Page images
PDF
EPUB

Superior Courts : Vice Chancellor ; Queen's Bench.

45 answer, except one suggesting that any further should have forgotten the mass of allidavits he communication should be made through his had taken the trouble to read. solicitor. She wrote to the same effect to the Ex parte Mrs. T., in re the Custody of solicitor, and his answer was that he had no Infants Act.-At Westminster, November 4th instructions in the matter. Before the act and 8th, 1839. under which the petition was presented was passed the petitioner had instituted a suit for

Queen's Bench. conjugal rights in the Ecclesiastical Court.

[Before the Four Judges.j That suit being defended was still pending.

FREEMAN BY BIRTH, -QUO WARRANTO. The petitioner stated that she was labouring under great anxiety of inind respecting her six

The charter of the borough of Maldon granted young children, none of whom she had been the right to the freedom of that borough to permitted to see. The husband was a gentle

different classes of persons, and among man of large fortune, and resided at South

other things, declared, that every daughter gale, where, so late as the 10th of October, he of an admitted freeman should have a right was known to have been. The lady's solicitor

to nominate and appoint her husband a had since made inquiry for him, and he could

freeman; and further, that if any daughter nowhere be found. It was supposed be had

of an admitted freeman died leaving her

husband and child or children or any of gone abroad with the children, and the object of this application was to substitute service of

them behind her,he and they should be the petition.

respectively entitled to the freedom of the The Vice Chancellor asked what jurisdiction borough in the same way as if her husband ke had to substitute service?

had been admitted during her life. A, a Mr. Knight Bruce.-The act said nothing

stranger, married the daughter of a freeabout service. The Court might grant the

man-she died before her husband was adorder merely on the petition, although it was

.mitted a freeman-he married again, and consistent with the practice of the Court to

had a son by his second marriage. Held, require service.

that this son was entitled to the freedom by His Honor replied, that to grant an order

birth. er parte would not be doing coinmon justice. This was a proceeding in the nature of a He could readily conceive so gross a case as Quo Warranto, to try by what authority the to require the interference of the Court in that defendant claimed to exercise the privileges of way, but this case did not disclose such cir- a freeman of the borough of Maldon. The cumstances. He should take the affidavits defendant bad pleaded a right to the freedom and read them.

in virtue of his birth, his father having been the The Vice Chancellor, on a subsequent day, husband of the daughter of a freeman. The said there was a preliminary question, whether plea stated in substance, that long before the he had jurisdiction under the recent statute, passing of the statute in the information menupon which subject he would first say a few tioned, (the Municipal Corporation Act) his words. The 53 Geo. 3, c. 24, under which he Majesty Geo. 3 was pleased to grant to the was appointed, required that the Vice Chan- borough of Maldon a charter, which, after cellor should have full power to hear and reciting that the borough was an ancient bodetermine all causes which shall be at any rough, but had then (in 1810) fallen into detime depending in the Court of Chancery in cay, declared that for the purpose of restoring England, &c., or which shall be submitted to the borough to its ancient state, his Majesty the jurisdiction of the said Court, or of the had been graciously pleased to grant it certain Lord Chancellor for the time being, by the rights, liberties, and privileges. The letters special authority of any act of parliament. patent described six classes of persons who Now the doubt which was suggested arose inight be entitled to the freedom of the bofrom the circumstance that the power of the rough. The first class was to corsist “of act, 2 & 3 Vict. c. 54, was given to the Lord every person who had been admitted into Chancellor and the Master of the Rolls, with the freedom of the borough before the corout mentioning the Vice Chancellor. He had poration had fallen into a state of decay.” gone to the fountain head to find out how that The second class “of every person who by was, and he had the very best authority for the usage and custom of the borough would stating that the act, as originally drawn, con- have been entitled by birth and servitude to his tained the words “ The Vice Chancellor,” but admission into the freedom of the borough, that they were afterwards struck out, as being and to be of the commonalty thereof, in virtually comprehended in the words “ The case the corporation had not fallen into decay Lord Chancellor.” He had no doubt, there so as to prevent his obtaining such admisfore, that he had jurisdiction under the Custody sion.” The third class. “Every person who, if of Infants Act.

such last-mentioned persons had been adMr. K. Bruce said there were circumstances mitted unto the freedoin of the borough, would which might render it at present unnecessary by the said usage and custom have derived title for his Honor to give judgment on the point to the same freedom by birth or servitude, hy, whether he would order substituted service of through, or under them, or any of them, in case the petition ; but if it should become neces- the said corporation had not fallen into decay, sary to trouble his Honor on the point, he shall and may within six calendar months from would take care to do so before his flonor the date of these presents, &c.” be admitted.

[blocks in formation]

The fourth class. "All the children or ap- I had not been admitted into the corporation prentices of such persons so admitted by virtue before the corporation fell into decay: that of these presents shall have the same right, he did not fall within the second class, because title, and claim to their freedom, and to the he was not a person who by the usage of the power of conferring the same hereafter, as if borough would have been entitled to be adtheir respective parents or masters had been mitted by birth or servitude: that he did not admitted to their freedom so soon as they fall within the third class, because that referred would have been entitled thereto in case the only to persons who by usage or custom would same corporation had not fallen into decay.” derive their title through those who claimed The fifth class. “Each and every daughter by birth or servitude: and that he did not fall of every person who was heretofore admitted within the fourth class, because he was not the unto the freedom of the said borough, or who child or apprentice of a person who had been shall be duly admitted to the freedom of the admitted under the charter within six months, same by these presents, or, being now deceased, as provided for in the regulations respecting would be entitled to be admitted into the same the third class. if he were now living, shall have the same The case was argned by Mr. Serjeant Steright to nominate and appoint her husband phen, in support of the quo warranto, and by to be a freeman of the said borough as the Mr. Butt for the defendant. The points taken daughters of freemen possessed before the said in argument are fully adverted to in the judgcorporation fell into dissolution and decay.”' ment. The 6th class." And that in all cases in Lord Denman, C. J.-I think that the which a woman, being the daughter of any words of the charter are clear. I shall not person who was duly admitted into the freedom enter into the argument as to what was inof the said borough before the said corporation tended, nor refer to reasons of analogy drawn had fallen into decay, or of any person who by from other parts of the instrument, for I find the usage and custom of the said borough words which shew me that the party is clearly would have been entitled by birth or servitude entitled to the right he claims. He has the to his admission to the freedom thereof, in same right as bis father had conferred on him. case the said corporation had not fallen into That brings us to the question what that right decay, hath been married and hath died before was. I think his right is fully established by the grauting of these our letters patent, leaving the words describing the 6th class. The only her husband and child or children, or any of doubt that was raised in my mind was on the them behind her, or who being now living and words in the fourth clause, which gave the a widow hath a child or children lawfully right of conferring the freedom hereafter ; on begotten, shall respectively have, enjoy, and which it was argued, that if it was intended be entitled to the same rights as he and they that he should have the right complete at the would have been entitled to if such woman time, it would have been so stated. But I had upon her said marriage conferred the free. think that the words “confer the freedom here. dom of the said borough upon her said husband after” do not mean the right of transmitting according to the usage of the said borough, from son to son, but the right of transmitting and her said husband had been thereon duly ad- by marriage. I think that the son here had mitted thereto. And all ancient customs, &c. the same right as if the title had been fully shall be observed.”—Before the grant of the conferred on the father during the wife's life, letters patent, every daughter of a freeman of and he had been duly admitted on such title. the borough could, during her life, confer upon Mr. Justice Patteson.-I am entirely of the her husband the right to the freedom of the same opinion. I was struck in the course of borough, and he would then have a right to be the argument with the construction attempted admitted to the same. The plea stated that to be put, for the prosecution, on the 4th Bunting the elder, before the grant of the clause; and if it was necessary for the defenletters patent, and after the corporation had dant to avail himself of that part of the charter, fallen into decay, was lawfully married to I should probably be of opinion that he could Sarah, the daughter of Isaac Nevitt, who had not do so, because he had not been admitted. been duly admitted a freeman of the borough. But he does not found his claim on that clause, She died, leaving John Bunting the elder, her but on a subsequent one. The words of the husband, her surviving. She had nominated 4th clause, too, appear to me to hear the conhim a freeman, but he had never been admitted struction of relating to the daughters of perto his freedom. After her death her husband sons who have been so admitted, so that the married one Elizabeth Richardson, and the words “confer hereafter” have a full meaning defendant was the son of this second marriage. given to them, without applying them to a case The defendant claimed to be a freeman in like the present. right of his father, in the same way as if his Mr. Justice Williams. I am of the same father had been an admitted freeman of the opinion. What was the object of this charter ? borough. There was a demurrer to the plea, It was to remedy, as much as possible, the deand the question intended to be raised was, cay of the corporation. The plain meaning of whether there was any thing in the charter to the words “any of them,” in the 6th clause, restrain the right of a person so circumstanced. is any husband or any child, &c. The husband,

It was argued for the prosecution that the then, clearly stands in the same predicament father did not fall within the first class of as if he had been admitted in his wife's life. persons mentioned in the charter, because he time.

Superior Courts : Q. B. Practice Court; Common Pleas.

47

[ocr errors]

Mr. Justice Coleridge. - The defendant not been given by plaintiff in the proceedings claimed under his father, J. Bunting, the by scire fucias. The question was, whether elder. Then the question is, in what situation imparlances were abolished in proceedings by the father stood. It seems to me that his case sci. fa. as in ordinary cases. In the case of fell within the words of the 6th clause. His Frean v. Chaplin, 2 Dowl. 523, it was held wife was the daughter of a person entitled to that imparlances were not abolished by the the freedom. She had died before the charter Uniformity of Process Act, but that decision was granted, leaving her husband her survi- was overruled by Wigley v. Tomlins, 3 Dowl. ving ; but then the charter says * leaving 7. It seemed by analogy that the imparlances a husband or child or children or any of were abolished in the case of proceedings by them.” The word “any” here, must apply sci. fa. to the husband as well as to the children. Littledale, J.-I do'nt think the Uniformity She having died, such husband shall have the of Process Act can be considered as applying same right as he would bave had if on her to proceedings by sci. fu. However, you may marriage she had conferred the freedom upon take a rule, as it is fit the question should be bim, and he had been duly adınitted. If the discussed. husband falls within these words, then what is Rule granted.—Doe d. Phillips v. Roe, M. the true construction of them? It is contended T. 1839. Q. B. P. C. that the husband was only intended to enjoy the freedom for his life. I do not see any

Cammon pleas. good ground for such a construction. The

JUDGMENT AGAINST CASUAL EJECTOR. prosecutor is bound to make out that it exists.

In ejectment where there were several co-teThe husband was a freeman of a corporation,

nants, five of whom only had been served, and as he had the same sort of freedom as

the Court refused to grant a rule nisi other persons in the corporation, he was within

against those upon whom no service had the letter and spirit of the charter, and so is been effected, for judgment against the his son. As to the argument of convenience, cusual ejector. I think it is in favour of this claim, for the re

James moved for jndgment against the jection of the claim would go to restrict the freedom to freedom for life, instead of making casual ejector. There were seven tenants, of

He moved that it transmissible: besides which it would create whom five had been served. !wo classes of freemen in the borough, enjoy- there should be a rule nisi against those who ing ditlerent rights, and that would affect the were not served, and a rule absolute against borough in many respects; for instance, in the the rest. He cited Doe dern. Right v. Wrong, taking of apprentices, as one set of masters 2 Chit. Rep. 175; they were not joint-tenants. would be able to confer the freedom, and

Tindal, C. J.-You might turn two persons another would not. Looking, therefore, at

out of possession who never heard of the prothe words and spirit of the act, and at the ceedings. They are not joint tenants, but only

co-tenants. convenience and justice of the case, the con

You may take a rule as against struction clearly demanded seems to me to be five, but not as regards the other two. in favour of the defendant.

Rule accordingly:-Doe dem. Slee v. Roe, Judgment for the defendant.— The Queen M. T. 1839. C. P. v. J. Bunting the younger.

M. T. 1839. Q. B. F. J.

Where, in an application to file the acknowQureu's Bench Practice Court.

ledgement of'u married woman, it duly ap

peared by the certificate that the party was IMPARLANCE.SCIRE FACIAS.- JUDGMENT IN

of full age, but in the affidavit the same fact

was stated, the deponent adding, as he Semble, that imparlances in proceedings by verily believed; " the Court refused to order

sci. fa. are not abolished since the passing the officer to file the acknowledgement, and of the Uniformity of Process Act.

directed the affidavit to be amended. Chilton moved for a rule nisi to rescind an Bere moved that the Court would direct the order made by Mr. Baron Maule, for setting clerk of the enrolments to file the acknowaside a judgment under these circumstances. ledgement of a married woman, under the It was an action of ejectment, aud judgment Fines and Recoveries Act. The certificate was was obtained by the lessor of the plaintiff. This regular, and stated that the married woman, was allowed to remain more than a year without who was in Van Dieman's Land, was of full issuing execution upon it. A scire fucius was age, but in the affidavit it was stated that the then issued on the judgment, and without giving party was of full age, “ as the deponent verily the defendant an imparlance, a writ of habere believed.” It was submitted that this was suffacias possessionem was then issued, and pos. ficient, especially as there was no doubt of the session given to the lessor of the plaintiff. An fact alleged. application was then made to Mr. Baron Tindal, C. J.-You had better supply the Maule, to set aside the judgment so signed, fact in your affidavit, as it is so easy of authenand the writ of possession so executed. His tication Lordship accordingly made an order to that Rule refused.-Re Ann Coverdale, M. T. efect, on the ground that an iinparlance had | 1839. C. P.

FILING ACKNOWLEDGEMENT OF MARRIED WO

MAN.-AFFIDAVIT.

KJECTMENT.WRT OF RESTITUTION.

48 Superior Courts : Common Pleus ; Exchequer of Pleas. The Editor's Letter Bor.

JUDGMENT AGAINST THE CASUAL EJECTOR.

JUDGMENT AS IN CASE OF A NONSUIT.

INSUFFICIENT AFFIDAVIT.EXCUSE.

COPY OF WRIT OF SUMMONS.-INDORSEMENT.

-AMENDMENT.

Erchequer of Pleas. An action of ejectment was brought to recover

possession of a piece of land, taken into a roa:l under the provisions of an act of par- In order to excuse a default in proceeding to liament. A motion having been made for

trial pursuunt to notice, some excuse must judgment against the casual ejector, service

be alleged in shewing cause against the having been effected on the commissioners, in whom the road was vested, the Court

rule for judgment as in case of a nonsuit,

beyond the mere fact of being unprepared refused to grant the rule.

to go to trial. Robinson moved for judgment against the casual ejector. The action of ejectment was judgment as in case of a nonsuit, obtained by

Peacock shewed cause against a rule nisi for brought to recover land taken into a public Tomlinson. The affidavit on which cause was road under the provisions of an act of parlia. shewn stated, that the defendant's attorney ment, as it was alleged, illegally. The road had been desired by his client to countermand was declared by the act to belong and be notice of trial, as he was not then prepared to vested in certain commissioners as trustees, try. Pursuant to this direction he had counterand service had been effected on one of the manded it; and since that tiine he had been commissioners, and upon their clerk. Tindal, C. J.—I do not see that you have lieved that his client would be able to go to

unable to find the plaintiff; but be verily beadopted the right course in seeking your re: trial at the next assizes. medy. There is no one in possession, and how can you swear that you have served the that although a very slight excuse might be

Tomlinson, in support of the rule, contended tenant in possession? You cannot terin the sufficient for not proceeding to trial, yet that commissioners tenants in possession. They there must be some excuse; here, however, are not so much so as the public who pass there was none. over the road. Rule refused.—Doe d. White v. Roe, M. T. for not proceeding to trial, and therefore the

Lord Abinger.-No excuse is here stated 1839. C. P..

present rule must be absolute for judgment as in case of a nonsuit.

Rule absolute.-Willis v. Jopkin, M. T. 1839.

Excheq. The indorsement on the copy of a writ of

Queen's Bench. summons directing the defendant to pay the

Michaelmas Term, 1839, 3d Victoria. amount of the debt and costs to the plaintif or his attorn :"the Court refused to

15th November, 1839. set aside the copy of the writ, and held that This Court will, on the 26th instant, bold sit

the indorsement might be amended, tings, and will proceed in disposing of the busiMartin moved for a rule to set aside the ness in the Peremptory Paper on that day, and copy of the writ of summons served on the in the New Trial Paper on the 27th and 28th defendant in this action, on the ground of an instant, and in the Special Paper on the 29th irregularity in the indorsement. "An indorse- and 30th instant; and on the last mentioned ment was necessary to be made, stating the day will give Judgment in Cases previously amount of the plaintiff's claim for debi and argued.

By the Court. costs, and that the amount should be paid to

plaintiff or his attorney.” Here the THE EDITOR'S LETTER BOX. words quoted were written “the plaintiff or his attorn," and the indorsement there stopped. We are informed that the case reported It was admitted that the attorney's name was p. 30, ante, of an application to the Court hy given in the writ, but it had been repeatedly a candidate to be examined this term, who held that the rule must be strictly followed. had omitted to give one of his notices through

Tindal, C. J.—The indorsement may be a misunderstanding with one of the Judge's amended on an application to the Court. It clerks, was that of Ex parte Goode,and not is evidently an error.

Ex parte Rowland.Martin urged that it had been laid down that

The long Lists of Causes in all the Courts, such an amendment could not be made.

which we gave on the first day of terın, has Coltmun, J.—The distinction has been drawn thrown some matter into arrear, but we shall between the cases arising under any statute, speedily dispose of it. and under a rule of the Judges. In the former The List of Re-admissions for the last day of instance an amendment will not be allowed, this Term, which we gave last week, were more but under the latter the Court has decided that pressing than the Admissions, which relate it may be made.

only to Hilary Term. Objections to any of Tindal, C. J.-On an application the amend the Re-admissions intended to be made through ment might be made, as the indorsement is the Law Society should be stated without ordered by a rule of the Judges.

delay. Rule refused. —Anon., M. T. 1839. C. P. The “ Un-Common Law Rhymes” have

been received, and will probably appear in the next Monthly Record.

the is

The Legal observer.

SATURDAY, NOVEMBER 23, 1839.

Quod magis ad nos
Pertinet, et nescire malum est, agitamus.

HORAT.

POINTS AS TO TITLE. necessary in the case of a mortgage or pur

chase: a purchaser or mortgagee is entitled The important question involved in the to have a good marketable title, while for construction of the stat. 3 & 4 W. 4, c. 27, the purpose of an indemnity, a prima facie as to the length of title which must now be good holding title is sufficient. The late produced, has not, so far as we are aware, statute 3 & 4 W. 4, c. 27, has abridged been the subject of any direct decision. It the time during which a party can recover was, however, incidentally touched upon in land, the extreme limit is now forty years : a very late case. In this case, the main the effect of this legislative enactment is to point was, whether a title was marketable diminish the extent of title formally neceswhere there are no title deeds whatever in sary to be shewn, and now a forty years' the possession of the vendor. As to this, title ought to be deemed a marketable title, the following rule may be collected from 1 Sugden V. & P. 330. In all cases there Mr. Preston's work on Abstracts. Some- may be outstanding estates, but here there times the first deed in the abstract is of is no suggestion or ground of suspicion that a date falling within the requisite period ; any exist. Watkins has been in undisbut the history of the title is traced turbed possession of the property for twentythrough a period of that duration, by shew- seven years, and there is evidence of reing, either from the recitals, or from a putation of the ownership of Lloyd and short history of the title in the descrip- Watkins for more than 100 years. It has tion of the parcels, or from the assess been decided that the absence of title deeds inents to the land-tax, or from a schedule does not necessarily make a title bad, 1 of the title deeds, that the ownership on Prest. Abst. 23. [The Master of the Rolls. which the title depends, commenced up. I am far from thinking otherwise.] Conwards of the required number of years since. veyancers consider the land-tax assessments And this, in general, is deemed satisfactory as evidence of seisin.” The Master of the by conveyancers, especially after an inquiry Rolls said --I think that the evidence here for wills, settlements, &c, as far as that in. is not sufficient, because it rests upon

inquiry can reasonably be prosecuted, or formation and belief; I am perfectly satiswhere the property is small.

fied that there are good titles in which the In the case to which we allude, a reference origin cannot be shewn by any deed or to the Master was not to report whether a will; but then you must shew something good title could be made to the property, that is satisfactory to the mind of the but to approve of an indemnity to be given Court, -- that there has been such a long to Lord Kensington. “It is not the usual uninterrupted possession, enjoyment and practice, (said Mr. Pemberton, arguendo) to dealing with the property as to afford a require the same extent, or the same accu- reasonable presumption that there is an racy of proof of title, where property is absolute title in fee simple. Now it rests proposed as an indemnity against a con- here on the information and belief of a gentingent loss, which may never occur, as is tleman, without stating the circumstances

upon which his information and belief rest : a Prest. Abs. 20, 29, 252.

I think that he ought to have stated the VOL. XIX.--NO.559.

E

« EelmineJätka »