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Analytical Digest of Cases-House of Lords Appeals.
administration to her estate as her next of kin. plaintiff in the original suit then filed a bill of revivor against A., the two wives and their husbands, merely praying for a revival of the suit. The ordinary order was made. The defendants to the bill of revivor put in an answer, in which they craved to have the full benefit of the answer to the original bill; there was no replication to this answer. original answer contained statements which at the hearing were admitted to be read against the defendants.
Held, that under the circumstances of this case these statements were properly admitted in evidence. Is an answer by committees binding upon the estate of the lunatic?
Is it binding on them in any other character?
See Charity, p. 455.
See Charity, p. 455.
For use of known substance -Infringement.Where a patent has been obtained for the use of a known substance, described by its specific name, and it is afterwards discovered that the use of two other and equally known substances will produce the same effect, though the evidence of scientific men may go to show that the two substances become in the act of so using them, the one substance described in the patent, their use will not constitute an infringement of the patent.
A. obtained a patent for an improved mode of manufacturing cast steel by the use of "carburet of manganese." This substance was well known but was very expensive. At the time the patent was taken out, it was known that carburet of manganese might be obtained from the combination of two inexpensive articles, oxide of manganese and coal tar. Some little time after the patent had been in existence, it was found that if oxide of manganese and coal tar were put into the melting pot with the metal, cast steel would be produced equal to that which was produced by the aid of the "carburet of manganese." Some of the witnesses said that the carburet was produced in the melting pot at the instant of the fusion of all the ingredients therein contained.
Held, that the use of these two articles in that manner was not an infringement of the patent. Unwin v. Heath, 5 H. of L. 505.
company, but acts bona fide in the matter, he may enforce performance of the contract.
Promoters of a company proposing to make a line of railway, or persons standing in a similar situation as directors of an existing company, applying to Parliament for authority to make a new line, may lawfully enter into a contract for land that will be necessary for the proposed line should the bill pass, and when it has passed such contract will be valid, and may be enforced. The mere want of legal power to make the contract at the moment of entering into it will not affect its validity afterwards. Secus, where the act is itself illegal, and Parliament is to be asked to legalise it.
Where a contract for the purchase of land is made by the projectors of a proposed line of railway, though an action at law may be maintained upon the contract, a court of equity will not, simply on that account, refuse its interference to compel specific performance.
In a contract for the sale of land for the purposes of a projected railway, the vendor was described as having, as far as regarded one part of the land, no more than a mere life estate, and the projectors of the railway undertook to obtain from Parliament powers to enable him to make a good title.
Held, that where they did not fulfil this stipulation, or but for their own default, the title might have been perfected, they could not set up his deficiency of title as an answer to a bill for specific performance:
But (per Lord Campbell), though an individual vendee may consent to accept a defective title, it is doubtful whether the directors of a railway company, acting on behalf of the proprietors can do so.
Semble, that where the directors of a railway company, wanting part of a property, purchase more of it than is required, though that may become a question between them and the shareholders, they cannot on that account avoid the contract with the seller. Eastern Counties Railway Company v. Hawkes, 5 H. of L. 331.
Analytical Digest of Cases-House of Lords Appeals.
Investment-Transfer of, in equity.-Where one person entrusted with sums of money to invest for the benefit of another has signed an agreement admitting an amount due on investments made, equity will compel their transfer. Stanton v. Percival, 5 H. of L. 257.
And see Charity, p. 455.
Bill of exchange-Warrant of attorney-Reforming decree. Where money is advanced at usurious interest on the security of bills of exchange, having three months to run, such advance is protected and the bills themselves are valid under the 3 & 4 Will. 4. c. 98, s. 7, and though a warrant of attorney to confess judgment may be taken at the same moment, on which judgment is the next day entered up and registered under 1 & 2 Vict. c. 110, so as to become a charge on the lands of the debtor, the transaction is not thereby rendered invalid under the proviso of the 1st section of the 2 & 3 Vict. c. 37.
The 2 & 3 Vict. c. 37, does not repeal the 3 & 4 Will. c. 98.
Semble, that a warrant of attorney to confess judgment, though by such judgment the lands of the debtor may be charged, is not a charge upon land.
H. had received from L. money advanced on the security of bills of exchange. In Oct. 1843, he wanted a further advance, which L. after inquiring into the value of his real estate, consented to make, on condition that three months' bills should be given for the amount (usurious interest included), and that a warrant of attorney to confess judgment which L. should be at liberty to enter up immediately, should also be executed. All this was done, and judgment was entered up on the following day, and the judgment registered. The bills given in Oct. 1843, were not paid when they became due in Jan. 1844, and others were then substituted for them. These last were also dishonoured. A sale of H.'s estate took place, under a mortgage, executed to a prior creditor, who received more than would satisfy his claim.
Held, that L. was entitled to maintain a bill against him to pay over so much of the surplus in his hands as would satisfy L.'s judgment.
This House does not reform a decree of the court below. Lane v. Horlock, 5 H. of L. 580.
VENIRE DE NOVO.
Bill of exceptions-Postea-Record.-Second trial. -On the trial, in Dublin, of an action between A. and B., the judge gave certain directions to the jury, to which A. objected; he tendered a bill of exceptions, which (according to the provisions of the Irish statute, 28 Geo. 3, c. 31), was duly signed by the judge, and was afterwards argued in the court in which the action was brought. That court adopted the exceptions, and ordered a venire de novo, and a new trial took place, the court deciding that such was the proper course. B. did not appear at the second trial. On the first trial the verdict had been given for B.; on the second it was given for A., and judgment was pronounced thereon in his favour; B. brought a writ of error, and then, finding that the postea and all the proceedings relating to the first trial had been struck out of the record, which from the first venire went on with formal continuance only to the second trial and verdict, he applied to
the court in which the action was brought to have these omissions supplied. That court refused to supply them.
Held, that this mode of proceeding was erroneous, and this House ordered the court in which the action was brought to amend the record by entering on the plea roll the first trial, the exceptions, and the award of a venire de novo.
Held, also, that B. was not bound to appear at the second trial.
Bank of Ireland v. Evans' Charity Trustees, 5 H. of L. 389.
WARRANT OF ATTORNEY.
See Bond, p. 455; Usury.
Construction-Copyholds- Annuities — Interest— Costs. A testator was in 1792 possessed of freehold lands, and of an equitable fee in a copyhold estate. He made a will by which he subjected the whole of his real estate in aid of his personalty to the payment of his debts, and subject thereto, he gave all his " messuages, tenements, lands, hereditaments, and premises, with the buildings, mines, &c.," thereon and therein, over which he had a disposing power, to trustees for 500 years, out of the rents, &c., or by assignment, &c., of the term to raise money to pay his debts, legacies, and, after payment thereof to apply the rents, &c., or the remainder of the estate, to the use of his grandson C. W. C., on his attaining twenty-three, and to raise £1,000 to pay to his other grandson R. C. on his attaining twenty three. And in order that these two grandsons might be properly educated, the testator directed that the sum of £200, until C. W. C. should attain twenty-three, and £100 afterwards, and till R. C. should attain twenty-three, should be raised for that purpose. By the custom of the manor the copy holds which the testator possessed, would descend to his customary heir or heirs, the tenure being gavelkind. The testator had not made any surrender of them to the use of the will. When he died in 1799, his only daughter (the mother of C. W. C. and R. C.) was his customary heir, and on her death, they became her customary heirs.
Held, that the testator's copyhold interest did not pass by the will, but descended to his customary heir.
The annuities created for the maintenance of the grandsons, had fallen into arrear.
Held, that they were charged on the real estate itself, and not merely on the annual rents and profits.
Held, also, that the annuities did not carry
The suit to administer the will was instituted in 1800; a great many delays had taken place; it is a rule of equity to give interest, where there has been unnecessary and vexatious delays; but as the House could not attribute the delays in this case to any particular party in the suit, no interest was allowed.
As part of the decree of the court below was sustained, and part was reversed, no costs were given.
A party is not prevented from appealing against a decree because he did not except to the master's report on which it is founded. Torre v, Browne, 5 H. of L. 555, 565.
The Legal Observer,
SATURDAY, NOVEMBER 15, 1856.
THE PROPOSED LAW UNIVERSITY.
LEGAL EDUCATION OF THE SEVERAL
THERE are evident signs of an intention to bring before Parliament not only the recommendations contained in the Report of the Inns of Court and Chancery Commissioners, but the general subject of legal education. We therefore deem it not inappropriate to resume the consideration of the claims and interests of the second and larger branch of the profession.
We observe by the Annual Report of the Law Amendment Society (which we submitted to our readers last week), that this subject is somewhat fully dwelt upon.* * It is scarcely necessary to say that, although many eminent solicitors are members of the Law Amendment Society, the preponderance in numbers and influence rests with the bar. The Report, however, is ably written, and far less objectionable than many of the productions of the law reformers. It will be recollected that
the commissioners recommended the establishment of a Law University composed of the four Inns of Court; and that no person should in future be called to the bar till he had given proof of his competency by passing a proper examination.
The Council of the Law Amendment Society propose only to prepare a bill for establishing a compulsory examination for students prior to their being called to the bar. They think the bill should be confined to this one object, and that no interference with the internal government of the inns of court should at present be attempted.
It is well observed in the Report that during the last twenty years a large number of offices have been created by act of Parliament, the sole qualification for which is the degree of barrister. Some of the individuals appointed to these offices, it is remarked, have never passed through any test of actual practice. There is consequently no certainty of their possessing any competent knowledge whatever. While civil service examinations are instituted for the clerkships in the different departments of the State, no kind of test is exacted from
See p. 466, ante.
VOL. LII. No. 1,497.
the candidates for a large number of public offices, which, to say the least, are of an equally important character with that of Government clerkships.
It is observable that, although the Royal Commission directed an inquiry into the Inns of Chancery as well as the Inns of Court, the recommendations of the commissioners are limited to the greater inns. Now it may reasonably be inferred that as the Inns of Chancery consist almost exclusively of attorneys and solicitors, it was intended that any improvements in legal education should comprehend both branches of the profession; and, consequently, that if the Legislature should adopt the suggestion of the commissioners in regard to the establishment of a Law University, the whole profession should be included. It has often been observed that the term "university" is scarcely applicable to a single science; and if it were so, that there should be a medical university. either case, however, it is palpable to common sense that all the branches of the profession should be comprehended in the scheme; or otherwise the example of the medical profession should be followed in the legal, by constituting "colleges" for each branch, like the College of Physicians, the College of Surgeons, and the Society of Apothecaries.
There are differences of opinion amongst leading men as to the expediency of the attorney's contenting themselves with an incorporation of the whole body in a collegiate form, or seeking to be included in one general university. There will be an opportunity of fully discussing these questions when the subject comes before Parliament. We do not at present see that there can be any possible objection to the bill proposed by the Law Amendment Society for enforcing an examination of students at law before they are called to the bar. The statute relating to attorneys requires the judges to examine, "by such ways and means as they think proper," all persons applying to be admitted on the rolls of the superior courts, and authorises them to appoint examiners and fix the fees payable for such examination. This is a sufficient legislative precedent to warrant the introduction of the measure; and it is not improbable that when it comes before the House a select committee will be appointed to consider the
Chancery Amendment Bill.-Chancery Registrar's Office Bill.
whole subject, and settle the provisions of a bill for the improvement of legal education in all its departments.
2. In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, it shall also have jurisdiction to award damages to the party injured, by way of compensation for the injury done, in addition to restraining by injunction the commission or continuance of such injury for the future, and such damages may be awarded whether the act complained of shall or shall not have been productive of profit or advantage to the wrongdoer.
3. No person who has obtained an injunction from the Court of Chancery against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, shall be entitled, without the leave of the court, to proceed at law against the party restrained by such injunction to recover damages in respect of any prior or subsequent breach of such covenant, contract, or agreement, or in respect of the commission or continuance of such wrongful act.
4. In all cases in which the Court of Chancery has jurisdiction to entertain an application for the specific performance of any covenant, contract, or agreement for a breach of which damages might be recovered at law, it shall also have jurisdiction to award damages to the party complaining by way of compensation for the loss sustained by the non-performance of such covenant, contract, or agreement up to the time of the performance thereof, in addition to ordering the specific performance of the same.
5. In all cases in which the Court of Chancery has jurisdiction to entertain an application for the specific performance of any covenant, contract, or agreement for a breach of which damages might be recovered at law, it shall also have jurisdiction to award damages to the party complaining by way of compensation for the loss sustained by the non-performance of such covenant, contract, or agreement, though the court may decline to order the specific performance of the same.
6. Any person claiming to be entitled to damages under the provisions of this act may require the court to adjudicate upon his right thereto, and if in the judgment of the court he shall be entitled to damages, the court shall proceed to direct the amount thereof to be assessed.
7. All damages to be awarded under this act shall be assessed by the court itself or by a jury upon an issue quantum damnificatus to be directed by the court for the purpose, and to be tried in like manner as other issues directed by the court are tried, or in such other manner as the court may direct.
8. The powers given by the act 15 & 16 Vic. c. 86, s. 63, of making general rules and orders, shall extend and apply to the mode in which such
damages are to be assessed, and the course of pro
cedure of the court in relation thereto.
CHANCERY REGISTRAR'S OFFICE BILL.
THIS Bill proposes to make further provision for the despatch of business in the Registrar's Office in the Court of Chancery, by the following enactments :
1. It shall be lawful for the Lord Chancellor (in case it shall hereafter appear to be necessary), by writing under his hand, to appoint one additional registrar of the Court of Chancery, and from time to time fill up any vacancy in the said office; and the person to be appointed such additional registrar shall be the senior of the clerks to the registrars of the court for the time being to whom no sufficient objection, to the satisfaction of the Lord Chancellor, shall be made; and such additional registrar shall rank next after the junior of the registrars for the time being appointed under the 5 Vict. c. 5, and the 14 & 15 Vic. c. 83, and shall personally do and perform all the duties and have and enjoy all the rights and privileges belonging to the office of registrar, and shall be subject to the several provisions and penalties contained in or referred to by the said acts relating to the registrars of the said court, and be entitled to the like superannuation or retiring allowance as if he had been appointed registrar by or under the said acts: Provided always, that the acceptance of the office of additional registrar by such senior clerk for the time being shall be without prejudice to all his right of succession to the office of registrar under the said acts.
2. It shall be lawful for each of the registrars of the Court of Chancery, including the registrar, if any, to be appointed under this act, with the approbation of the Lord Chancellor, to appoint an assistant clerk, removable at pleasure, and from time to time to fill up any vacancy in the said office, such assistant clerk to perform such duties in the Registrar's Office as the registrars, with the approbation of the Lord Chancellor, shall direct.
3. No assistant clerk so appointed shall have any right of succession to the office of registrar or clerk to the registrars under the acts now in force regulating the Registrar's Office of the Court of Chancery.
4. From and after the passing of this act no person shall be eligible to be appointed a clerk to the registrars of the Court of Chancery under the acts now in force regulating the registrar's office of the same court who shall not have passed his examination for admission as an attorney or solicitor, or who shall be of the age of twenty-six years or upwards.
5. From and after the passing of this act, the appointment of a person to the office of a clerk to the registrars under the acts now in force regulating the Registrar's Office of the Court of Chancery shall be deemed and taken to be provisional only, and such appointment shall not become absolute unless the same shall be confirmed by the Lord Chancellor at or after the expiration of one year from the time of such provisional appointment.
6. Previously to the confirmation of the appointment of any person as clerk to the registrars, the Lord Chancellor shall require from the senior registrar and a majority of the other registrars a certificate in writing of their approval or disapproval of the conduct of such person during the time which shall have elapsed since his provisional appointment; and the Lord Chancellor may, at his discretion, con
Lectures at the Incorporated Law Society.
firm or annul such provisional appointment; and in case the Lord Chancellor shall annul the same, such appointment shall become altogether void; but nevertheless the clerk so appointed shall be entitled to receive his salary as such clerk up to the time of his appointment so becoming void.
7. Out of the fund placed to the credit of the Accountant General of the Court of Chancery, intituled "The Suitors' Fee Fund Account," there shall be paid to the additional registrar, if any, to be appointed under this act, from the date of his appointment, and also to each of the assistant clerks to be appointed under this act, the salaries or yearly sums following that is to say, to the said additional registrar the salary or net yearly sum of £1250, and also so long as he shall be liable to the expenses of writing and copying the decrees and orders, and the minutes of the decrees and orders of the said court, the yearly sum of £100; and to each such assistant clerk such salary or yearly sum as the Lord Chancellor shall direct, not exceeding the sum of £120 a year in the first instance, but with power to increase the same to any sum not exceeding £200, but so that it shall not be increased in any one year by any greater amount than £20; all such salaries or yearly sums to be paid on the days and in the manner provided by the 15 & 16 Vict. c. 87, with respect to the payment of salaries payable out of the fund standing in the name of the Accountant General of the Court of Chancery to the account intituled "The Suitors' Fee Fund Account."
8. In the event of the appointment of an additional registrar under this act, there shall be paid to the twelfth clerk to the registrars for the time being, from the date of such appointment, out of the said fund standing in the name of the said Accountant General to the said account intituled "The Suitors' Fee Fund Account," the same salary or yearly sum as by the 5 Vict. c. 5, is directed to be paid to the seventh, eighth, ninth, and tenth clerks to the registrars, and payable on the days and in the manner provided by the 15 & 16 Vict.
9. In the construction of this act, the expression "Lord Chancellor" shall mean and include the Lord High Chancellor of Great Britain and the Lord Keeper or Lords Commissioners of the Great Seal of the United Kingdom for the time being.
LECTURES AT THE INCORPORATED LAW SOCIETY.
THE NEW COUNTY COURT ACT.
Mr. Malcolm Kerr, in proceeding to notice the effect of the legislative measures of the last session, dwelt at some length in his first lecture on the effect of the recent County Court Act. Though we are precluded from reporting the whole of the learned gentleman's lecture, we think it will be useful to give a few notes, which we were able to take from his commentary on the 30th section. This is the section which has excited so much attention in the profession, and is so important to the suitors, relating to the costs in actions in the superior courts where judgments by default are obtained for sums not exceeding £20.
The 30th section of the County Court Amendment
Act deprives plaintiffs in the superior courts of costs in actions of contract under £20, when the defendant suffers judgment by default. This enactment has been construed by several of the judges at chambers, and they have arrived at the conclusion that the effect of it is merely to supply an omission in the earlier statutes relating to the county courts. These courts were created by the statute 9 & 10 Vic. c. 95. The 129th section of that act provided that where a verdict should be found for less than £20 in actions of contract, or £5 in an action of tort, the plaintiff should recover the amount of the verdict only, and no costs, unless his case came within the exceptions of the previous section (s. 128) of the same statute. The next statute affecting the county courts (the 13 & 14 Vic. c. 61) is called the Extension Act, because it extended the jurisdiction of these tribunals to £50, Section 11 of that statute virtually repealed, and also re-enacted, in somewhat different terms, section 129 of the first statute. It deprived plaintiffs of costs in the same way, except, firstly, in the cases thereinafter mentioned; and secondly, in the case of a judgment by default.
The second exception, the case of a judgment by default, is what has been provided for by that section of the new statute, which has induced so many learned correspondents of our legal periodicals to rush into print. The result of the decision of the judges on this section is that if the plaintiff can bring himself within the exceptions of sect. 128 of the first county court act, or of those introduced by the subsequent statutes, he will be entitled to an order for his costs.
In order, then, to ascertain in what cases the plaintiff is entitled to this order, we must follow out the section of the Extension Act, and see what are the provisions now in force on the subject. The investigation may not be altogether valueless, nor is this investigation without importance to the solicitor in full practice; for now that something like remuneration has been accorded to those conducting suits in the county court, in cases where the claim exceeds £20, it may reasonably be anticipated, not only that a great many actions which formerly would have been brought in the courts of Westminster, will find their way to the local tribunals, but that questions will arise more frequently on the effect of the statute, depriving plaintiffs in the superior courts of their costs.
The act extending the jurisdiction of the county courts, or the Extension Act, as it is usually called, repealed in effect the 129th sect. of the first statute, and also deprived plaintiffs of costs in two sets of cases-1st, in the cases thereinafter mentioned; 2nd, in the case of judgment by default. The second exception is now repealed, so that plaintiffs are deprived of costs by sect. 11 of the 13 & 14 Vict. c. 61, except in the "excepted cases."
The excepted cases of the statute 13 & 14 Vict. c. 61, are contained in sections 12 and 13. The effect of section 12 was that if the judge or presiding officer at the trial should certify on the back of the record that it appeared to him either that the cause of action was one for which an action could not be brought in the county court, or that there was sufficient cause for bringing the action in the superior court, the plaintiff should have judgment for his
The 13th section provided that if the plaintiff could make it appear to the satisfaction of the court, or a judge at chambers, that the action was brought for a cause in which the superior court had concurrent