« EelmineJätka »
Analytical Digest of Cases: House of Lords' Appeals.
Will not interfere with enforcing legal right - Abandonment-Representations.When a person possesses a legal right, a court of equity will not interfere to restrain him from enforcing it, though between the time of its creation and that of his attempt to enforce it, he has made representations of his intention to abandon it. Nor will equity interfere even though the parties to whom these representations were made, have acted on them, and have, in full belief in them, entered into irrevocable engagements. To raise an equity in such a case, there must be misrepresentation of existing facts, and not of mere intention (Lord St. Leonards dissentiente).
Per Lord St. Leonards. "It is immaterial whether there is a misrepresentation of a fact as it actually existed, or a misrepresentation of an intention to do or abstain from doing an act which would lead to the damage of the party whom you thereby induced to deal in marriage, or in purchase, or in anything of that sort, on the faith of that representation." Jordan v. Money, 5 H. of L. 185.
Action for-Plea-Bottomry bond-Monition from Admiralty Court.-In an action by a shipowner against the charterers for freight, the charterers pleaded that after the freight had been earned and after the commencement of the suit the obligee of a bottomry bond, by which ship and freight were hypothecated, instituted in the Court of Admiralty a suit against ship and freight whereon a monition issued, commanding the plaintiff to bring into court the proceeds of the wreck and stores of the ship, and the defendants to bring into court the money due for freight, to abide the judgment of the court, and that the defendants had done so.
Held, affirming the judgments of the Courts of Exchequer and Exchequer Chamber, that this was a good plea in bar to the action.
Construction of the 3 & 4 Vict. c. 65.-Place v. Potts, 5 H. of L. 383.
HUSBAND AND WIFE.
Assignment of reversionary interest in leaseholds— Appeal-Costs.-This was an appeal against an order of the Master of the Rolls, who had decided that a wife's reversionary interest in leaseholds could not be assigned by the husband, if that interest was of such a nature that it could not possibly vest in the wife in possession during the coverture. (See 16 Beav. 33.) When the appeal was called on, no one appeared on either side, and therefore
The appeal was dismissed.-Day v. Duberley, 5 H. of L. 388.
The fact of a foreigner having property in this country, enables the court here to make effectual an injunction issued to him; but especially in the case of a foreigner who seeks no assistance from the court here, the issuing of such injunction ought clearly to be shewn to be required, as conducive to justice.
Per Lord St. Leonards: A company may have two domiciles, and places of business may, for the purpose of founding jurisdiction, be treated as places of domicile, and service there is sufficient.
Where there is a plain equity in favour of an injunction, and the representatives of the real and personal property who seek it are in this country, the court will grant it, and restrain proceedings in the courts of a foreign country. In such a case, the court will decide upon a consideration of all the circumstances, and require parties here to take or omit such steps in a foreign court as the ends of justice may require. The particular provisions of the foreign law applicable to a transaction, proceedings as to which in a foreign court are thus restrained must not be disregarded.
A company was chartered in Scotland for the manufacture of iron. Its manufactory and chief office of management were there; it had agents for the sale of the goods in different parts of Scotland and England, and it possessed real estate in both countries. A., a large shareholder in the company, and possessed of real and personal property in England and Scotland, was the company's agent for the sale of goods in London, and was domiciled here. When he died he made a will in the English form and appointed as his executors persons who were resident in both countries; his heir was one of those persons, and was also the person who succeeded him in the London agency for the company. Probate of the will was taken out in England; and such of the executors as thought fit to apply to the Scotch court were, according to the Scotch law, confirmed in the execution of the will. An administration suit was instituted in the Court of Chancery, and the usual order for a general account of the debts and assets made. After the date of this order the Iron Company took proceedings in the Scotch courts against the real and personal estate of the testator in Scotland. Notice of an injunction at the suit of the executors was served on the company's agent in London and on the company's manager in Scotland; the company did not appear, and the injunction was issued. The company then moved to dissolve the injunction. No order was made.
Held (Lord St. Leonards dissentiente) that the injunction could not be maintained.
Quare. Whether service of notice of iujunction on an agent when the principal is out of the jurisdiction can be good service, especially when that agent is merely an agent for the sale of the goods of the principal?
Service of notice on one member of a corporation is sufficient.-Carron Iron Company v. Maclaren, 5 H. of L. 416.
And see Banking Company; Equity.
The Legal Observer,
SATURDAY, NOVEMBER 8, 1856.
THE CHIEF JUSTICE OF THE COURT OF
THE present Term has opened with two events of great importance which materially affect both the Bench and the Bar, namely, the decease of the Lord Chief Justice of the Court of Common Pleas, and the retirement of Mr. Baron Platt. On this, as on similar occasions, rumours have filled the air" regarding the successors to these eminent legal positions. According to the usual rule, Sir Alexander Cockburn, the Attorney-General, appears to be entitled to the chief seat in the Common Pleas. In the event of his accepting the appointment, Sir Richard Bethell would become Attorney-General, and several leading counsel are named for the honourable appointment of second law officer to the Crown. Amongst them are Mr. Edwin James, Q. C., the recorder of Brighton; Mr. Collier, Q. C., the member for Plymouth; Mr. Wilde, Q. C., of the Northern Circuit, and other distinguished members of the Inner Bar.* Such are the hopes and expectations either of the learned gentlemen themselves, or of their professional friends, or the conjectures of the various reporters of the press, who endeavour to stimulate, if they cannot satisfy, the thirst for knowledge on such interesting subjects.
If, however, it be true (as asserted at the time we write) that the Attorney-General has positively declined the honour of being the second Lord Chief Justice (looking forward to a still higher position), then several reports are in circulation of the probable successor of Sir John Jervis. We believe the favourite candidate is Sir Frederick Thesiger, who on a former occasion, when Attorney-General, advanced to the threshold of the same distinguished post, who was also some time ago predicted to be the successor of the present Speaker of the House of Commons, and who, more lately, the present Administration intended to raise to the dignity of a peerage for life, as one of the law lords of the ultimate Court of Appeal. These high grounds give support to the general rumour.
The names of Mr. Knowles and Mr. Hoggins have also been mentioned, and, in case of their promotion, Mr. Warren, M.P., will probably be the Attorney-General of the County Palatine.
VOL. LII. No. 1,496.
Yet another most popular name has been circulated with almost equal confidence-that of Mr. Justice Erle, who (though we believe a Whig) was raised to the Bench by the Lord Chancellor of the late Sir Robert Peel's administration. No man can possibly be more highly esteemed in all respects than this is a striking precedent for the promotion of a eminent judge, and it may be said that there puisne judge to the chief seat, in that of Mr. Justice Abbott, afterwards Lord Tenterden; but of late years the general rule has prevailed that when a judgeship is accepted, it is deemed the termination of the lawyer's ambition. It is argued that the complete independence of the Bench is best secured by removing each member of it from any expectation of a Prime Minister's favour. Indeed, some years ago, on the decease of Lord Abinger, it was said that Mr. Baron Parke, then the senior of the court, and a Conservative, entertained expectations (or his friends for him) that the Chief Seat would be offered to him; but it may be presumed that the rule of judicial policy we have referred to, or the higher claims of Sir Frederick Pollock prevailed over those of the Senior Baron.
We would now proceed to state some particulars of the career of the late eminent Chief
Justice, with some remarks on his judicial
character. He was the second son of Thomas Jervis, Esq., Q. C., formerly Chief Justice of Chester, and for many years Counsel to the Admiralty. He was born in 1802, and was consequently only fifty-four at the time of his death.
It appears that Sir John Jervis served for some time in the army, but was induced to change his profession, and having passed through the usual course of a student, was called to the bar in the year 1824 by the Honourable Society of the Middle Temple. He selected the Oxford and Chester Circuits, and represented the City of Chester in Par
liament from 1832 till his elevation to the Bench.
amongst others of a "Treatise on the Office He was the author of several valuable works, and Duties of Coroners, with Practical Forms;" of a "Collection of the Rules of Court, and Statutes in relation to Pleading and Practice," accompanied by very valuable notes,
Judicial Changes: The Retirement of Mr. Baron Platt.
and of a "Treatise on Criminal Law." Besides these works, he was associated with Mr. Crompton, and afterwards with Mr. Younge, in their valuable series of Reports.
He obtained a patent of precedence in 1839, and became Attorney-General in the year 1846; he filled that important office with great ability. It will be remembered that, in the year 1848, he prevailed, without an exception, in the Government prosecutions against the political offenders who attempted to disturb the public peace. In 1850 he succeeded Lord Truro as Chief Justice of the Common Pleas, when that noble lord was promoted to the office of Lord Chancellor.
Having thus stated the principal events in the career of Sir John Jervis at the bar, we proceed to the consideration of his judicial character; and for this purpose, we deem it expedient to make some extracts from the able articles which have appeared in the public journals :
"It was feared by many that an advocate by some thought unscrupulous, and, at any rate, distinguished by dexterity rather than profundity, might not have worn the ermine of the bench with becoming gravity and impartiality. This fear, we are bound to say, proved entirely without foundation. The common sense which Sir John Jervis possessed, in addition to his great professional experience, kept him clear of all judicial blunders, and in criminal matters, which form so large a portion of judicial duties, an abler judge in all probability never sat on the bench. His sagacity and acuteness here found a fitting field, and his dexterity and sound practical sense stood him in good stead, whether in detecting crime or in exposing the fallacies put forward by counsel.
"In his purely legal decisions he shewed the same qualities, and we believe we only utter the opinion of the profession, which now meets together after the Long Vacation in Westminster Hall, when we say that in all respects the late Sir John Jervis was an excellent judge."
We also avail ourselves of the following sketch by a graphic pen :—
"It would probably be quite within the limits of truth to say, that in the two intellectual gifts of rapid apprehension and rapid ratiocination, no public man of the present day was within the range of his own professional pursuit, the equal of the late Sir John Jervis. Even to those most accustomed to
witness the effects of forensic training in sharpening and quickening the intellectual faculties, there was something almost preternatural in the swiftness of glance with which the deceased Chief Justice took in all the bearings of a complicated subject, which, till he came into court, was wholly unfamiliar to himin the facility with which he detected every artifice, exposed every sophistry, and pursued with an unerring logic the longest train of legal reasoning to its remotest consequences. As a mere dialectic display, few exhibitions could be more gratifying to an intellectual mind than to watch Sir John Jervis, in the Common Pleas, making his way through the intricacies of a long patent cause, or playfully dragging to light the skilfully disguised fallacy which formed the basis of some solemn and plausible argument *From the Times of the 3rd November.
that might easily have imposed on a judge less skilfully astute than himself.
"The mode in which the whole was done made the best part of the exhibition. Not a word was wasted. Subtle and swift, the keen shaft of logic was shot, and the solemn man was abated, and the ponderous man came down with a crash, and— greater miracle still-the incessantly talkative man was silenced. Even the ablest and the clearestheaded confessed that there was no standing up against Jervis;' and by a sort of tacit agreement it came to be understood that as little nonsense as possible was to be talked before him. And all this was done without pedantry and without harshness. Everything was accomplished with the easy, halfcareless manner of a clear-sighted man of the world. The presiding judge never spoke except to the point, and, as far as possible, repressed any deviation from this laudable habit in others. The consequence was, that causes were got through with a rapidity which, to those accustomed to the more cumbrous procedure of other sages of the law, seemed almost incredible. And yet this rapidity was not purchased at the expense of any slovenliness or inaccuracy. There is probably no judge on the Bench against whose Nisi Prius rulings so few exceptions have been successfully urged. Still it is undeniable that the manner of the Chief Justice had its disadvantages. Decorous people professed to be shocked at its total want of conventional dignity; but even those who are more disposed to regard the substance than form were obliged to admit there was a carelessness, a levity, sometimes even cynicism, about the deportment of Sir John Jervis, which would on all accounts have been as well away. But these were, after all, minor defects; and we believe we shall find a very general concurrence in the opinion we venture to express, that upon the whole it will not be easy adequately to supply the void which the death of Sir John Jervis has left on the judicial Bench."
THE RETIREMENT OF MR. BARON PLATT.
The resignation of this much-respected and learned Baron took place on the first day of Term. It will be recollected by many of our older readers that he was the son of Mr. Thomas Platt, a gentleman exceedingly well known and highly esteemed during a long and prosperous life. Mr. Platt, the father of the Baron, was a solicitor, and we believe for many years the legal adviser of the proprietors of the Times newspaper. He was the Chief Clerk of the Lord Chief Justice Ellenborough during the whole of his judicial life. knowledge of the practice of the courts was so great, that he was consulted by the attorneys and their clerks almost incessantly on doubtful points, and as a just return for his invariable kindness the great majority of the judges' summonses and orders were obtained at his chambers.
Mr. Baron Platt was called to the Bar by the Honourable Society of the Inner Temple on the 9th of February, 1816; he went the Home Circuit; and became Queen's Counsel in Hilary Term, 1835. He was in large practice at the Bar, and gave great satisfaction to his clients by his zeal and energy in their
* From the Daily News of 4th November.
Judicial Changes: The New Judge-New Statutes effecting Alterations in the Law. 459
behalf. He was appointed a Baron of the Exchequer on the 28th of January, 1845, in the place of Mr. Baron Gurney.
It is justly said by one of our contemporaries that
"Of the learned Baron this, at all events, may be affirmed, that he sustained through his whole career the character of a manly, upright, and even-handed magistrate. The appellation by which he was playfully known in the profession, the "True British Judge," pointed at once to certain defects and to many valuable qualities-qualities especially valuable in an age when a morbid tendency to an excessive subtlety of decision has too often led to a preference for the forms of law over the substance of justice, and a still more dangerous tendency to exalt the power of the judge at the expense of the proper functions of the jury, has led to some encroachment on those constitutional landmarks which it was the just pride of Mr. Baron Platt to preserve unimpaired in all their integrity.",
THE NEW JUDGE.
The vacancy occasioned by the retirement of Mr. Baron Platt has been filled up by the appointment of William Henry Watson, Esq., one of her Majesty's counsel. Mr. Watson, before devoting his attention to the law, was in the army, and served his country in the Battle of Waterloo. On peace taking place, he entered himself as a student at the Honourable Society of Lincoln's Inn, and was called to the Bar on the 8th June, 1832. He went the Northern Circuit. In 1843 he was promoted to the rank of Queen's counsel. Previously to this time, namely, in the year 1841, he was elected a member of Parliament for the borough of Kinsale, and continued its representative till the next general election in 1847. In 1854 he was elected for Hull.
He was chairman of a Committee of the House of Commons on the Fees of Courts of Law and Equity, and we are indebted to the labours of that committee for the relief of many of the burthens on the suitors of the superior courts.
It is, we believe, the general opinion of both branches of the profession that this appointment reflects much credit on the Lord Chancellor,* as a just and proper selection from the large number of leading members of the bar, many of whom look forward to a puisne judgeship as the summit of their ambi
We think the following extract from the Daily News truly expresses the opinion of the public, as well as the profession, on the merits of this appointment :-
"Mr. Watson, though he may not be a showy judge, will, there is every reason to believe, make a sound and serviceable one. It is on these grounds alone that the public will be disposed to judge of the appointment.
“At the same time, it would be affectation to deny
* It will be recollected that the appointment of the three chiefs is vested in the Prime Minister, and of all the puisne judges in the Lord Chancellor.
that other and less legitimate considerations may not impossibly be suggested as having had something to do with his elevation. Mr. Watson has for some time been talked of by his friends as an ill-used, or, at all events, a somewhat unfortunate man. His name has frequently been before the public in connection with the appointment which he has at length obtained, and by those with whom political claims are paramount to all others, it has been made a topic almost of reproach to more than one Liberal administration, that while younger men have been promoted, Mr. Watson, though a staunch and consistent political adherent, has been repeatedly passed by. We cannot shut our eyes to the notorious fact that considerations of the kind referred to, have too often had a paramount influence in appointments to the judicial bench.
"It is satisfactory to be able to say-as we can say conscientiously-that Mr. Watson's elevation is the fair meed of professional position; that in the present state of Westminster Hall it would not have been easy to name a man on the whole better qualified for immediate promotion; and that Lord Cranworth has been able, without neglecting a political adcircumstances, have done no discredit to his integrity herent, to make a selection which would, under any and his discernment."
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
REFORMATION OF JUVENILE CRIMINALS.
(19 & 20 Vict. c. 109).
The preamble recites the 17 & 18 Vict. c. 86, and the 17 & 18 Vict. c. 74.
1. School to which youthful offenders committed need not be named in the sentence. 2. Supplemental orders may be made.
3. Young persons not to be sent to schools to which parents, &c., object.
4. As to settlement and chargeability of young persons sent from Scotland to any school out of Scotland.
Nothing to diminish power of Secretary of State to order removals, &c.
6. Expenses of conveyance, how to be met. 7. Governor of prison to send duplicate of warrant of commitment, if it exists, with child, to reformatory; if not, then a copy of warrant.
8. What is sufficient evidence as to certificate of school and identity of child.
9. Penalty on persons wilfully inducing young persons to abscond from reformatory.
10. Secretary of State to publish list of all reformatory or industrial schools in London and Edinburgh Gazettes.
11. Justices may use the forms set forth in the schedule.
12. Recited acts and 18 & 19 Vict. c. 87, to be read as part of this act.
13. Interpretation of the word "court.”
The following are the title, preamble, and sections of the act:
New Statutes effecting Alterations in the Law.
An Act to amend the Mode of committing Criminal and Vagrant Children to Reformatory and Industrial Schools. [29th July, 1856.]
WHEREAS it is expedient to amend the provisions of two acts passed in the Session of Parliament holden in the 17th and 18th Vict., intituled, respectively, An Act for the better Care and Reformation of Youthful Offenders in Great Britain, and An Act to render Reformatory and Industrial Schools in Scotland more available for the Benefit of Vagrant Children: Be it therefore enacted
1. It shall not be necessary at the time of passing sentence for any court, judge, sheriff, or magistrate proceeding under the said first-recited act to name the particular school to which any youthful offender is to be sent, but it shall be sufficient for such court, judge, sheriff, or magistrate to direct that such youthful offender be sent to such school (being a school duly certified under the said act, and the directors or managers of which may be willing to receive him) as may thereafter, and before the expiration of the term of imprisonment to which he or she has been sentenced, be directed by the chairman or deputy chairman of the said court, or by the said judge, sheriff, or magistrate.
2. Any court, judge, sheriff, or magistrate, or the chairman or deputy chairman of such court, having made an order under the authority of either of the said recited acts or of this act for sending any young person to any reformatory or industrial school, or in Scotland to any similar institution, may, at his or their discretion, make a supplemental order, in England at any time before the expiration of the term of imprisonment to which he or she has been sentenced, and in Scotland at any time within fourteen days of the date of the order, exchanging the name of such school or institution for the name of any other school or institution to which he or she might in the first instance legally have been sent, provided the managers thereof be willing to receive him or her, and such young person shall be sent or transferred to such last-mentioned school or institution accordingly.
3. If the parent or guardian or nearest surviving relative of any young person who may have been sent to or whom it may be intended to send to a school or institution, under the provisions of either of the said recited acts or of this act, certify to the judge, sheriff, magistrate, or court, or the chairman or deputy chairman thereof, by whom the order may have been or may be about to be made, within fourteen days from the day of the making of such order or supplemental order as aforesaid, that they object to such young person being sent to or detained in the school or institution in Great Britain, duly certified as aforesaid, and shall signify their desire that such young person may be sent thereto, and shall prove that the managers thereof are willing to receive such young person, and shall pay or find sufficient security to pay any additional expense which his or her removal may occasion, over and above that of sending him or her to the certified school on which the order shall have been made, in case the removal shall take place before the expiration of his or her imprisonment, and in case the removal shall take place from one such school or institution to another then to pay the whole expense, such court, chairman, deputy chairman, judge, sheriff, or magistrate shall direct such young person to be sent to such last-mentioned school or institution accordingly.
4. Provided always, That if any such young per
son who shall, under the provisions of this act, be sent from Scotland to any school out of Scotland, shall not have right to a settlement in any parish therein, and might have been removed from Scotland under the provisions of the eighth and ninth of Queen Victoria, Chapter eighty-three, at the instance of the inspector of the poor of the parish to which such young person has become chargeable, had he or she not been sent out of Scotland under the provisions of this act, the chargeability on such parish for such young person shall, on his or her being so sent out of Scotland, cease and determine.
5. Nothing in this act contained shall be construed to take away or diminish the power of the Secretary of State to direct the removal or discharge of young persons from reformatory and industrial schools, or in Scotland from other similar institutions, as set forth in the said recited acts.
6. The expense of conveying any young person sentenced in England under the first-recited act or this act to the reformatory school to which he has been committed, under an original or supplemental order, except any extra or additional expense incurred in conveying any young person, at the request of his or her parents, guardians, or relatives, to any school or institution other than the nearest duly certified school, shall be defrayed by the treasurer of the county, city, or borough in which such sentence was in the first instance passed. The expense of conveying any young person sentenced in Scotland under either of the said recited acts or this act to the reformatory or industrial school or other similar institution to which he or she has been ordered to be sent shall, except as aforesaid, be defrayed by the parochial board of the parish on which such young person, if a pauper, would have been chargeable in the first instance. In case of the Secretary of State ordering the removal of any young person from one school or institution to another, it shall be lawful for the Commissioners of Her Majesty's Treasury, on the representation of such Secretary of State, to defray the expense of such removal out of any funds which may be provided by Parliament for the purpose.
7. It shall be the duty of the governor or keeper of every gaol or house of correction having the custody under sentence of any young person who is ordered to be sent to any reformatory or industrial school, or in Scotland any other similar institution, to forward with such young person to such school or institution an original duplicate, if any such duplicate exists, of the warrant of commitment under which such young person has been imprisoned, and if no such duplicate exists to forward with such young person a copy of such warrant, and at the foot of such duplicate or copy to make a memorandum stating that the young person named therein and sent therewith is identical with the person delivered with the warrant of which the instrument is a duplicate or copy to such gaol or house of correction, and the said memorandum shall be signed by the governor or keeper aforesaid, and the possession of such warrant or copy of a warrant, with such memorandum so signed, shall be a sufficient authority for the detention of such young person in such school or institution.
8. Whenever it shall be necessary to prove that any reformatory or industrial school, or other similar institution, is duly certified or sanctioned by the Secretary of State, the production of an attested copy of the certificate shall be sufficient evidence thereof; and the production of an original duplicate of the warrant of commitment, or a copy of the