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Examination at the Incorporated Law Society-Notes of the Week.
RENEWED NOTICES OF ADMISSION.
Last Day of Michaelmas Term, pursuant to the Rule of Court of Hilary Term, 1853.
Bartleet, Charles, 24, Clarence-street, Islington;
Bowers, Barclay George 35, North-street, New-road,
Hordern, Alexander Radcliffe, 3, South Molton-street, Bond-street
Hustler, William Octavius, Halsted... Leggett, Francis Charles, 2, Charlwood-place, Warwick-place, Pimlico; and Upper Bedford-place ... Miller, James Russell, 24, Eastcheap; Leytonstone; and Wanstead Nash, Alfred Dormor, 14, Great Coram-street, Russell-square Simpson, Henry Blythe, 46, Great Ormond-street; and Derby Sugden, John, the Younger, 36, College-place, Camden Town; Arlington-street; and Knedlington, near Howden ... Thompson, George, 30, Clarence-street, Islington; and York Thorpe, Roby Liddington, Oakley Cottage, Werrington-street, Oakley-square; and Great Collegestreet and Pratt-street, Camden Town.
A. Ryland, Birmingham.
B. W. Rawlings, deceased, John Street; B. F. Watson, Lincoln's-inn-fields.
T. P. Lowe, Nantwich.
W. Taylor, deceased, Featherstone-buildings; D Gray, Lincoln's-inn-fields.
E. Peters, York.
A. G. Eastwood, Stoney Royd.
A. Phillips, Shiffnal.
H. C. Kingsford, Canterbury.
O. Hustler, deceased, Halsted; W. H. Sams, Clare.
J. E. Buller, Lincoln's-inn-fields.
J. Miller, Eastcheap.
J. I. Wathen, Bedford-square; H. Crocker, Chancery-lane; A. Mayhew, Carey-street.
J. J. Simpson, Derby.
G. England, Howden.
L. Thompson, York.
M. Browne, Nottingham.
J. T. Church, Bedford-row.
J. F. B. Fay, Ruthin; J. P. Jones, Ruthin; T. C. Campbell, Essex-street.
EXAMINATIONS AT THE INCORPO- | been appointed Recorder of Faversham, in the room
of William Clarkson, Esq., deceased. Mr. Alderson was called to the bar by the Honourable Society of the Inner Temple on the 17th of June, 1851, and went the Home Circuit.
T. D. Moleyns, Esq., Q.C. of the Munster Circuit, has been appointed Crown Prosecutor at Limerick, in the room of Michael Barry, Esq., promoted to a judgeship at Perth, Western Australia. Mr. De Moleyns was called to the Bar in Hilary Term, 1831.
Denis Caulfield Heron, Esq., has been appointed a Crown Prosecutor for the county of Clare, in the room of Thomas Fitzgerald, Esq., Q.C. Mr. Heron was called to the Bar in Hilary Term, 1848.
The Lord Bishop of Lincoln has appointed Dr. Travers Twiss to the office of Chancellor of the Diocess of Lincoln, vacant by the decease of Dr. Haggard.
We have reason to believe (says the Globe) that Mr. Pressly, deputy chairman of the Board of Inland Revenue, will succeed to the chairmanship of that board, vacant by the death of Mr. John Wood.
MR. Charles Spilman Todd, solicitor, has been appointed Sheriff of Hull.
Mr. George White, solicitor, has been appointed Registrar of the Epsom County Court.
Edward P. Alderson, Esq., Barrister-at-Law, has
RESULT OF THE MICHAELMAS TERM EXAMINATION.
At the examination of candidates, which took place on the 12th instant, at the Hall of the Incorporated Law Society, 165 notices had been received, including a considerable number whose names did
Recent Decisions: Lord Chancellor; Vice-Chancellor Kindersley.
not appear in the printed list of admissions. these only 120 perfected their testimonials of service, and were entitled to be examined. On the day of examination three more failed to attend; and, after full consideration of all the papers, which occupied nearly the whole of the next day, the examiners passed 100, and postponed 17. The examiners of the Term were Sir Archer Denman Croft Bart., Mr. Bolton, Mr. Coverdale, Mr. Sharpe, and Mr. Sudlow.
ADMISSION OF SOLICITORS.
The Master of the Rolls has appointed Tuesday, the 25th of November, 1856, at the Rolls Court, Chancery-lane, at four in the afternoon, for swearing solicitors.
Every person desirous of being sworn on the above day must leave his common law admission or his certificate of practice for the current year, at the Secretary's Office, Rolls Yard, Chancery-lane, on or before Monday, the 24th of November instant.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Wearing v. Ellis. November 19, 1856.
RECOVERY OF PROPERTY FROM ASSIGNEES AFTER DEBTS SATISFIED.
Held, dismissing with costs an appeal from the ViceChancellor Stuart, that an insolvent who had taken the benefit of the Insolvent Act, 5 & 6 Vict. c. 116, whereby his property became vested in his official assignee, was entitled after his creditors had been satisfied to maintain a suit to recover back property which had been improperly conveyed away by his official assignee, without first obtaining a revesting order from the Insolvent Court. Ir appeared that in 1843 a Mr. Harrison took the benefit of the Insolvent Act, 5 & 6 Vic. c. 116, and that he was entitled to certain property for an estate in fee-simple in reversion. The creditors in 1844 accepted a composition of 3s. 6d. in the pound, and executed a release in full. In 1846 the official assignee conveyed the property, which had not then fallen into possession, to a Mr. Cowburn, as was admitted, without consideration. Mr. Harrison entered into possession on the death of the tenant for life, and continued in possession until his death, when he devised by his will all his property to the plaintiff, who filed this bill against Mr. Cowburn's assignee for a reconveyance. There was no revesting order obtained from the Insolvent Court. The Vice-Chancellor Stuart had decreed as prayed by the will, whereupon this appeal was presented.
Malins and Prendergast in support; Wigram and Toller contrá. [Cur. ad. vult.]
The Lord Chancellor said that the right of a bankrupt depended upon the 6 Geo. 4, c. 16, s. 132, which directed that the assignees should account to him for any surplus of his real and personal estate remaining after payment of his creditors, and should pay the same to him. This clause gave the bankrupt a right of action against the assignees, although it did not appear the point had been decided, and with regard to property not capable of being handed over such as real estate, the assignees became trustees for the bankrupt (Charman v. Charman, 14 Ves. 580). The question then was whether the same rule held good in insolvency? By the 1 & 2 Vic. c. 110, s. 92, it was provided that the commissioner after the insolvent's debts had been paid, might order the warrant of attorney given by the insolvent to be cancelled, and all his property to be revested in
Now all proceedings under the 5 & 6 Vic. e. 116, prior to the 10 & 11 Vic. c. 102, were to be
taken in the Court of Bankruptcy, and the general effect of the act was to assimilate such proceedings to bankruptcy. Such being so, the decision of Sir William Grant in Charman v. Charman was exactly in point. Nor did it make any difference because the creditors had not been paid 20s. in the pound, as they had been paid what satisfied them, and they had no further claim upon the insolvent. The doctrine to be gleaned from the cases cited of Heath v. Chadwick, 2 Phill. 649; Rochfort v. Battersby, 2 H. of L. Cas. 388; and Preston v. Wilson, 5 Hare 185, was that no other Court than that of Bankruptcy or Insolvency had any right to interfere where the legislature had vested in them the supreme power. But here all the debts of the insolvent had been satisfied, and the assignee had executed an assignment of the property, and the doctrine of non-intervention could not be upheld. The creditors could not be heard to contest the question, nor the assignee. The appeal would therefore be dismissed with costs.
SPECIFIC PERFORMANCE-INTEREST ON PURCHASE
By conditions on a contract for the purchase of certain property, it was provided that a deposit of £10 per cent. should be paid immediately, and the remainder of the purchase money on October 11, 1855, when the purchase was to be completed, and that if from any cause whatsoever the purchase should not then be completed, the purchaser should pay interest at £5 per cent., without prejudice to the vendor's right to re-sell. The vendor died two days before October 11, and this bill for a specific performance had been filed, and the purchase money paid into court: Held, that the purchaser was liable to pay interest on the purchase money.
THIS was a bill for the specific performance of a contract for the purchase of certain property in Kent, subject to certain conditions, which inter alia, provided that a deposit of £10 per cent. should be immediately paid, and the remainder of the purchasemoney on October 11, 1855, when the purchase was to be completed, and that if from any cause whatsoever the purchase should not then be completed, the purchaser should pay interest at £5 per cent., without prejudice to the vendor's right to re-sell. The vendor died two days before October 11, and
Recent Decisions: Vice-Chancellor Stuart; Vice-Chancellor Wood; Queen's Bench.
this bill had been filed, and the purchase money paid into court.
Anderson and G. W. Collins for the plaintiff, the purchaser; Bevir for the defendant.
The Vice-Chancellor said that the event of the vendor's death, which had prevented the completion of the purchase, was within the terms from any cause whatsoever, and that the purchaser was liable to pay interest, notwithstanding the payment into court. Each party to bear their own costs of this suit.
Daniell v. Daniell. Nov. 14, 1856.
PAYMENT OF MONEY OUT OF COURT-ORDER AT CHAMBERS-PETITION.
An order will not be made at chambers for the payment out of court of a sum exceeding £300, although such sum is standing to a separate account, and by the decree on further directions the petitioner was declared entitled thereto.
By the decree on further directions in the suit the petitioner was declared entitled to a sum of £646 odd, which was standing to his separate acconnt, and this petition was presented for its payment out of
Charles Webster in support.
The Vice-Chancellor said that but for the direction recently given by the equity judges to their chief clerks not to make orders at chambers for the payment out of court of any sum above £300, a petition would not have been required, and the order was accordingly made.
M'Culloch v. Gregory. November 13, 1856.
WILL-ESTABLISHING AS AGAINST HEIR-PURCHASER TITLE.
A will was disputed by the sole executor under a previous will, but proof was granted to the later will. A compromise was afterwards entered into pending an appeal from this decision: Held, that a purchaser, under the decree in a suit to protect the personal estate pending litigation and to carry the trusts of the will into execution, was not entitled to claim the will to be established against the heir and next-of-kin.
Such proof is only required where there is an intestacy, or litigation by the heir.
It appeared that upon the death of Mr. John Thompson in 1843 a will dated in March, 1843, was offered for probate by Mrs. Le Bas, the sole next-of-kin and heiress-at-law, and opposed by Mr. Barnard Gregory, who claimed as sole executor under a former will dated in February, 1843. In June, 1846, the Judge of the Prerogative Court decided in favour of the will of March, 1843, and against his decision Mr. Gregory appealed. Pending the appeal, however, Mrs. Le Bas and Mr. Gregory intermarried, and the plaintiffs, who were the parties beneficially interested under the will, were called upon to intervene. They also filed a bill in this Court to protect the personal
estate and to establish the will as against Mrs. Gregory, and to carry its trusts into execution. compromise was, however, entered into, whereby the defendants agreed to pay to the plaintiffs £15,000 in consideration of the conveyance of all their estate and interest under the will, such sum until payment to remain a charge on the real and personal estate. The money was not paid, and in 1852 a sale was ordered by the decree. The purchaser claimed to have proved the heirship of Mrs. Gregory, and objected to the evidence furnished as insufficient, and on the chief clerk finding such proof was sufficient, this appeal was presented.
Willcock and Batten in support; Rolt and W. P. Murray contrà.
The Vice-Chancellor said that although the case of Grove v. Bastard, 2 Phill. 619, was an authority to shew that, where there were grave circumstances of suspicion on a will and there had been litigation or threatened litigation by the heir, a purchaser would not be compelled to accept the title until the will had been established, yet in the present case the litigation had not been on the ground of intestacy, but between two parties under two wills. It would be a most mischievous doctrine to allow a purchaser in every case to take the objection now set up. In this case the purchaser was not entitled to ask the will to be established nor to require the proof of heirship. The motion would therefore be refused with costs.
Court of Queen's Bench
BURGESS LIST-NON-PAYMENT OF POOR-RATE.
Held, that a poor-rate is payable as soon as it is made and published, and no personal notice or demand is required for the purpose of disentitling a person not paying the same to be on the Burgess List under the 5 & 6 Wm. 4, c. 76, s. 9.
THIS was a motion for a rule nisi upon the Mayor of Sunderland to amend the Burgess List by inserting the applicant's name. It appeared that his name had been struck out for non-payment of a poor-rate which had been made in February, 1856, although no demand was made for payment nor notice given of the rate having been made.
J. A. Russell in support.
The Court said that the rate was payable under the 5 & 6 Wm. 4, c. 76, s. 9, so soon as it was made and published, and that no personal notice or demand was required. The rule was accordingly refused.
Regina v. Mayor, &c., of Sunderland. November 13, 1856.
CLERK TO PAVING, &C., COMMISSIONERS-REMOVAL -OFFICE OF EQUAL PERMANENCE AND VALUE.
The clerk to paving, &c., commissioners under the 50 Geo. 3, c. 25, was removable upon twenty days' notice. By the 14 & 15 Vict. c. 67, the duties of the commissioners were transferred to the corporation, and the clerk was to receive a
Recent Decisions: Court of Common Pleas; Court of Exchequer.
compensation unless appointed to an office of equal permanence and value: Held, that an appointment as clerk to one of the committees of the council from which he could be removed without notice was not such an office, and a mandamus was awarded for compensation.
Ir appeared that the prosecutor Mr. Charles Taylor held the office of clerk to the commissioners for lighting, paving, and watching the town of Bishop's Wearmouth under the 50 Geo. 3, c. 25, and was removable upon twenty days' notice, and by the 14 & 15 Vict. c. 67, the duties of the commissioners were transferred to the defendants-it being provided that the clerk should be entitled to compensation unless appointed to an office of equal value and permanence. The defendants' town clerk performed the duties, but they paid to the prosecutor his former salary of £25 a-year for about two years, and then appointed him as clerk to one of the committees of the council. This mandamus had been obtained for compensation, and was tried before Lord Campbell, C.J., at the Middlesex Sittings after Trinity Term last, when the prosecutor obtained a verdict, subject to this rule.
Manisty shewed cause; H. Hill and W. D. Seymour in support.
The Court said that under the former act the prosecutor could not be removed without notice, while under his new appointment he might be discharged without notice. The new office was therefore not one of equal value and permanence, and the rule must be discharged, and a peremptory mandamus be awarded.
In re Chandler. November 17, 1856.
ATTORNEY-STRIKING OFF THE ROLL-RULE NISI.
In the Court of Queen's Bench the rule to strike an attorney off the Roll, who has been removed from the Chancery Roll for misconduct, is nisi only.
THIS was a motion for a rule nisi to strike Mr. Benjamin Chandler, jun., of Sherborne, Dorsetshire, off the Roll of this Court. It appeared from the affidavit in support that he had been struck off the Chancery Roll for misconduct.
H. J. Hodgson for the Incorporated Law Society, in support, said that in the Courts of Common Pleas and Exchequer the rule was absolute in the first instance.
The Court, however, said there was no reason to depart from the practice of this Court, and the rule would be nisi only.
Court of Common Pleas.
Barclay v. Perrott and others. November 14, 1856.
BOROUGH LIST OF VOTERS-NOTICE OF OBJECTION -DIRECTION.
The stamped duplicate notice of objection under the 6 Vict. c. 18, s. 100, to the respondent's name being on the list of borough voters was held sufficient, although it did not shew on the face of it the voter's place of abode.
Held, that the delivery of a notice of objection to the postmaster not within the regular hours of keeping open the post-office fixed by the Post-master General, is not a good service under the 6 Vict. c. 18, s. 100.
THIS was an appeal from the decision of the revising barrister, holding that the delivery of a notice of objection to the postmaster not within the regular hours fixed by the Postmaster-General for keeping open the post-office, was not a sufficient service under the 6 Vict. c. 18, s. 100.
Kinglake, S. L., in support, referred to Bayley v. Overseers of Nantwich, 2 Com. B. 118; Godsell v. Innous, 17 Com. B. 295.
The Court (without calling on Byles, S. L., contra) said that one of the requirements of the statute was that notices of objection should be delivered at the post-office within the regular hours, in order to be a good notice, and the appeal was accordingly dismissed with costs.
Court of Exchequer.
Kent v. Thomas. Nov. 17, 1856.
An attorney who acts for both mortgagor and mortgagee can give a discharge so far as the interest is concerned, but he is not authorised to receive and give a discharge for the principal. Where he had done so, and appropriated to his use, held, that the mortgagor was liable.
THIS was a special case by order of a judge at nisi prius upon the question whether, where an attorney acted for both mortgagor and mortgagee, and had received and given a discharge for the principal and interest, and appropriated the same to his own use, the mortgagee or the mortgagor was liable.
M. Chambers for the plaintiff, the mortgagee; Bovill for the defendant and mortgagor.
The Court said that so far as the interest was concerned the attorney was authorised to receive it for the plaintiff, but that he had clearly no authority to receive the capital on his behalf. The plaintiff was therefore entitled to judgment.
The Legal Observer,
SATURDAY, NOVEMBER 29, 1856.
THE ROYAL COMMISSION OF INQUIRY INTO THE ADMINISTRATION OF JUSTICE IN THE COMMON LAW COURTS.
THE Old Courts at Westminster are now beginning to feel the effects of the extended jurisdiction of the county courts. Whilst those courts were confined to small debts and demands not exceeding £20, and whilst even below that sum there was a concurrent jurisdiction in the Superior Courts in several classes of cases, the diminution of the number of actions was not very sensibly felt; but now, although the wealth and population of the country has largely increased since the establishment of the Small Debt Courts, the falling-off has become palpable both at the Assizes, the Sittings in London and Middlesex, and the business in banc. Moreover, this result is peculiarly remarkable when we consider the amount of new business delegated from year to year to the several courts, and especially the Queen's Bench, in carrying into effect numerous modern statutes.
We must again take the liberty of reminding our readers that the county courts have been puffed into a false popularity. There are thousands of creditors who abandon their claims rather than incur the loss of time, the inconvenience, the annoyance, and the uncertainty of these courts. And what is very remarkable, some of the cheap daily papers, whose readers, it may be supposed, are amongst those who would most rejoice in such subordinate courts, complain bitterly of their inefficiency. They say
"It is bad enough to be out of pocket by a debtor who will not pay, but when redress and recovery are sought, a suitor is obliged to pay down in cash at a county court, before a summons will be granted, a sum which, to a poor man, is almost a prohibition to the recovery of the original debt. Through every process there are fees; and, worse than all-since to a poor man time is money,-he must expect to lose one day in waiting at a court before a case is called The reason is, that the county court judge fixes a few days in a week to hear all cases accumulated upon the list, instead of sitting, as he should, and, as the judges of the superior courts do, every day. The consequence is, that upon hearing days the court is crowded to excess with suitors, and in the mass of business to be decided no man has any chance of a VOL. LII. No. 1,499.
calm or deliberate hearing of his case. All is hurryscurry, and to get through the list of arrears one way or the other, and whichever may be the speediest way, is the chief him of the court. So much for cheap and speedy justice at a man's own door."
The state and progress of business in the superior courts of common law, particularly during the term which closed last Tuesday, has given rise to several important suggestions for the improvement of the administration of justice, both in the courts at Westminster and on the circuits. It appears that during the last term one or other of the common law courts have risen at an early hour in the day, there being no business in readiness to be brought before them. The newspapers abound with reports and remarks to the following effect :
"The courts, for lack of business, rose at an early hour, and expressed a strong intimation of dissatisfaction, accompanied with the expression of a firm determination to call on the cases in their order, and to strike out all those in which the parties were not present by their respective counsel."
"The court intimated that they expected the bar to be ready when the rules in the new trial paper were returnable."
On the last day of Term, the Lord Chief Justice of the Court of Queen's Bench said :
"That henceforth there would not be a judge sitting to hear motions in the Bail Court, excepting on the last two days of Term. There was now ample opportunity of making motions in this court, and it
was desirable that the court which had to decide should have all the circumstances of the case laid before it on the application for the rule nisi. On the last two days of term, one of the judges would sit in the Bail Court, but not on any other day."
Then we are informed on the authority of a contemporary, usually possessed of early and accurate information,* that a Royal commission has been issued to inquire into the present arrangements for transacting the civil and criminal business of the superior courts of law at Westminster, and into the manner and times of holding the circuits, and to report to her Majesty whether any and what improvements can be effected therein, and particularly whether the number of the common law judges can be reduced without detriment to the public service.