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Notes of the Week.-Superior Courts: Court of Chancery.
unlike that of the politician, which consisted in "a lively expectation of benefits to be received."-From the Times of 28th April.
COMMON PLEAS SITTINGS.
This Court did not sit on the 26th April, their Lordships being in the Court of Criminal Appeal in which Court it was announced that judgment would be delivered on Saturday next in those cases which were then standing over for judgment.
EXCHEQUER OF PLEAS.
This Court rose at 2 o'clock on the 26th April, in consequence of the absence of counsel in several cases in the New Trial Paper. At its rising,
The Lord Chief Baron said, that as this was the second occasion on which this Court had inadequately employed the day for the same reason, he wished to give notice that on Tuesday Mr. Baron Martin would attend, when the Court would dispose of those cases in the New Trial Paper in which Mr. Baron Bramwell had been engaged as counsel, and that after those were heard the cases would be peremptorily taken in their order. If the parties should fail to appear in any case, the Court would read the report and decide the point as best they might, leaving the parties to their appeal, if any existed, it being determined that no excuse for the absence of counsel would be accepted.
Mr. Baron Alderson.-The Judges are in attendance ready to do their work, and it is a great shame that the suitors should be delayed in this way. From the Times of 28th April.
Thomas Sydenham Clarke, Esq., Barristerat-Law has been appointed a Justice of the Peace for the Liberties of the Cinque Ports.
Mr. Philip Hitchen Palmer, Solicitor, Norwich, has been appointed Deputy Coroner for the Norwich District of the County of Norfolk.
Mr. John Michael Blagg, Solicitor, has been appointed Clerk to the Commissioners of Land and Assessed Taxes for the newly formed division of Cheadle, Staffordshire.
Mr. E. Grey has been appointed Second Assistant to the Accountant-General to the Government of India.-Civil Service Gazette.
The Queen has been pleased to appoint Francis Offley Martin, Esq., William Davey Boase, Esq., and John Simons, Esq., to be additional Inspectors for the purposes of the Charitable Trusts Acts.
The Queen has been pleased to confer the honour of Knighthood upon William Henry Holmes, Esq., of the Civil Service, British Guiana. From the London Gazette of 22nd April.
The Queen has been pleased to appoint Alan Ker, Esq., now Chief Justice of the island of Nevis, to be Chief Justice of the island of Dominica; and David Cameron, Esq., to be Chief Justice of Vancouver's Island.From the London Gazette of 29th April.
John Reilly, Esq., son-in-law of Lord St. Leonards, and formerly Secretary to the Master of the Rolls, has been appointed Deputy Keeper of the Rolls in Ireland, in the room of Mr. Robert Wogan, resigned.
Mr. W. R. C. Smith, son of the Master, has succeeded Mr. Reilly as Secretary to the Master of the Rolls in Ireland.-Times.
RECENT DECISIONS IN THE SUPERIOR COURTS.
the parent's legacy, as by his will directed; if
and Pigott for the trustees.
The Court said, that the nephews were only entitled to the income of the legacies for life.
A testator, by his will, gave a sum of money to each of his two nephews if they should respectively survive and attain the age of 21, when the legacies were to be paid. In case of the death of either of such nephews leaving issue, such issue to take the parent's legacy as by his will directed; if no will equally; but in case of the death of either of his nephews before his legacy was In re Palmer, exparte Crabbe and another. payable his legacy to go to the survivor: Held, that, on both the nephews attaining 21 but having no issue, they were only entitled to the income of the legacies for life. THE testator, by his will, dated March 20, gave 2,000l. to each of his two nephews, if they should respectively survive and attain the age of 21 years, when the legacies were to be paid. In case of the death of either of his said nephews leaving issue such issue to take
April 26, 29, 1856. BANKRUPTCY.—JURISDICTION OF COURT OF APPEAL, ALTHOUGH NO ORDER OF ADJUDICATION.
Held, that the Court of Appeal in bankruptcy has jurisdiction under the 12 & 13 Vict. c. 106, s. 12, to hear an appeal on the merits, although the Commissioner has not made an order of adjudication, and to declare whether on the evidence the Com
Superior Courts: Court of Chancery.—V. C. Kindersley.
missioner should have made such order, and
review his own decision or that of his predecessor in office, as to the liability of a person to be a contributory generally and not with a qualification, and although no new facts are brought forward.
THIS was a motion to reverse the decision of Master Richards that he would reconsider and review the finding of Master Kindersley in 1851, placing the name of Viscount Curzon on the list of contributories in respect only of any liability incurred on the particular day when he was present at and was elected a member of the managing committee. It was now sought to make the appellant generally liable, and the Master had held he was bound to review the former decision in accordance with Spottiswoode's case, 3 Eq. Rep. 681.
108, s. 17, which enacts, that "it shall be lawful for the Master from time to time to reconsider and review any order or proceeding which may have been made by or may have taken place before him under the said Act, upon such terms and in such manner as he thinks fit."
THIS was an appeal from the decision of Mr. Commissioner Balguy, of the Birmingham District Court, refusing to adjudicate as bankrupt under the 12 & 13 Vict. c. 106, s. 69, William Palmer, a surgeon and apothecary, who had been taken into custody under a ca. sa. and subequently removed under a coroner's warrant on a charge of felony. The question was raised, on a previous hearing before the Lords Justices (reported ante, vol. 51, p. 350), and reserved for the consideration of the full Court, whether this Court had jurisdiction under s. 12, which enacts, that "the Court, in the exercise of its primary jurisdiction by virtue of this Act, shall have superin- for the official manager; Greene for contribuGlasse and De Gex in support; Roxburgh tendence and control in all matters of bank-tories, contrà, referred to the 12 & 13 Vict. c. ruptcy, and shall hear, determine, and make order in any matter of bankruptcy whatever, so far as the assignees are concerned, relating to the disposition of the estate and effects of the bankrupt, -or of any estate or effects taken under the bankruptcy and claimed by the assignees for the benefit of the creditors,-or relating to any acts done or sought to be done by the assignees in their character of assignees by virtue or under colour of the bankruptcy,and also in any matter of bankruptcy whatever as between the assignees and any creditor or other person appearing and submitting to the jurisdiction of the Court; and also in any application for a certificate of conformity, and in any other matter (whether in bankruptcy or not) where the Court by virtue of this Act has jurisdiction over the subject of the petition or application, save and except as may be by this Act otherwise specially provided,—and subject in all cases to an appeal to such one of the Vice-Chancellors of the High Court of Chancery as the Lord Chancellor shall from time to time be pleased to appoint to sit in bankruptcy." De Gex for the bankrupt.
The Court (without calling on Daniel and A. Smith for the petitioners) said, that the hearing of the appeal on the merits ought to proceed. And in giving judgment (April 29) on the remaining points of trading and act of bankruptcy, said that the Court of Appeal had full jurisdictiou to declare whether in their opinion, upon the evidence, the Commissioner could have made an adjudication, and to remit the matter to him with a declaration if the evidence was thought sufficient.
In re London, Birmingham, and Buckingham-
DECESSOR IN OFFICE.
Held, that the Master has power, irrespective of the 12 & 13 Vict. c. 108, s. 17, under the 68th Order of April 3, 1828, to
The Vice-Chancellor said, that, irrespective of the Winding-up Acts, the Master had power under Order 68 of April 3, 1828, upon special grounds, to review his own decision or the prior one of another Master in the same office. Nor was it necessary for that purpose that any new facts should be brought forward, or to show that a different view had been taken of the existing law, but he was justified under the order in deciding that he would reconsider a former decision if he thought the matter had not on the former occasion been properly presented. The motion would therefore be refused, without costs,-the costs of the official manager to come out of the estate.
Chauntler v. Easton. April 24, 1856.
ORDER FOR RECEIVER.-REFUSAL OF PARTY
Upon the party named in an order as a re-
Welford in support; Speed and Crouch for other parties.
The Vice-Chancellor said, that as parties fot
I Which directs, that no warrant to review any proceeding in the Master's office shall be of the Master, upon special grounds to be allowed to be taken out, except by permission shown to him for that purpose; and the costs of such review, when allowed, shall be in the discretion of the Master, and shall be paid by and to such persons and at such time as he shall direct."
Superior Courts: V. C. Kindersley.-V. C. Stuart.-Queen's Bench.
sui juris might be interested the order should | 110, s. 14,' to make absolute an order charging be carried out by summons at Chambers.
Blundell v. Blundell. April 28, 1856.,
CONSTRUCTION. APPOINTMENT UNDER POWER.-VOID CONDITION.
A testator having a power to appoint by will among all his children at such ages, not being after 21 years from his death, by his will appointed under the power among all his children except two, who had become nuns, and he declared that any child for the time being entitled to any share of the trust funds becoming a nun, should not be entitled to any part thereof. All the children had attained 21 at the testator's death, but one, afterwards contemplated becoming a nun: Held, that the condition was void as to her, and that she was entitled to her share.
400 shares in an insurance company, standing in the name of a contributory to the above bank, with the payment of the balance due from her on an order for a call made by the Master on her towards the liabilities of the
Roxburgh, for the official manager, in support; Malins, for the insurance company, claimed a prior lien.
The Vice-Chancellor granted the motion, but without prejudice to any question of priority of lien claimed by the insurance company. Court of Queen's Bench. Powles v.
Hyder. April 17, 25, 1856. MASTER AND SERVANT.-CAB PROPRIETOR'S LIABILITY FOR LOSS OF PASSENGER'S GOODS BY DRIVER'S NEGLIGENCE.
Held, discharging a rule to set aside verdict for a plaintiff, and enter it for the defendant, that a cab proprietor is liable to a passenger for the loss of his goods through the negligence of the driver, whatever muy be the arrangement as to the mode in which such driver is remunerated.
THE testator, having power under his marriage settlement to appoint certain moneys among all his children, at such ages not being after 21 years from the time of his decease, as he should appoint, by his will appointed in pursuance thereof the funds amongst all his children except Catherine and Clementina, who THIS was a rule nisi to set aside the verdict had become nuns, and he declared that no child for the plaintiff and enter it for the defendant, or children for the time being entitled under in this action which was brought to recover any of the trusts contained in his will who should embrace a religious life by joining any religious community, should be entitled to any part of the trust fund. It appeared that there were six children surviving at the testator's death (including the two who were excluded from the trust), all of whom had attained the age of 21, and that Anna Maria, one of them, had received her share from the trustees, and the question now arose, upon her intending to become a nun, whether such share was repayable to the trustees.
F: Riddell, H. M. Riddell, and Turner, for the several parties.
The Vice-Chancellor said, that as she had attained 21 she had an absolute vested interest in the sum payable under the execution of the power, and that the condition was therefore inoperative against her.
In re Royal Bank of Australia, exparte the
FOR CALL ON CONTRIBUTORY.
from a cab proprietor the value of certain goods lost by the plaintiff whilst riding in his cab, through the negligence of the driver. It appeared on the trial before Lord Campbell, C. B., that the defendant received 14s. 6d. per day from the driver for the use of the cab and two horses, which he fed, but that the driver kept all the money he earned beyond that sum. Hugh Hill showed cause; Bovill and Holland in support.
Cur. ad. vult.
The Court said, the question was, whether the driver could be considered, under the circumstances, as the defendant's servant, so as to render him liable for the driver's negligence. If the driver had been paid by wages, there
1 Which enacts, that "if any person against whom any judgment shall have been entered up in any of her Majesty's Superior Courts at Westminster shall have any " ,"stock or shares of or in any public company in England (whether incorporated or not) standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful for a Judge of one of the Superior Courts, on the applicaAn order was made absolute under the 1&2 such" " shares, or such of them or such part tion of any judgment creditor, to order that Vict. c. 110, ss. 14, 18, charging certain thereof respectively as he shall think fit, shall shares in an insurance company standing stand charged with the payment of the amount in the name of a contributory with the pay for which judgment shall have been so recoment of the balance due on an order for a call made by the Master on her towards vered, and interest thereon," &c.; and s. 18 the liabilities of a company which was Courts of Equity," "whereby any sum of provides, that wound-up under the 11 & 12 Vict. c. 45, but subject to any lien of the insurance money, or any costs, charges, or expenses shall be payable to any person, shall have the effect of judgments in the Superior Courts of
company. THIS was a motion under the 1 & 2 Vict. c. Common Law."
"all decrees and orders of
Superior Courts: Queen's Bench,-Common Pleas-Crown Cases Reserved.
could have been no doubt on the subject, and the mode in which he was here remunerated made no difference. They must be considered as employer and employed, as master and servant. The 1 & 2 Wm. 4, c. 22, s. 20, and the 6 & 7 Vict. c. 86, showed the driver was the servant of the proprietor, and it would be most injurious to the public if the proprietor could, by a secret agreement as to the mode in which his driver was to be remunerated and his earnings to be divided, defeat an action brought against him for his servant's negligence. The rule would therefore be discharged.
Benson v. Paull. April 26, 1856. COMMON LAW PROCEDURE ACT, 1854.MANDAMUS.-SPECIFIC PERFORMANCE OF
Held, that a mandamus will not be granted under the 17 & 18 Vict. c. 125, s. 68, for the specific performance of a contract entered into by the defendant to accept a lease and sign a counterpart.
THIS was an action under the 17 & 18 Vict.
c. 125, s. 68,1 for a mandamus for the specific performance of a contract entered into by the defendant to accept a lease and sign a counterpart. The defendant demurred.
Lush in support; Bovill, contrà.
The Court said, that the section of the Act did not extend to any matter where the duty to be enforced arose out of a mere obligation to perform a personal contract. If it did, it would equally apply to every case where there there was a duty following from any matter in which a party might be personally interested. It never could have been the intention of the Legislature to confer on the Courts of Common Law a power which could not be satisfactorily exercised so as to insure equity being done between the parties. It seemed that the section only intended to extend the power of granting a mandamus, which was previously vested in this Court alone, to the other Superior Courts. And the defendant was therefore entitled to judgment.
Court of Common Pleas.
County Court at St. Helen's, that in order to entitle a plaintiff to recover on a policy of insurance on his testatrix's life, he should show that the agent, who received the premiums thereon, notwithstanding the time had expired under the rules, and the policy had become forfeited, had authority so to receive the same and waive the forfeiture. Court held at St. Helen's by the administrator THIS was a plaint in the Lancashire County of one Ann Ward, to recover a sum of 507. on a policy of insurance effected on her life in the defendants' company. It appeared that the policy was admitted to have been forfeited by reason of the non-payment of the premium within the period of four weeks thereby limited, but it was contended that the forfeiture wns waived by the defendant's agent having accepted payment of the premium after such default. The plaintiff having obtained a verdict this appeal was presented,
Tapping in support; Keating and Milward,
The Court said, that as there was no evidence that the agent had authority to waive the rule, and it was entirely a question of fact, the appeal must be allowed.
Crown Cases Reserved.
Regina v. Sloggett. April 26, 1856. INDICTMENT FOR UTTERING FORGED IN
STRUMENT.-EXAMINATION OF PRISONER
Held, that the examination of a bankrupt under the 12 & 13 Vict. c. 106, wherein he stated he had obtained his brother to write a letter in his father's name containing a false statement as to the prisoner's capital, whereby he had procured additional credit, is admissible in evidence on an indictment charging the prisoner with forging the same knowing it to have been forged, &c.
THIS was an indictment charging this prisoner with uttering a forged instrument knowing it to have been forged for the purpose of fraudulently obtaining goods, and on the trial
Ward v. British Industry Life Assurance Com- before Channell, S. L., an examination of the
pany. April 25, 1856.
ACTION ON POLICY.- -AGENT'S RECEIPT
Held, reversing the decision of the Lancashire
Which enacts, that "the plaintiff in any action in any of the Superior Courts, except replevin and ejectment, may endorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested."
prisoner before the Commissioner in Bankruptcy, under the 12 & 13 Vict. c. 106, was put in, in which he stated he had got his brother to write the letter in question in his father's name, containing a false statement as to the prisoner's capital, and on which he had obtained additional credit. The prisoner was found guilty, and sentenced, subject to the opinion of this Court.
Collier for the prisoner; Coleridge for the prosecution.
The Court said, that as the prisoner might have refused to answer the questions which did not affect his trade, dealings, or effects, the examination was properly received, and the conviction would be affirmed.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare
SATURDAY, MAY 10, 1856.
PROGRESS OF LAW BILLS IN
Society for the Protection of Trade, in favou of the Lord Chancellor's County Court Amendment Bill, praying that instead of the optional clause giving the Court jurisPARLIAMENT has adjourned for the diction, if both parties consented, in cases Whitsuntide holidays, but will re-assemble where the amount exceeded 501., the plainon the 16th instant. According to the tiff should be at liberty to bring such cases modern objectionable course of continuing into the Court without the defendant's prethe Session to the middle of August, there vious consent,-leaving the defendant to yet remain nearly three months for the de- require that the case should be tried in the bate and consideration of the numerous County Courts. Bills in progress or intended to be brought The Lord Chancellor said, that the subforward. So far as the members of the ject of the petition had received his anxious Profession or their clients are concerned, it attention, and a very able paper had been is incumbent vigilantly to watch the pro- prepared by one of the Commissioners, Mr. posed alterations in the Law ;-and we shall Pitt Taylor, who had framed a number of continue therefore from time to time to call clauses, which would be introduced on the attention to such of them as seem to be 2nd reading, when he should move that the important. Bill be committed pro forma for that purpose. We shall wait for these clauses with some curiosity, if they are intended to give jurisdiction to the County Courts beyond the sum of 50%. Is it proposed that the County Courts are to be "Courts of First Instance," and the Superior Courts only Courts of Appeal?
It will be recollected that the usual protracted sittings of both Houses deprive the Profession of the services of many of the members who are engaged on the Circuits, which commence about the 10th July, so that if it should be the purpose, on either side of the House, to press forward an objectionable measure of Law Reform, the probability of success is greater when most of the lawyers have departed for the Assizes. There ought to be a time fixed for each Session, after which no Law Bills should be passed, unless of acknowledged urgency for the due administration of justice.
The recent discussions in Parliament relating to the principal Bills under consideration, were in substance as follows:
A petition was presented on the 2nd May by Lord Brougham from the Yorkshire
This is the proposition of the Government,
The Mercantile Law Amendment Bill was discussed in the House of Lords on the 2nd instant, in reference particularly to the repeal of the 17th clause of the Statute of Frauds, which requires contracts for the sale of goods above the value of 107. to be in writing. It is stated by the Commissioners that in Glasgow, Liverpool, Manchester, and other places, contracts in writing are not required in the ordinary operations of trade and commerce, which are safely