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Attorneys to be Admitted-Professional Lists-Notes of the Week.
NOTICES OF ADMISSION in and on the last Day of Hilary Term, 1857, pursuant to Judges' Orders. To whom articled, assigned, &c.
Clerks' Names and Residences.
DISSOLUTIONS OF PROFESSIONAL PARTNERSHIPS.
From September 23rd to November 21st, 1856, both inclusive, with dates when gazetted.
Curwood, Capel Augustus, and Robert Moore, Great Tower-street, City, attorneys-Nov. 18.
Edmonds, George, and Alfred Walter, Birmingham, attorneys and solicitors-Oct. 28.
Heffill, Henry, and Alfred Francis Barnard, Diss, Norfolk, attorneys and solicitors-Oct. 28.
Keightley, Archibald, Robert Cunliffe and Henry Arthur Beaumont, 43, Chancery-lane, attorneys, solicitors, and agents, so far as regards the said Archibald Keightley-Nov
May, James Bowen, and John Park Sweetland, 14, Queensquare, Bloomsbury, attorneys and solicitors-Oct. 31. Ware, John, and Thomas Ware, 98, Kingsland-road, attorneys and solicitors-Oct. 31.
NOTES OF THE WEEK.
been for twelve years one of the commissioners, deputy chairman; Mr. Spencer Ponsonby takes the seat of Mr. Herries.
THE NEW CHIEF JUSTICE.
Ir being known that Sir Alexander Cockburn would take his seat for the first time as Lord Chief Justice, the court was densely crowded, the bar being closely filled by counsel. At half-past ten his lordship entered the court with Mr. Justice Cresswell and Mr. Justice Crowder, when the oaths of allegiance, abjuration, and supremacy were administered by one of the Masters of the Court, the Judges and the whole of the Bar standing. His lordship having subscribed the oaths, bowed to the Bar, and took his seat, calling upon "Brother Channell to move, but as Brother Channell and several other learned brothers had nothing to move, Mr. Serjeant Thomas had the honour of making the first motion before Sir Alexander.
THE NEW PEER.
It is fully believed that Sir Alexander Cockburn will be called to the Upper House by the title of Baron Langton. Mr. Edwin James, at the public meeting at Southampton on Wednesday night, spoke of the Chief Justice as the " now Lord Langton."
BOARD OF INLAND REVENUE.
The vacancies consequent on the death of Mr. Wood have been thus filled up :-Mr. Pressly has been appointed chairman, and Mr. Herries, who has
William Henry Moss.
Francis Richard Southern. F. F. Bulteel.
Mr. Stephen Heelis (re
elected). Henry Brown.
Mr. Edward Richard Anderson (Lord Mayor).
Mr. Serjeant Kinglake, of the Western Circuit, has been appointed Recorder of Bristol, in the room of Sir A. J. Cockburn. Mr. Kinglake is also Recorder of Exeter. He was called to the Bar by the Hon. Society of Lincoln's Inn on the 8th of February, 1830.
Henry Davison, Esq., Barrister-at-Law, has been appointed a puisne judge of the Supreme Court at Madras. Mr. Davison was called to the Bar by the Hon. Society of the Inner Temple on the 6th of May, 1834, and went the South Wales and Chester Circuit.
Robert G. M. Sumner, Esq., Barrister-at-Law, has been appointed Chancellor of the Diocese and Commissary of Surrey, in the room of Dr. Haggard, deceased. Mr. Sumner has also been appointed Steward of the Bishopric of Winchester, in the room of Mr. Gill, deceased. Mr. Sumner was called to the Bar by the Hon. Society of the Inner Temple on the 26th of January, 1853.
Mr. Joseph Phillips, Solicitor, has been appointed Town Clerk of Chippenham.
Recent Decisions: Lord Chancellor ; V. C. Kindersley; V. C. Stuart.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Barnard v. Hunter. Nov. 5, 6, 25, 1856. SOLICITOR-PURCHASE FROM CLIENT-ONUS PROBANDI.
Upon the purchase by a solicitor from his client, the onus lies on the former to show that he has acted with all due caution in the matter towards the latter, and has put him on his guard, and also that the client has ample means of acting independently of the solicitor; and it is not necessary that there should be any intentional imposition on the client in order to set aside such a purchase. THIS was an appeal from the decision of ViceChancellor Stuart, ordering to be delivered up to be cancelled two deeds dated respectively in January and June, 1843, executed by a Mr. Lyde, in favour of the defendant, who was an attorney. It appeared that the defendant was considerably indebted to Mr. Lyde, and had assigned to him a mortgage he held on the life estate of Sir Francis Vincent for £1,987. The bill alleged that in 1843 Mr. Lyde was induced by the defendant to put up this mortgage for sale, when it realised £500, but that such sale was to a nominee of the defendant. On accounts being taken between Mr. Lyde and the defendant, it was ascertained that the latter owed £2,500, for which he gave his bond, and mutual releases were executed, and Mr. Lyde admitted to have received the £500 from the money of the mortgage. He died in September, 1843, having appointed the plaintiff's his executors. The life estate of Sir F. Vincent had been sold by order of the court, and the proceeds, £3,000, were in court.
Wigram and Schomberg for the plaintiffs; Bacon and Southgate for the defendant Hunter; Craig and Hobhouse for the other defendants.
The Lord Chancellor said there was no doubt but that the defendant acted as Mr. Lyde's solicitor, and was looked to for protection and advice by him. A solicitor might purchase from his client provided he came within the rule laid down by Lord Eldon, and ever since followed, and under which the onus laid on the solicitor to show that he had acted with all due caution in the matter towards his client, that he had put him on his guard, and that the client had ample means of acting as it were at arm's length from his solicitor. This had not been the case here, and the transaction could not stand, but it was not meant to insinuate that the defendant had been guilty of any intentional imposition on Mr. Lyde, but only that he was mistaken in supposing Mr. Lyde was able to protect himself. As to the mortgagees, they stood in the same position as the mortgagor. They were not purchasers for value, but claiming under the defendant, and on his claim failing, their rights, through him, also failed. The appeal would, therefore be dismissed with costs.
A testator by his will appointed his wife and his son
William executrix and executor, and gave and bequeathed to them the sum of £1,340 upon trust, to invest in Government or real securities, and to pay the interest thereof to his wife for life, or during widowhood, and after her death or marrying again, to pay the interest to his sons Thomas, Francis, and William, for their natural lives, in equal shares, and from and after their decease, he gave one-third of the principal to the children of each of them in equal shares, to be paid when and as they should respectively attain the age of twenty-one, and he gave the residue to his three sons in three equal shares. Thomas died without issue, and Francis left eleven children, some of whom had died. William was living, and had one child: Held, that he took a life interest in the estate as joint tenant, and that the share of Thomas fell into the residue, and that of Francis and William went to their children per stirpes.
THE testator, Thomas Begley, by his will, dated in Aug. 1827, after the direction of payment of his debts and personal and testamentary expenses by his wife and his son, William Begley Cook, whom he appointed executrix and executor, gave and bequeathed to them the sum of £1,340 upon trust to invest the same on Government or real securities, and to pay the interest thereof to his wife for her life, or during widowhood, and after her death or marrying again to pay the interest to his sons, Thomas and Francis Begley and William Begley Cook, for their natural lives, in equal shares, and from and after the decease of his said two sons and the said William
Begley Cook, then he gave and bequeathed onethird of the said principal sum of £1,340 unto the children of each of them, his said two sons and the said William Begley Cook, in equal shares and proportions, to be paid when and as they should respectively attain the age of twenty-one years; and he gave all the residue of his personal estate to his two sons and Wm. B. Cook, in equal shares and proportions. The testator's son Thomas died in 1838, leaving a widow, but no issue, and Francis died in 1842, leaving eleven children, some of whom were since dead. Wm. Begley Cook was still living, and had one child. A question arose as to the parties entitled.
Hobhouse for the children of Francis; Coleridge for the residuary legatees; Baily and Batten for William Begley Cook; Bristowe for his child.
The Vice-Chancellor said that the intention of the testator was that there should be a joint tenancy in the sons, and that the period of the division of the fund would not be until the death of the survivor of the three sons, when their children would take per stirpes. The share of Thomas, on his death without children, would fall into the residue; one other third would go to the children of Francis, and the remaining third to Mr. Cook's child.
Cast v. Poyser. November 25, 1856.
CREDITOR'S SUIT-CLAIMANT CROSS-EXAMINATION ON AFFIDAVIT-FILING EXAMINER'S CERTIFICATE. Held, that it is not necessary to file the certificate of
Recent Decisions: V. C. Stuart; Court of Queen's Bench.
the examiner of the refusal of a witness to be examined, and obtain an office copy, for the purpose of obtaining the order for his attendance to be examined or to be committed to the Queen's prison, but such order is drawn up on the production of the examiner's certificate. Held, also, that a claimant who has filed an affidavit in support of his debt under a decree in a creditor's suit is liable to be cross-examined thereon before the examiner, under the 15 & 16 Vict. c. 86. s. 40. Ir appeared in this creditor's suit that a Mr. James Mawby had come in under the decree to prove a debt of £270 odd, and had filed affidavits in support thereof. The plaintiff, on June 17, served him with a subpoena to attend before the examiner on July 7 for the purpose of being cross-examined on his affidavits, when he attended but refused to be sworn on the ground that there had been no order for his cross-examination by the judge. An order was then obtained on July 22 for the attendance of Mr. Mawby within four days of the service of the order to give evidence, or in default that he should be committed to the Queen's prison. The examiner had certified that Mr. Mawby had attended but refused to be sworn, and such certificate had been filed at the Report Office.
Malins and Regnier Moore now moved to discharge the order, on the ground that the claimant was not liable to cross-examination, citing the 15 & 16 Vict. c. 86, s. 40, which enacts that "Any party in any cause or matter depending in the said court may, by a writ of subpoena ad testificandum or duces tecum, require the attendance of any witness before an examiner of the said court, or before an examiner specially appointed for the purpose, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding before the court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause; and any party having made an affidavit to be used or which shall be used on any claim, motion, petition, or other proceeding before the Court, shall be bound on being served with such writ to attend before an examiner, for the purpose of being cross-examined: provided always, that the court shall always have a discretionary power of acting upon such evidence as may be before it at the time, and of making such interim orders, or otherwise, as may appear necessary to meet the justice of the case." It was also objected that the examiner's certificate had been improperly filed at the Report Office.
J. Hinde Palmer for the plaintiff was not called en. The Vice-Chancellor read, during the argument, the certificate of the Clerks of Records and Writs that it was not the practice to file the examiner's certificate and take an office copy upon which the order was drawn up, but to do so upon the production of the certificate itself, and overruled the objection as to its having been improperly filed at the Report Office. Upon the other objection his Honour said that the question was one of very great importance to the practice of the court. It amounted to this, whether or not an affidavit made by a person who went in under a decree to prove a debt before the chief clerk was within s. 40 of the 15 & 16 Vict. c. 86, so as to be subject to cross-examination before the examiner. The affidavits enumerated were not merely such as were to be used in the hearing of a cause, but on "any claim, motion, petition, or other proceeding before the court." It was impossible to doubt that
the affidavit in support of a debt was to be used in a proceeding before the court, and the motion to discharge the order would be dismissed with costs.
Court of Queen's Bench.
In re Thomas Cooper, gentleman, one, &c. Nov. 24, 1856.
ATTORNEY-SUSPENSION FROM PRACTICE-DEFACING DOCUMENT IN EVIDENCE.
An attorney was suspended from practising for six calendar months where, on the trial af an appeal from a conviction under the 17 Geo. 3, c. 41, against a prisoner for having possession of raw silk under circumstances of suspicion that it had been stolen, he had defaced an invoice of sale of silk to the person from whom the prisoner stated he had purchased it, by tearing out the word describing the silk, and the invoice was called for by a witness, although it was not intended to be put into evidence.
THIS was a rule nisi granted on November 3 last, to strike Mr. Thomas Cooper, of Congleton, Cheshire, off the roll of attorneys of this court. It appeared that on the trial of an appeal from the conviction of one Hill under the 17 Geo. 3, c. 41, at the Cheshire Quarter Sessions, for having a quantity of raw silk in his possession under circumstances of suspicion that it had been stolen, Mr. Cooper attended as his attorney, and that a witness was called in support of the appeal to prove that he had sold some raw silk to one Selman from whom the prisoner alleged he had purchased, and an invoice was called for to refresh his memory, and was produced by Mr. Cooper, in which, however, the word before silk was torn out, so that the quality could not be ascertained. A policeman then proved that he had seen Mr. Cooper tear the piece of paper out, and the pieces were found under his feet, from which it appeared the silk was tram, and not raw, silk. The magistrates called on Mr. Cooper for an explanation, and it being unsatisfactory, directed this motion to be made.
Sir F. Kelly and Monk showed cause on the ground that the invoice was not intended to be used as evidence, but was called for merely to refresh witness's memory, and who was examined in order to prove the bona fide purchase by Selman of some silk. Welsby, in support, left the case with the Court.
The Court said if it had been proved that Cooper made a premeditated use of the document as evidence he would certainly have been punished. But there was reason to believe there was no premeditated design, bnt that in the hurry of the moment, and seeing the case go against his client, he had resorted to an expedient which was greatly to be condemned, in order to affect the witness's mind. Under all the circumstances, he must be suspended from practising as an attorney of this court for six calendar months.
Recent Decisions: Court of Queen's Bench: Court of Exchequer.
quarter sessions next after it is made and afterwards, with such alterations as they may think fit, to be submitted to, and approved by, the judges of assize: Held, that the sessions could not adjourn the consideration of the table of fees, when presented to a subsequent session.
Where the recognizances of a prisoner and his two sureties to appear, and take his trial, are on the same parchment, quære, whether a fee of 3s. or 1s. is payable to the magistrates' clerk?
THIS was an action against Mr. Anthony Blyth, of Burnham Westgate, Norfolk, as clerk to the magistrates, to recover two penalties of £20 each, for taking fees not authorised by the 26 Geo. 2, c. 14, and the table of fees made thereunder. It appeared that the plaintiff had been taken before the magistrates on a charge of sheep-stealing, and the three recognizances of himself and two others that he would appear to take his trial, were taken on one parchment, for which the defendant charged a fee of 3s. On the trial, the plaintiff obtained a verdict for £40, subject to leave reserved to the defendant to move, and a rule nisi was accordingly obtained on November 5 last. The defendant pleaded that no valid table of fees had been made for the county of Norfolk, and it appeared that the table of fees was made at the Midsummer sessions in the year 1837, but that the Michaelmas sessions did not approve thereof, and adjourned the consideration of the matter until the Epiphany Sessions, 1838. The table was then approved and confirmed at the Spring assizes by the judges.
Byles, S. L., and Couch shewed cause against the rule; O'Malley and Keane in support.
Cur. ad. vult.
The Court said that the question whether the table was approved according to the act of Parliament depended on whether the quarter sessions had a right to adjourn the consideration from the October to the Epiphany sessions. It was clear that the justices in quarter sessions had a general power of adjournment of matters, unless the Legislature required any act to be done at a particular sessions. In that case a limited power would only be given to the quarter sessions, and at that sessions alone could the act be done. It appeared that under the 26 Geo. 2, c. 14, the act of approval was to be exercised at the next sessions after the table of fees was made, and was afterwards, with such alterations as they might think fit, to be submitted to, and approved by, the judges of assize. The table here was not approved according to the act of Parliament at the Epiphany sessions, and was not, therefore, in force, and the defendant was entitled to the verdict. The rule was, therefore, made absolute.
Jennings v. Dorritt. Nov. 25, 1856.
COMMON LAW PROCEDURE ACT, 1854-MATTERS OF ACCOUNT-REFERENCE AT NISI PRIUS.
On the trial of an action a reference to arbitration was directed by the judge under the 17 & 18 Vict. c. 125, s. 3, upon the subject in dispute appearing to be matter of account. It appeared that the defendant had virtually consented thereto. A rule was discharged with costs to set aside the order of reference.
THIS was a rule nisi granted on November 6 last, to set aside an order made by Pollock, Lord Chief
Baron, referring this cause to arbitration, upon its appearing that the matter in dispute was one of account. The rule had been obtained upon the ground that the defendant never consented to the reference.
By the 17 & 18 Vict. 125, s. 3, it is enacted that "If it be made appear, at any time after the issuing of the writ, to the satisfaction of the court or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to the judge of any county court, upon such terms as to costs and otherwise as such court or
judge shall think reasonable; and the decision or order of such court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred."
Shee, S. L., and C. G. Addison, showed cause on the ground that the defendant had virtually consented to the reference; Hawkins in support. The Court discharged the rule with costs.
MUNICIPAL CORPORATIONS ACT- HOUSE ATTORNEY'S OFFICES-BURGESS ROLL. Held, that a building, consisting of four rooms, &c., occupied by an attorney as his offices is a "house" within the 5 & 6 W. 4, c. 76 (Municipal Corporations Act), entitling him to be on the burgess roll.
THIS was a rule nisi obtained on November 6th last for a mandamus on the defendant to insert the name of Mr. Richard Hare, an attorney, on the burgess list. It appeared that in 1855 he built a house containing four rooms, &c., which he occupied as offices, and requested the overseer to describe it in the list as a house, but it was described as offices, whereupon the defendant expunged the name.
Sir F. Kelly and Garth showed cause against the rule.
The Court (without calling on Sir F. Thesiger and Stork in support of the rule) said that the building in question was a "house" within the meaning of the Municipal Corporations Act, 5 & 6 W. 4, c. 76, and made the rule absolute for a peremptory mandamus.
Court of Exchequer.
Hunter v. Gibbons, November 24, 1856. COMMON LAW PROCEDURE ACT, 1854-EQUITABLE REPLICATION OF FRAUD TO PLEA OF STATUTE OF LIMITATIONS.
A rule was discharged with costs for leave to the plaintiff to reply equitably, under the 17 & 18 Vict. c. 125, s. 15, to a plea of the Statute of Limitations, in an action of trespass to a mine, and which replication was to the effect, that the acts of the defendant had been fraudulently concealed by him from the plaintiff.
Recent Decisions: Exchequer Chamber; Crown Cases Reserved.
THIS was a rule nisi, granted on November 19 last, for leave to reply equitably to a plea of the Statute of Limitations in this action for trespass to a mine, and which replication was to the effect that the acts of the defendant had been fraudulently concealed by him from the plaintiff. The application had been made to, and refused by, Martin, B., at chambers.
By the 17 & 18 Vict. c. 125, s. 85, it is enacted that "the plaintiff may reply, in answer to any plea of the defendant, facts whieh avoid such plea upon equitable grounds, provided that such replication shall begin the words 'for replication on equitable grounds,' or words to the like effect."
Keating and Ficher (of the chancery bar) shewed cause against the rule, which was supported by Bovill and Phipson.
The Court said that it was doubtful on the authorities, whether fraud was an answer to the Statute of Limitations in a court of equity. As the enactment of that statute was binding on a court of law, this court would not interfere, and the rather as the plaintiff had the remedy in his own hands, by going in the first instance to a court of equity. The rule would be discharged with costs.
On an appeal under the 17 & 18 Vict. c. 125, s. 34, against toe refusal of the Court below to enter a verdict pursuant to leave reserved at lhe trial, the practice is pro formâ a motion for a rule, but cause is to be shewn in the first instance, when any preliminary objection to the appeal may be taken.
The argument in such cases is limited to one counsel only.
Where the decision of the Court below is reported the Court of Error should be furnished with the name of the Reports.
On the trial the jury were directed to find for the defendant. but leave was reserved to move to enter a verdict for the plaintiff the Court to be at liberty to draw any inferences from the facts: Held, that the right of appeal existed.
THIS was an appeal from the decision of the Court of Exchequer refusing to enter a verdict for the plaintiff in this action to recover the value of certain tartaric acid in the defendant's possession, pursuant to leave reserved on the trial by Pollock, L.C.B., and with liberty to draw inferences of fact.
By the 17 & 18 Vict. c. 125, s. 34, it is enacted that "in all cases of rules to enter a verdict or nonsuit upon a point reserved at the trial, if the rule to shew cause be refused or granted and then discharged or made absolute, the party decided against may appeal."
Sir F. Thesiger for the defendants; Hill for the plaintiff.
The Court said, that by s. 40 it was enacted that, "when the appeal is from the refusal of the court below to grant a rule to show cause, and the Court of
*See Imperial Gas Company v. London Gas Company, 23 Law J., N. S., Exch., 303; Blair v. Bromley, 3 Hare, 542.
Appeal grant such rule, such rule shall be argued and disposed of in the Court of Appeal." The practice would therefore be that pro formâ there would be a motion for a rule, but cause must always be shown in the first instance, and then any preliminary objection to the appeal might be taken. The argument in such cases was to be limited to one counsel only.
Coleridge, J., said that it would be desirable in cases where the arguments and judgments in the court below were reported, that the judges of this court should be furnished with the names of the books in which the reports could be found.
The Court further said, that although leave was reserved to the Court to enter a verdict, with liberty to draw any inference from the facts, the case was within the act, and a right of appeal existed.
The motion for a rule was then made and granted, and after cause had been shown the Court took time to consider.
Crown Cases Reserved.
Regina v. Mainwaring. Nov. 22, 1856.
INDICTMENT FOR BIGAMY-PROOF OF MARRIAGE AT DULY LICENSED CHAPEL.
A marriage was held on a conviction for bigamy to be sufficiently proved by the production of certificates purporting to be copies of the register of marriages in a Wesleyan chapel, and to be obtained from the superintendent registrar, who also signed a statement that the chapel was duly licensed, and which had been compared with the book by a witness, who stated it was correctly extracted. THIS was an indictment for bigamy, on which the prisoner was convicted. subject to the opinion of this court, upon the question whether the marriage was sufficiently proved by the production of certificates purporting to be copies of the register of marriages in a Wesleyan chapel, and to be obtained from the superintendent registrar, who also signed a statement that the chapel was duly licensed. This had been compared with the book by a witness, who stated it was correctly extracted.
G. Browne for the prisoner; M Mahon in support of the conviction.
The Court said that the fact of the marriage, and the presence of the registrar, had been proved, as also that the chapel was duly licensed. The conviction was, therefore, affirmed.
Regina v. Spencer and others. Nov. 22, 1856.
INDICTMENT FOR ARSON-STACK OF GRAIN
A conviction on an indictment for setting fire to a stack of "grain" was affirmed, although such stack consisted of "flax”—the jury finding that flax seed was grain.
THIS was an indictment for setting fire to a stack of grain, and on the trial before Bramwell, B., it appeared that the stack consisted of flax. The jury found that flax-seed was grain and returned a verdict of guilty, and the point was reserved whether the conviction was right.
The Court affirmed the conviction.