of the courts of law, &c., as may by such courts be deemed necessary or expedient for giving effect to the provisions thereinbefore contained, and in such forms as the judges thereof shall from time to time think fit to order;" forms of writs were framed by the judges, in pursuance thereof, in Hilary Term 1839, and Hilary Term 1840, of writs of clegit, fieri facias, and capias ad satisfaciendum; on judgments and orders of superior and inferior

courts."

Mr. Wyse called the attention of Lord Morpeth to the total want of system in legal education which existed in Ireland up to 1838, the only country in Europe, so circumstanced, at the period the Select Committee on education made their report. He also called to his lordship's recollection the recommendation of that committee for the establishment and maintenance of a law school in Ireland, in order to meet a deficiency so generally adReading and Practice. London: E. Spet-mitted to exist, observing that the only tigue.

The Lawyer's Common Place Book, with an
Alphabetical Index of upwards of Seven

Hundred Heads which occur in General

THE utility of this work is shewn by the following quotation from "The Articled Clerk's Manual :".

"We think a Common-place Book is an essential appurtenant of the student; of what its contents should consist there may be different opinions. The following, it is hoped, may furnish some hint, and be capable of improve

ment.

attempt which had been made upon the suggestion of the committee originated in the founders of the Dublin Law Institute, an establishment now in active operation under the sanction of the most distinguished members of the Irish Bar, affording preparatory and practical instruction in detail to eight classes of students, under the regular and immediate direction of four highly approved professors 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, or the importance of which turns upon the precise words used. In all other cases the passage should be either abridged or referred to, and not transcribed. It is manifestly of the greatest use to know readily where to find what we require, instead of recommencing the search for it. The principal rule will be to condense as much as possible. For this purpose the attention will be especially aroused. It may be argued, that merely to copy is somewhat of a mechanical operation, and the mind

being to obtain a charter of incorporation for the institution, in order to perpetuate a system of legal education in Ireland, he felt confident no objection could be offered-more particularly as it was not the desire of those who sought the charter to render attendance imperative at this school in order to entitle the student to admission into either branch of the profession,-leaving such attendance perfectly voluntary on the part of the student.

Lord Morpeth expressed his opinion to be most favourable to the views and objects of