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Time for Redemption-The Statutes of LimitationThe Persons entitled to Redeem-The Right of the Wife and Surety-Of Joint Tenants, &c.-Of Tenants in Tail for Life, and Remaindermen-Of Guardians and Committees-In Cases of Forfeiture and Escheat -Of the Mortgagor's Assignees-Of Judgment and other Creditors-Of Assignees in Bankruptcy, &c.Of Devisees, Real and Personal Representatives-Of Members of Benefit Building Societies."
the Mortgagor Against the Mortgagee and his Assignees Against the Mortgagee in Possession-The Manner of Charging the Mortgagee in PossessionAccounts against Mortgagee in Possession of MinesOf Allowances to the Mortgagee-Of taking the Account of Rests-Of carrying on the Accounts. PART II. Of Accounts of Interest-Who bound to Pay and entitled to Receive-Of Interest on Arrears of Annuities, and on Bond and Judgment DebtsOf the Conversion of Interest in Arrear into Prin
3rd. Next he treats of Foreclosure and Sale; cipal-Of computing subsequent Interest—The Right
"Of the Nature of the Remedy by Foreclosure, and the Form of the Bill-The Right to the Mortgage Debt-The Time for Foreclosure-The Statute of Limitations. OF SALE: Under 15 & 16 Vict. c. 86-Under the original and other Powers of the Court-Of proving the Security at the Hearing."
4th. Then comes the consideration of the proper and necessary Parties.
"(1.) Of the Persons interested in the Equity of Redemption - The Mortgagor-His Assignees in Bankruptcy, &c.-His Assignees by Conveyance, &c. -His Devisee and Heir-Her Personal Representatives. (2.) Of the Persons claiming Interests in the Security and Debt-The Mortgagee-Assignees and Devisees-Heir-Personal Representative. (3.) Of the Persons beneficially interested in the Equity of Redemption, or in the Security and Debt. (4.) Of Assignees pendente lite of the Mortgagor and Mortgagee."
to set off Arrears of Interest-The Statutes of Limitation-The Rate of Interest reserved, and UsuryOf staying Interest by Tender. PART III. Of Accounts of Costs-Of the general Right of the Mortgagee to Costs-The Mortgagee's Right to Costs, and Expenses disbursed-His Liability in respect of the Loss of Deeds-Of the Costs of Reconveyance— The Costs of unnecessary Parties-The Costs under a Decree for Sale-The Costs of Disclaiming Parties -Of Equitable Mortgagees-Of adding Costs to the Debt after Decree-Of Solicitor's Costs-Of Costs on staying Proceedings."
9th. Of the Decree and matters arising thereout, the author thus treats :
"Of the Nature and Form of the Decree-The Time allowed for Payment-Of Tender-Of enlarging the Time to redeem, and opening the Foreclosure Of the Conveyance and Delivery of the Estate, on Redemption, Foreclosure, or Sale The Right to Policies of Insurance, effected as Collateral Securities-Of the Decree for Sale Of the Decree against Infants and 5th. The appointment of a Receiver is next Lunatics-Against Married Women-Of the Deliconsidered.
"As to the Appointment-The Nature thereofFor and Against whom-Of what Property-At what Stage of the Cause-Who may be AppointedThe Receiver's Authority-His Right to Apply to the Court-His Possession His Expenditure His Allowances The Rights of Consignees Of Passing the Receiver's Accounts-Payment of Balances, and Liability to Interest-Discharge of the Receiver."
6th. Next the subject of Notice is examined.
"Nature of-To whom should be given—Plea of Purchase without Notice-Of Constructive Notice -By Negligence and Fraud-Between Principal and Agent-By Recital or Reference-By Tenancy-In Dealings with Executors, Administrators, and Trustees By Records-Acts of Parliament-Court Rolls -Registration of Deeds, Lis pendens, Judgments, and Decrees."
7th. From this, the author proceeds to Priority, under the following heads:
“PART I. Of Legal Priority, and herein of Defective Assurances and the Doctrine of Tacking. PART II. Of Equitable Priority, and herein of the Right to Hold several Securities and of Marshalling Securities. PART III. Of Priority in Securities upon Chattels Personal and Choses in Action, and upon Ships under the Maritime Law. PART IV. Of Priority by Statute, and herein of the Registration, Shipping, Judgment, and Bankrupt and Insolvent Acts. PART V. Of the Loss of Priority by Waiver, Merger, Neglect, and Fraud."
8th. Accounts generally against the mortgagor and mortgagee, are thus noticed :
"Who Bound by Accounts-Of Accounts against
very, Custody, and Production of the Title Deeds— The Loss of the Title Deeds-Of the Order absolute
for Foreclosure-The Dismissal of the Bill for Redemption-Staying Proceedings."
It is scarcely necessary to observe in regard to the competition which prevails amongst legal as amongst literary authors, that such competition is for the most part unavoidable, Even supposing that the first author has, at the time of publishing his work, exhausted the subject, by including within it every statute and decision bearing on the points under consideration, new statutes are passed, and new decisions made, so that if the original author does not bring out a new edition, another author, after a reasonable interval, may be entitled to compile a new work, and post up the law to the latest period.
Again, although the original author may continue to publish new editions of his work as rapidly as requisite, still another author may be justifled in writing a new treatise on the same subject, taking a different view of the effect of the legislative provisions and judicial decisions-adopting a new arrangement of the materials, and altogether compiling a bona fide new work, resorting to the original authorities, and drawing, by his own labour (to use a phrase of Lord Eldon), from the primary wells of law, and not using other people's buckets. We know not that any one can reasonably complain of such learned labour, except that it is somewhat unkind, and displays a want of originality of thought, to follow in the footsteps of a predecessor. The
Law of Costs-Law of Attorneys and Solicitors.
reproach, however, will of course depend on the amount of the defects of the original work, and the importance of the new matter incorporated into the rival publication.
The contents of Mr. Fisher's volume, which we have set forth, will enable our readers to consider, not only the plan adopted in its composition, but to ascertain the various additions which are comprised in the treatise, when compared with former expositors of this branch of the law. Already we hear that Mr. Fisher's volume is favourably spoken of by competent judges.
LAW OF COSTS.
OF STRIKING OUT OR AMENDING PLEAS.
AFTER the pleas had been delivered in an action, the plaintiff obtained a rule nisi, under the 17 & 18 Vict. c. 125, s. 52, to strike out or amend the first plea, "the same being framed so as to prejudice, embarrass, and delay the fair trial of the cause," or to strike out the first or second plea, "as founded on the same subject matter."
Upon the argument, on shewing cause against the rule, the court suggested the mode in which the plea ought to have been framed; and a rule was made absolute, whereby the first plea was ordered to be amended in a particular way, and the residue of the rule was discharged. No mention was, however, made of costs.
The proceedings were afterwards ordered to be stayed upon payment of the debt, and costs to be taxed, and on the taxation the master refused to allow the plaintiff the costs of the rule nisi and absolute, and of the proceedings in relation to the amendment of the pleas.
A rule was then obtained to review the taxation. Alderson, B., said: "If a rule is made absolute in its terms, the party obtaining it gets the costs as costs in the cause. If it is varied, the costs do not
follow as of course; but if the party obtaining it wishes any special terms, he should ask to have them inserted in the rule. The plaintiff should have asked for these costs."
Martin, B., added: "Neither of the things which the plaintiff asked for was granted, but something different. It would be very inconvenient if the rule was not as stated by my brother Alderson. It would lead to constant discussions before the master as to the costs of rules. As the not giving the costs was evidently an omission, this rule will be discharged without costs."
Barnes v. Hayward, 1 Hurl. and N. 242.
NOTES ON THE COMMON LAW PROCEDURE ACT, 1854.
POWER OF JUDGE AT NISI PRIUS TO AMEND RECORD.
IN an action against William Goslett, William Holgate, Henry Johns, Samuel Kingchurch, John Peters, Thomas Willingale, and Samuel Weatherley, the defendant Johns suffered judgment by default, and the evidence failed as against Willingale and Weatherley.
Held, that it was competent to the judge at nisi prius to amend the record under the 17 & 18 Vict.
c. 125, s. 37, by striking out the names of Willingale and Weatherley.
Johnson v. Goslett and Others, 18 Com. B. 723.
LIBERTY TO PLEAD EQUITABLE DEFENCE-TRIAL BY THE COURT.
IN an action on a covenant in a deed tha the defendant should not practise as a surgeon in the parish of Swallowfield or Shinfield, Berkshire, the court allowed an equitable plea, under the 17 & 18 Vict. c. 125, s. 83, that as between the defendant and the plaintiff the part of Shinfield in which the defendant practised had always been treated as being in Stratfield Mortimer, and that it was not intended by the parties to restrain the defendant from practising in the part of Shinfield in question, and that the covenant, as set out in the declaration, was so framed by mistake.
The court also, upon the motion for a rule nisi for the allowance of such plea, directed that an option should be given to the plaintiff of having the issue tried by the court.
Luce v. Izod, 1 Hurlstone and N. 245.
LAW OF ATTORNEYS AND SOLICITORS.
RIGHT TO RECOVER COSTS OF ABORTIVE ACTIONCRASSA NEGLIGENTIA.
It appeared that the plaintiff, who was an attorney, received, in November, 1854, from the defendants, foreign. agents residing in London, instructions to commence an action for them upon five foreign bills of exchange for 5,000 francs each, drawn on Messrs. Collingridge and Co., of Paris, and which they alleged to be unpaid and duly protested in their hands. The defendants also sent with the letter of instructions a copy of one of the bills, stating that they were all indorsed to Messrs. Cusin, Legendie, and Co.
The plaintiff never saw the bills themselves, but, acting on the above instructions, and concluding from the statement that the bills were unpaid and duly protested in their hands, and that the defendants had authority to sue thereon as indorsees, commenced an action in their names against Messrs. Collingridge and Co., one of the firm of which (Mr. Simpson) was at the time in London. The action proceeded as far as plea, when the defendants' attorney obtained an order for the inspection of the bills, and thereupon the plaintiff obtained the same from the present defendants, and discovered that there was no special indorsement to them, as was required by the law of France (Code de Commerce, Liv. 1, Tit. VIII., s. VI., art. 136—8), to entitle them to sue thereon. Upon further inquiry he ascertained that the bills had been merely transmitted to the defendants by Messrs. Cusin and Co., of Paris, for whom they acted as agents. The plaintiff thereupon discontinued the action, and the defendants' costs were paid, and he commenced another action against the same parties in the names of Messrs. Cusin and Co. When the cause was ready for trial the plaintiff required the defendants either to furnish him with funds to carry it on or to give him an undertaking to pay his charges. They then wrote him a letter, that as he so strongly advised them to go on with the action, and seemed so sanguine as to the result, they thereby authorised him to proceed to trial, and that they would hold themselves responsible on Mons. Cusin's behalf for all
528 Railways, Professional Charges, and Cort's Invention-Common Law Procedure Acts.
costs and expenses, it being distinctly understood that he was perfectly prepared to go on without delay, and that he would take all the necessary measures for avoiding any delay or irregularity.
The cause then went to trial, and the plaintiffs obtained a verdict for £1,050 and interest, but it did not appear that the amount had been realised. The plaintiff then brought this action against the defendants to recover the costs of these proceedings, to which they pleaded never indebted and payment. A verdict was found for the plaintiff for £107 odd, with leave to the defendants to move to reduce it by the sum of £22 odd, the expenses of the abortive account less £10 which the defendants had paid on account of such costs,
In making absolute the rule which had been accordingly obtained, Jervis, C. J., said :-" The plaintiff, when he commenced proceedings upon the bills in the names of Orsi and Armani, knew, or had the means of knowing, what the law of France required. It was his duty to see the bills before he took any steps. He would then have known that the action could only be brought in the names of Cusin, Legendre, and Co., and so the expense of the abortive action he first brought would have been avoided."
Willes, J., said :-"Without deciding that an attorney practising here is bound to know the French law, I agree with the rest of the court in thinking that there was such a degree of negligence on the part of the plaintiff as to disentitle him to recover the costs of the action brought by him against Simpson in the names of the present defendants."
Cresswell and Williams, JJ., concurred.
RAILWAYS, PROFESSIONAL CHARGES, AND
It was recently stated by Mr. Stephenson, M.P., the President of the Institution of Civil Engineers, in his opening address, that no less than fourteen millions sterling had been paid to the parliamentary, legal, and engineering professions for their charges alone in obtaining 45 acts of Parliament for establishing railways, besides the subsequent annual costs of solicitors and engineers in the progress of these vast undertakings, We are unable to apportion the amount respectively received by the solicitors, the parliamentary agents, and the engineers, but cannot be far wrong in supposing that five millions at least have been paid to the legal practitioners. We have heard of one bill of costs of £250,000 on a railway of seventy miles; but this included enormous fees to counsel, the expense of innumerable purchases, investigations of titles, many special contracts, and the parties dealt with as occupiers, leaseholders, or freeholders being many thousands.*
We have been induced to notice the magnitude of these railway costs on account of an appeal made to the nation, as well as to Parliament, in support of the claim of the descendants of Henry Cort to compensation for his invaluable inventions in the manufacture of iron a claim which has been most powerfully supported by many of the public journals. We have an additional motive in submitting the case to our readers, inasmuch as one of the sons of Henry Cort
* It may be supposed that this vast sum of five millions has made up to the profession the loss sustained by the numerous law reforms, but these millions have been divided amongst a small number of the general body.
was a highly respectable and intelligent solicitor,† who practised many years in Gray's-inn and the Temple.
From the columns of the Times we abridge a statement of Mr. Cort's invention, in the eloquent conclusion of which we heartily concur. The counsel and solicitors who have so largely participated in the benefits resulting from these ingenious discoveries may fairly be expected to take into consideration the claim now submitted to the public.
"Time was some seventy years ago that England was dependent upon Sweden and Russia for her supply of wrought iron. Henry Cort, of Gosport, an iron manufacturer, invented, and secured by patent, two processes, which relieved us from this commercial servitude, and liberated for the use of the English manufacturer the supplies of iron which are stored up so profusely under the surface of these islands. The first process effected the cheap manufacture of wrought iron by the flame of pit coal in the puddling furnace; the second process, which was the rolling of this cheap wrought iron through grooved rollers enabled the manufacturer to produce twenty tons of bar iron in the same time and with the same labour previously required to manipulate one ton of inferior quality by the tedious process of forging under the hammer. Before the year 1785, when iron was, comparatively speaking, but slightly used for commercial, maritime, or social purposes, we paid annually to Russia and Sweden £1,500,000 for wrought iron. Then came the war, foreign prohibitions, and an overpowering and increasing demand for more and more iron. The inventions of Henry Cort carried us easily through this period of trial, and as his descendants allege, were the principal cause of our success. It would, indeed, be impossible to exaggerate the advantages resulting from an unlimited supply of this precious metal. Let any one think of our iron fleet, iron gunboats, iron mercantile marine, iron railways, iron engines, iron cotton mills, iron suspension and tubular bridges, iron batteries, iron palaces, &c., and then ask himself what should be the measure of public gratitude to the descendants of a man who endowed his country with such an amount of wealth and power. While others have, upon the strength of Henry Cort's discoveries, been raised to the position of millionaires, his children are almost starving. We should be ashamed for the honour of England to mention the amount of pension which has been conceded to them by the Crown and Parliament. It is about equal in amount to the wages of a domestic servant of the humblest description, and even this has been made subject to deductions. For the sake of our national credit, it behoves all persons' of influence in the country to give the case of Henry Cort's children their immediate consideration. In bringing the subject under their notice our duty is discharged."
COMMON LAW PROCEDURE ACTS.
GREAT YARMOUTH BOROUGH COURT.
Her Majesty, by and with the advice of her Privy Council, is pleased to order that within one month after such order shall have been published in the London Gazette, the provisions of the "Common Law Procedure Act, 1852," and the rules
Amongst other testimonials laid before the Government in the son's lifetime was one from Sir Anthony Hart, the Irish Lord Chancellor.
Summary Procedure on Bills of Exchange Act, 1855.
made and to be made in pursuance thereof, except | sections 97, 98, and 120 of the said act, and except rules 57, 81 to 111, both inclusive, 115 to 117, both inclusive, 123 to 134, both inclusive, 173 and 175; and also except such parts of the said act as relate to special juries, terms, and pleadings, between the 10th day of August and the 24th day of October in any year, shall apply to the court of record of the borough of Great Yarmouth, called the borough court.
And that, within one month after such order shall have been published in the London Gazette, the provisions of the "Common Law Procedure Act, 1854 (except such as are contained in the sections of the said act, numbered respectively 2, 17, 75, 76, 77, 95, 97, 98, and the whole of the 99th section, except so much thereof as explains the meaning of the word "action," and also except such as are contained in sections 100, 101, 102, 104, 105, and 107, in the copy of the said act, printed by her Majesty's printer), and the rules made and to be made in pursuance of the said act shall extend and apply to the said court of record of the borough of Great Yarmouth, called the borough court.
And that the judge of the said borough court
shall be the person by whom any powers or duties, incident to the provisions hereby applied under the said two acts, shall be exercised in respect to matters in the said court.-From the London Gazette of 2nd December.
SUMMARY PROCEDURE ON BILLS OF EXCHANGE ACT, 1855.
GREAT YARMOUTH BOROUGH COURT.
Her Majesty, by and with the advice of her Privy Council, is pleased to order, that within one month after such order shall have been made and published in the London Gazette, all the provisions of the "Summary Procedure on Bills of Exchange Act, 1855," shall extend and apply to the court of record in the borough of Great Yarmouth, so far as the same may be applicable to the said court.
And that the judge of the said borough court shall be the person by whom any powers or duties, incident to the provisions hereby applied under the above recited act, shall be exercised in respect to matters in the said court.-From the London Gazette of 2nd December.