Page images
PDF
EPUB

Parliamentary Proceedings relating to the Law.-Notes of the Week.

Church Rates.-Marquis of Blandford. For 2nd reading, May 21. Amended Formation of Parishes.-Marquis

of Blandford. Re-committed.

Advowsons.-Mr. Child. For 2nd reading, May 21.

Reversionary Interests of Married Women. -Mr. Malins. Passed.

Specialty and Simple Contract Debts.-Mr. Malins. For 2nd reading, May 22.

Tithe Commutation Rent Charge.-Mr. R.
Phillimore. In Select Committee.

Fire Insurances. For 2nd reading.
Medical Profession.-Mr. Headlam. In
Select Committee.

Medical Qualification and Registration.-
Lord Elcho. For 2nd reading.

Trust Property Criminal Appropriation.Attorney-General.

County and Borough Police.-Sir G. Grey. Re-committed with Amendments, May 23. Public Prosecutors.-Mr. J. G. Phillimore. In Select Committee.

Aggravated Assaults.-Mr. Dillwyn Negatived.

Summary Jurisdiction of Justices of Peace.
-Mr. Locke King. For 2nd reading, May 21.
Qualification of Justices of the Peace.-Mr.
Colville. Re-committed, May 21.
London Corporation.-Sir G. Grey.

2nd reading, May 26.

For

Courts of Common Law (Ireland). Re-Com

mitted, May 23.

LAW APPOINTMENTS.

57

The Queen has been pleased to appoint the Right Honourable Matthew Talbot Baines, to be the Fourth Charity Commissioner for England and Wales, in the room of the Right Hon. Lord John Russell, resigned.-From the London Gazette of May 13.

Mr. Isaac Davies Rees, Solicitor, of Swansea, has been appointed Clerk to the County Court of Aberdare.

Mr. Edward Colnett Spickett, Solicitor, of Pontypridd, has been appointed Clerk to the County Court at Newbridge.

The Right Hon. Sir Laurence Peel, has been called to the Bench of the Hon. Society of the Middle Temple.

COMMON LAW SITTINGS AT NISI PRIUS.

Queen's Bench.

In and after Trinity Term, 1856.

In Term.-IN MIDDLESEX.

1st Sitting, Friday.
2nd Sitting, Friday
3rd Sitting, Thursday

For Undefended Causes only.

IN LONDON.

1st Sitting, Tuesday
2nd Sitting, Tuesday

Friday

IN MIDDLESEX.

[ocr errors]

After Term.

[blocks in formation]
[ocr errors][merged small]
[merged small][merged small][ocr errors]

June 13 Friday

The Court will sit at ten o'clock every day. The causes in the list for each of the above sitting days in Term, if not disposed of on those Both Houses will re-assemble on the 19th. days, will be tried by adjournment on the days

NOTES OF THE WEEK.

THE OFFICE OF READER ON THE LAW OF
REAL PROPERTY AT GRAY'S INN.
MR. Reginald Robert Walpole, the Reader
on the Law of Real Property, having signified
his intention of resigning his office at the ex-
piration of the present Educational Term in
July next, the Masters of the Bench have
issued a notice requesting gentlemen desirous
of becoming candidates for the office, and who
must be Barristers, to communicate their de-
sire to the Treasurer of the Society, at the
Steward's Office, South Square, on or before
the 2nd June next.

Any information required upon the subject may be obtained at the Steward's office.

CHANCERY HOLIDAY.

The Lord Chancellor has ordered that the several offices of the Court shall be closed on Thursday, the 29th instant, on account of the celebration of her Majesty's birth-day. It is understood also, that the 29th will be a day of general rejoicing on the prosperous termination of the war.

ROLLS VACATION NOTICE.

The Chambers of the Master of the Rolls will be open on Tuesdays, Wednesdays, Thursdays, and Fridays in every week during the Vacation, from 11 to 1 o'clock.

[merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

58

Superior Courts: Lord Chancellor.-Rolls.-V. C. Kindersley.—Queen's Bench.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lord Chancellor.

w

In re Suitors' Fund, In re Earl of Devon.
May 7, 1856.

STOP ORDER ON COMPENSATION PENSION
TO PATENTEE OF SUBPOENA OFFICE.

It appeared that an order had been made for
the payment of the compensation pension
granted on the abolition of the office to the
patentee of the subpoena office to a trustee
under a creditors' deed: On the petition of
a judgment creditor a further order was
made against paying any portion of the
annuity to such patentee without the further
order of the Court, but without prejudice to
the former order.

THIS was a petition on behalf of a judgment creditor of the Earl of Devon, to whom a pension of 9167. a year had been granted by way of compensation upon the abolition of his office as patentee of the subpoena office, for a stop order thereon against any portion being paid to him. It appeared that in Nov. 1853, an order had been made for the payment of the whole pension to a trustee under a creditors' deed. Nichols in support; Southgate, contrà; Taylor for the solicitor to the suitors' fund.

The Lord Chancellor said, an order might be taken that no part of the annuity should be paid to Lord Devon without the further order of the Court, without prejudice to the order of November, 1853.

Master of the Rolls.

Borkas v. Lloyd. May 8, 1956.

entitled. The attachment would therefore be discharged, with costs.

Vice-Chancellor Kindersley.

In re Marylebone Joing-Stock Bank. May 8,

1856.

GENERAL BANKING ACT.

[ocr errors]

WINDING UP JOINT-STOCK BANK.-AMOUNT OF CALLS.

By one of the clauses of the deed of settlement of a joint-stock banking company, established under the General Banking Act, 7 Geo. 4, c. 46, it was provided that every shareholder should be liable for losses in proportion to his shares: Held, reversing the decision of Master Sir G. Rose, that the amount of calls, upon the company being wound-up, was not limited to the value of the shares.

THIS was a motion to reverse the decision of Master Sir George Rose, declining to make a call of 117. on the shareholders of the above bank, which was established under the General It appeared Banking Act, 7 Geo. 4, c. 46. that, before the winding-up order in 1848, 117. per share (which was of the amount of 251. each) had been paid, and that a call of 41. per share had been since made. The official manager now proposed to make two further calls of 10l. and 117. per share, but the Master had only made the former, on the ground that the liability of the shareholders was limited to the amount of their shares. By clause 12, however, of the deed of settlement, it was provided that every shareholder should be interested in the profits and liable for the losses in propor

WITNESS. -ATTACHMENT FOR DISOBEDI-tion to his shares.
ENCE TO SUBPOENA. PAYMENT OF EX-
PENSES.

Smythe, Hetherington, and Cole in support of the motion; Baily, Glasse, Southgate, and Sir W. B. Riddell, contrà; Roxburgh for the official manager.

Held, discharging with costs an attachment against a witness residing at Hereford for disobedience to a subpoena ad test. before The Vice-Chancellor said, that the Master the examiner, that he was entitled to be was wrong on the ground on which he declined paid 61. with the subpœna, together with an to make a call, as the deed contained an exundertaking by the solicitor for the pay-press stipulation that each shareholder should ment of any further sum to which on taxa- be liable in proportion to his shares. The very tion he should be held entitled. It appeared purpose of the Winding-up Acts was to work that the sum tendered was less than the out the equities, and the Master was still at travelling expenses. liberty to do so, but he must re-consider his decision on the ground he had taken.

THIS was an application to discharge an attachment which had issued against a witness residing at Hereford for disobedience to a subpœna ad test. before the examiner. It appeared that a sum of 37. 78. had been tendered upon the service, but that the applicant required 67. to be paid immediately, together with an undertaking from the solicitor for any further sum which the Taxing Master might allow. The travelling expenses alone exceeded the amount tendered.

The Master of the Rolls (after having consulted the Taxing Master) said, that the sum required of 61. was not unreasonable, and that the applicant was entitled to the undertaking for any further sum to which he might be held

Court of Queen's Bench. Wickenden v. Webster. May 7, 1856. EJECTMENT. — BREACH

OF COVENANT. PRIVATE DWELLING-HOUSE.

A covenant in an underlease that the defendant should not carry on any public business and use the premises solely as a private dwelling-house, was held (discharging rule nisi to set aside the verdict for the plaintiff and for a new trial in an action of ejectment) to be breached by his having let the premises to a person who carried on a small day-school for young ladies, and

Superior Courts: Queen's Bench.-Queen's Bench Practice Court.

taught dancing, of which public bills were
exhibited.

THIS was a rule nisi to set aside the verdict for the plaintiff and for a new trial of this action of ejectment to recover possession of a house in Valentine Terrace, Blackheath, let to the defendant on an underlease, on the ground of the breach of a covenant not to carry on any public business, and to use the premises solely as a private dwelling-house. It appeared that the defendant had let the premises to a Miss Edler, who carried on a small day-school for young ladies, and that dancing was taught and bills to that effect posted up in the windows in the neighbourhood, and also at the Deptford Insti

tution.

M. Chambers, Q. C., and T. Chitty showed cause; Bovill, Q. C., and Jacobs in support.

The Court said, that the business carried on of a dancing academy was in a public way and on an extensive scale, and the rule must be discharged.

Regina v. Hunt. May 8, 1856.

CERTIORARI.-DISALLOWANCE OF ATTOR-
NEY'S BILL OF COSTS BY POOR LAW AU-
TAXATION BY CLERK OF THE

DITOR.
PEACE.

59

aggrieved" "by such disallowance or surcharge, &c., to apply to the Court of Queen's Bench for a writ of certiorari to remove into the said Court the said allowance, &c."

Hayes, S. L., and Hall showed cause against rule, which was supported by Pashley, Q. C., and Bittleston.

The Court said, that the certiorari would not lie, as the attorney's bill had not been taxed, and the decision of the poor law auditor was final, under sec. 39. The rule would be discharged, but without costs.

Cattlin v.

Westrop. May 8, 1856. ATTORNEYS.-UNDERTAKING TO PAY ON CLI

ENT'S DEFAULT.-ACTION FOR AMOUNT.

B., an attorney, gave an undertaking for his client, the defendant in an action, on behalf of himself and partner for the payment of the sum for which the action was brought, upon the plaintiff giving certain time and the defendant making default. Upon such default being made a rule was made absolute on B. for payment of the amount, but discharged as against his partner without costs, on the ground that it was not authorised.

A writ was issued for the amount, but was Where the bill of costs of an attorney em- not served by reason of B. keeping out of ployed by parish officers in regard to the the way: Held, no answer to the rule. removal of a pauper was not taxed by the THIS was a rule nisi on Messrs, Shearman clerk of the peace, under the 7 & 8 Vict. c. & Slater, the attorneys for the defendant in this 101, s. 39, held, that the decision of the action, to pay to the plaintiff a sum of 497., the poor law auditor, disallowing such bill, was amount of the bill of exchange for which the final, and a rule nisi for a certiorari to bring action was brought. It appeared that the plea up his decision, was discharged, but with- pleaded had been withdrawn by consent upon payment of costs and an undertaking from the defendant's attorneys that if the plaintiff would give him until March 7, and default were then made, they would pay the amount. Default was made, whereupon this rule had been obtained. It appeared that a writ of summons had been issued against the attorneys, but had not been served as neither of the parties could be met with at their office.

out costs.

THIS was a rule nisi for a certiorari to bring up the disallowance by the poor law auditor of a sum of 261. odd, which had been paid by the parish officers of Napton, to their attorney for services rendered in connexion with the removal of a pauper. It appeared that the bill of costs had not been taxed by the clerk of the peace.

Barnard, for Mr. Shearman, showed cause on the ground he knew nothing of the action and that the undertaking on his behalf was not authorised; Creasy for Mr. Slater.

Prentice in support.

By the 7 & 8 Vict. c. 101, s. 39, it is enacted, that " on the application of any overseer, or of any board of guardians, or of any attorney at law, it shall be the duty of the clerk of the peace of the county or place, or his deputy, if thereunto required, to tax any bill due to any The Court said, that if Mr. Slater had apsolicitor or attorney in respect of business per-peared to the action, it would have been an anformed on behalf of any parish or union situate wholly or in part within such county or place; and the allowance of any sum on such taxation shall be prima facie evidence of the reasonableness of the amount, but not of the legality of the charge;" "and if any such bill be not taxed before it is presented to the auditor, the auditor's decision on the reasonableness as well as the legality of the charges shall be final." And by s. 35, "if any person aggrieved by any allowance, disallowance, or surcharge by any Exparte Robert Rising, gent., one, &c. May

such auditor require such auditor to state the reason for the said allowance, &c., the auditor shall state such reason in writing in the book of account in which the allowance, &c., may be made; and it shall be lawful for every person

swer to the present application, but that as he had evaded service of the writ, the case was the same as if no action had been commenced. The rule would therefore be absolute as against Slater, and discharged as against Shearman, but without costs.

Queen's Bench Practice Court.
(Coram Coleridge, J.)

ATTORNEY.

8, 1856.
RE-ADMISSION.
TION.

[blocks in formation]

Where an attorney had ceased to practise in 1846, and been struck off the roll at his

60

Superior Courts: Common Pleas.-Exchequer.-Exchequer Chamber.

own request in 1849, and had not since been engaged in legal pursuits: Held, that he must be examined before he is re-admitted.

THIS was an application on behalf of Mr. Robert Rising, to be re-admitted on the roll of attorneys of this Court. It appeared that he was admitted in Trinity Term, 1834, and took out his certificate until 1846, and that his name had been struck off the roll at his own request in the year 1849, upon his intending to be called to the Bar, and that he had since been residing on his own property at West Somerton, and had not been engaged in legal pursuits.

Lewis in support.

The Court said, that the application could not be granted without an examination.

Court of Common Pleas.

Closmandue v. Carroll. April 24; May 7, 1856.

CHARTER-PARTY. EVIDENCE.-COPY.

STAMP.-ONUS PROBANDI.

In an action on a charter-party it appeared that the original could not be found and a copy was tendered. Evidence was adduced that the original had been sent by post from the country to the proper office in London to be stamped with the amount of duty and postage: Held, making absolute a rule for a new trial, that it was admissible in evidence, and that the onus lay on the defendant to show the original was not properly stamped.

THIS was a rule nisi to set aside the verdict for the defendant and for a new trial in this action on a charter-party, It appeared on the trial before Jervis, L. C. J., that the original charter-party could not be found and a copy was accordingly put in, but it was rejected on the ground that the original was not shown to have been stamped. Evidence was however adduced to the effect that the original had, when signed, been sent by post from Cardiff to the proper office in London to be stamped, with the amount of duty and postage.

Mellish showed cause against the rule, which was supported by Channell, S. L., and Henderson. Cur. ad. vult.

took place when the defendant was attending the Court of Queen's Bench as a witness on the trial of an action.

Petersdorff showed cause against the rule, which was supported by Daly, citing Cole v. Hawkins, 2 Stra. 1044; S. C. Andrews, 275.

The Court said, that there could be no objection to the service, and that although the service might be objectionable, yet having been effected it was valid. The rule would therefore be discharged with costs.

Exchequer Chamber.

Goldham v. Edwards. May 9, 1856.

ACTION FOR DILAPIDATIONS TO VICARAGE HOUSE. AGREEMENT FOR EXCHANGE.SIMONY.

To an action by a vicar against his predecessor for dilapidations the defendant pleaded, that while he was rector of C. and vicar of N. he agreed with the plaintiff to exchange their respective livings in their then state and condition, and that the plaintiff was not to call on him to pay for the repairs, and that the exchange was carried into effect and the plaintiff became his successor in the vicarage: Held, affirming the decision of the Court of Common Pleas, with costs, overruling a demurrer to the plea, that it was not bad under the 31 Eliz. c. 6, s. 8, on the ground that the contract was simonaical.

THIS was an error from the judgment of the Court of Common Pleas overruling a demurrer to one of the pleas in this action by an incoming against an outgoing incumbent for dilapidations in the parsonage house and premises, rector of Caldecot and vicar of Newnham, he and which stated that while the defendant was agreed with the plaintiff to exchange their respective livings in their then state and condition, and that the plaintiff was not to call on the said exchange was carried into effect and the defendant to pay for the repairs, and that in the vicarage. To this plea there was a dethe plaintiff became the defendant's successor simonaical under the 31 Eliz. c. 6, s. 8, which murrer on the ground that the contract was incumbent of any enacts, that

66 if

any

benefice

with cure of souls, after the end of the said 40 days, do or shall corruptly resign or exchange the resigning or exchanging of the same, dithe same, or corruptly take for or in respect of rectly or indirectly, any pension, sum of money,

The Court said that the onus probandi of the charter-party being unstamped lay on the defendant, and that in the absence of any such proof it must be presumed to be stamped. Secondary evidence of it was therefore admissible, and the rule for a new trial would or benefit whatsoever; that then as well the

be made absolute.

[blocks in formation]

giver as the taker of any such pension, &c., shall loose double the value of the sum so given, taken, or had."

Unthank for the plaintiff.

The Court (without calling on Chambers for the defendant) said, that the plea was open to a reasonable and liberal interpretation, which was that the parties had agreed to exchange their respective livings in their respective conditions, and that such an agreement was not low was therefore affirmed. simonaical, and the judgment of the Court be

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, MAY 24, 1856.

AMENDED COUNTY COURTS' BILL.

WE E are now in possession of the Lord Chancellor's Amended County Courts' Bill. The new provisions which have been introduced since we submitted the clauses to our readers, are of considerable importance, and others in the former Bill which appeared to be beneficial have been struck out in the re-print. It will be recollected, however, that neither the former nor the present Bill have yet been considered in Committee. The alterations now embodied in the reprint have, as we understand, been suggested by some of the County Court Judges, and the Lord Chancellor can scarcely be held responsible for the clauses now presented to the House. The other Law Lords have yet to bestow their attention on the whole measure, and we may reasonably anticipate considerable alteration before it will be in a state to pass the House.

In the meantime it may be useful to notice, 1st, the clauses which were in the previous Bill (as ordered to be printed on the 11th March) and now omitted; and 2ndly, the new clauses which have been added.

1. Actions for Malicious Prosecutions might, by the 10th section of the former Bill, be brought in the County Courts. This proposed jurisdiction is now with

drawn.

Where the claim exceeded 201., the party might, under the 13th section, serve the summons himself or by his attorney or agent. It is much to be regretted that this provision has been struck out: and we think it ought to have been applicable to sums of 101., if not less.

In actions on Contract above 20%., or in Tort above 57., it was proposed by the 22nd section that the defendant might object to the cause being tried in the County Court. This clause, we think, should have been retained. It is not probable that a defendant would prefer the risk of a more costly trial VOL. LII. No. 1,472.

in a Superior Court, if he did not conceive that an important point was involved in the case and that he expected the decision would be in his favour.

The 26th section of the former Bill enabled either of the parties to obtain summonses to the witnesses and to serve them personally or by his attorney or agent, with or without a clause requiring the production of papers and writings. It must be regretted that this clause has been struck out, and the service left to the bailiff who has no peculiar interest, like the party or his attorney, in finding out the witness or securing his evidence.

The former Bill, by clauses 53 to 57 inclusive, provided that a Lessee proceeding in Equity should not have an injunction or relief without payment of the rent and costs;-that the tenant paying all rent with costs, the proceedings should cease ;— that judgment for mesne profits down to a specified day might be given ;—that a mortgagee might enter a plaint where the debt did not exceed 1007.;-and in ejectment by a mortgagee where the mortgagor paid the principal, interest and costs, into Court, the same should be deemed a satisfaction, and the mortgagee might be compelled by the Court to recover the mortgaged property. These provisions are omitted in the amended Bill, and the previous state of the law permitted to remain.

The 59th, 60th, and 61st clauses, which provided against the abatement of the plaint by the death or marriage of the plaintiff, or the death of the defendant, are omitted in the present Bill. We cannot see that this alteration is an improvement.

The 65th section of the last Bill, which repealed the 102nd section of 9 & 10 Vict. c. 95, enacting that no protection order or certificate in bankruptcy or insolvency should be available to discharge a defendant committed by a County Court, is omitted in the amended Bill.

E

« EelmineJätka »