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Notes of the Week.-Analytical Digest of Cases. The Queen has been pleased to appoint W. Trinity Term, and that the new business by no H. Pinder, Esq., to be a Police Magistrate for means promises to compensate for the dethe District of Abaco, in the Bahamas.—From ficiency. the London Gazette of 26th Oct.
Thomas Emerson Headlam, Esq., Q.C., M.P., RUMOURED IRISH LEGAL CHANGES. has been appointed a Charity Commissioner.
The new arrangements are said to be these:
-Chief Baron Pigott to resign, on the ground PROSPECTS OF THE LEGAL PROFESSION IN of ill health, Mr. Attorney-General Keogh, of
course taking the seat of honour in the Court Michaelmas Term will open under rather of Exchequer, Mr. Fitzgerald, the Solicitor. discouraging circumstances as far as the pros- General, to succeed Mr. Keogh; and Mr. Isaac pects of the Irish Bar are in question. Saun- Butt, Q. C., the member for the Borough of ders' Newsletter states, that there is but a Youghal, to be Irish Solicitor-General. small arrear of business laying over from Times.
ANALYTICAL DIGEST OF CASES,
SELECTED AND CLASSIFIED.
BILL OF EXCHANGE.
Privy Council Sppeals.
of the ship resident in Sweden, who being without funds, consented to the master taking
up a bottomry bond for payment of the neces1. Lies where error on face of record. An sary repairs, and the British consul at the port appeal lies to this Court, as a Court of Error, where the vessel lay, wrote on behalf of the if there be error on the face of the record, such master and as his agent, to the consignees at as might be avoided in arrest of judgment in Hull, informing them of the damage sustained the Court below. Tronson v. Dent, 8 Moore, by the vessel, but made no application for P. C. 420.
money nor referred to the necessity of repairs. Case cited in the judgment: Wright v. Goddard, No answer was made to this letter, and the 8 Ad. & E. 144.
master in the month of March, 1849, hypothe
cated the ship, freight, and cargo for the 2. Practice, where fatal objection to right of money borrowed for the repairs : Held (affirm- Where there is a fatal objection to the right ing the judgment of the Admiralty Court), of appeal, the respondent ought to apply to that such letter to the consignees was a suffiquash the appeal, and not to wait till the hear-cient notice to authorise the master raising ing to urge such objection to its competency. money by bottomry on the cargo. Wilkinson Tronson v. Dent, 8 Moore, P. C. 420.
v. Wilson, 8 Moore, P. C. 459. And see Hong Kong ; Settled Accounts.
See Consignee ; Ship.
CONSIGNEE. -Bottomry bond upon the ship, freight, and Action of assumpsit against shipowner on cargo; taken up by the master of a small Swe- non-delivery of goods.-A consignee of goods dish vessel at a port in Sweden. Part of the has such a right of property in the goods concargo was consigned to England: Held, that signed to him as to maintain an action of asconsidering the distance between Sweden and sumpsit against the shipowner for nondelivery England, and the means of communication, it of the goods. Tronson v. Dent, 8 Moore, P. C. was essential to the validity of the bond, so far 419. as the cargo was concerned, that the master Cases cited in the judgment : Moore v. Wilson, should communicate with the owners of the
1 T. R. 659; Fragano v. Long, 4 B. & Cr. 219; cargo before resorting to hypothecation of the
Coleman v. Lambert, 5 M. & W.502. cargo, as he could have obtained an answer
COSTS. within a period not inconvenient with the ex- See Settled Accounts. pediency of the circumstances of the case.
A Swedish vessel bound for a port in Sweden to Hull, was driven by stress of weather to put Bill of exchange.-What a sufficient satisback into another port in Sweden. This took faction of debt.-D. & Co., merchants at the place on the 21st of November, 1848. Ten days Cape of Good Hope, by a letter to M. & Co., afterwards the cargo was unladen, and the ship merchants at Rio de Janeiro, ordered a quanfound to be greatly damaged. The repairs tity of coffee to be shipped and sent to them at were completed and the cargo reloaded. The the Cape of Good Hope, which D. & Co. promaster at once communicated with the owners posed to pay for by a bill drawn by M. & Co.
DEBTOR AND CREDITOR.
MASTER OF SHIP.
Analytical Digest of Cases : Privy Council Appeals.
19 on Messrs. R. I. & Co., London, the general | Court granted : Held, that as the English pracagents for both D. & Co. and M. & Co. The tice prevailed at Hong Kong, the allowance of coffee was received by D. & Co., in due course, such appeal was irregular, being in effect, an and a bill of exchange was drawn by M. & Co. appeal against the verdict of a jury, and that R. I. & Co. received it, and credited the ac- the proper course would have been to have count of M. & Co. in their books with the moved the Court below for a new trial, and amount of the bill, and debited the account of to have appealed against the judgment refusD. & Co. with a like sum. R. I. & Co. ac- ing such motion. Tronson v. Dent, 8 Moore, cepted the bill, but before it arrived at maturity P.C. 419. they stopped payment, and the bill was protested for nonpayment. M. & Co. then brought an action in the Supreme Court of the Cape of Suspension of Colonial.- Misconduct.-An Good Hope against D. & Co., for the price of order of suspension from the office of Recorder the coffee shipped to their order. The Supreme of the district of Natal, made by the Lieutenant Court were of opinion that M. & Co. having Governor and Executive Council of that disagreed to execute the order in the terms pro- trict, under the powers of the Ordinance, No. posed by D. & Co., and accepted in satisfaction 14, of 1845, for alleged misconduct as a Judge, of their demands the credit which was to be founded upon charges of having permitted an opened in their favour by D. & Co. with R. I. affidavit reflecting upon the personal character & Co., such credit was to be considered as of the Lieutenant-Governor of the colony to be money paid by D. & Co., and placed to the reformed, instead of rejecting it altogether, or immediate disposal of M. & Co.
treating it as a contempt of Court, and for alUpon appeal, held by the Judicial Committee lowing private feelings to interfere with the ad(reversing such judgment):
ministration of justice, held to be unfounded 1st. That the effect of the arrangement be- and frivolous, and ordered to be rescinded. tween D. & Co. and M. & Co., to substitute a The Judicial Committee, in reversing such bill of exchange for cash payment was only to order, advised the Crown that the salary atbe considered as payment by the bill being ho- tached to the appellant's office of recorder noured at maturity.
should be paid to bim as if no order of sus2nd. That the entry of the amount of the pension had been made. Cloele v. Reginam, bill of exchange in R. I. & Co.'s, the joint 8 Moore, P. C. 484. agents' books, to the credit of M. & Co., and the debiting of D. & Co. with a like amount, was not a payment for the coffee, and that M.
See Ship. & Co. did not by such entry accept in satisfac
PRACTICE. tion of their demand the credit opened by the purchasers with R. I. & Co.
1. Where evidence insufficient.-In a quesCause remitted to the Court helow to calcu- tion of fact, the Judicial Committee not being late interest upon the debt according to the satisfied with the sufficiency of the evidence, Dutch Roman Law in force in the colony. relaxed the inhibition, and remitted the cause Maxwell y. Deare, 8 Moore, P. C. 363. to the Court below to take proof by further
affidavits upon that one point exclusively, with
out requiring a fresh act on petition to be See Practice, 2.
brought in. Wilkinson v. Wilson, 8 Moore,
P. C. 460. See Appeal, 1.
2. Particular Defence.- Plea.- Ore tenus. - Where a party intends to rely upon a par,
ticular circumstance as a defence, such ground See Practice, 1.
should be pleaded, and not raised at the hear
ing, ore tenus. Wilkinson v. Wilson, 8 Moore, HONG KONG.
P. C. 460. Appeal from Judge of.- Practice.-By the And séé Appeal, 2; Hong Kong. ordinances constituting the Supreme Court at Hong Kong, it is enacted, that all matters relating to the practice and proceedings of that Opening. — Costs where appeal delayed. – Court are to be the same as the Courts in Leave to appeal.- Principles which regulate England. The Supreme Court is composed of a Court of Equity in opening stated and settled a single Judge, and there is no Court of Error accounts. or Appeal in the colony. An appeal to Eng. Accounts of long standing and great comland lies against any final decree, judgment, or plication of a mercantile firm at Calcutta, one sentence, or against any rule or order made in of the partners of whom afterwards acted as a civil suit or action, having the effect of a final agent in England, involving charges for agency and definitire sentence. In an action on pro- and partnership transactions, were mutually mises, the jury found a verdict for the respond agreed to be investigated and closed. After ents. Before judgment was signed, the ap- long negotiations and discussions respecting pellant applied to the Court for leave to appeal some of the charges, an agreement was come from such verdict to England, which the Judge, to, the parties agreeing to strike the general bain the circumstances of the constitution of the lance at a given sum, reserving one item of the
DEFENCE ORE TENUS.
Analytical Digest of Cases : Privy Council Appeals. account, amounting to a considerable sum, for found to be partially damaged by the salt future investigation. This reserved item was water. The master, who acted bona fide and subsequently settled by the acceptance of a to the best of his judgment, selected the dabill of exchange for a lesser amount, as such maged chests of opium and sold them by auc. reserved item, if opened, would have disarrang- tion, and forwarded the remainder to Hong ed the settled general account. The bill of Kong. It appeared that the master might exchange was dishonoured, and an action have had the damaged opium redried and rebrought to recorer the amount. A bill was packed while the vessel was refitting, and have then filed for an injunction, for the cancelment forwarded it, though deteriorated in value, with of the bill of exchange, and that the accounts the other opium : Held, under such circumso settled might be opened. The Supreme stances, in an action brought by the consigCourt at Calcutta held, that the reserved item nees against the shipowner for the value of the being left open, was evidence that the account opium damaged and sold, that it was the duty was not finally closed, and decreed the accounts of the master to carry the cargo to its place of to be opened, referring the cause to the Master. destination, as the goods could have been de
Upon appeal, held by the Judicial Commit- livered in a merchantable although damaged tee (reversing such decree and dismissing the state. Tronson v. Dent, s Moore, P. C. 419. bill with costs), that the transaction amounted to an adjustment of the general accounts be
Cases cited in the judgment: Roux v. Salvador, tween the parties, subject to the reserved item,
4 Scott, 1; 3 Bing. N. C. 266 ; Vlierboom v.
Chapman, 13 M. & W. 230; Idle v. Royal which was ultimately settled, and that the ac
Exchange Assurance Company, 8 Taunt. 755; counts so settled and closed could not, in the 3 Brod. & B. 151 n. ; Robertson v. Clarke, 1 absence of fraud, be reopened.
Bing. 445 ; Read v. Bonham, 3 Brod, & B. The defendant did not appeal from this in. 147 ; Knight v. Faith, 15 Q. B. 649. terlocutory decree, but proceeded in the Master's office in respect of the other matters
WILL. included in the accounts; but before the general
Validity of.- Extravogant disposition of proreport was made by the Master, he appealed periy.- An Englishman, who had resided for from such interlocutory decree to England. many years in India, and become imbued with In reversing such decision, the Judicial Com eastern notions, professing himself at different mitiee ordered him to pay the costs of the times a believer in the Hindoo and Mahomedan proceedings in the Master's office, and remitted faiths, and to a great degree adopting the babits the cause to the Court below, with directions of life of the latter, by his will (which, with the that the costs payable by the defendant upon exception of a small legacy, excluded his brothe dismissal of the bill, and the costs payable ther, his only next of kin, from any benefit) after by him consequent upon his proceedings in the bequeathing several legacies and specific beMaster's office, should be set off, the one quests, gave the residue of his property to the against the other, and the balance paid to the Turkish Ambassador, or the person for the party entitled to the same.
time being representing him, to be applied for Leave to appeal on an exparte application, the benefit of the poor of the city of Constantiwas under special circumstances granted upon nople, and for the erecting of a cenotaph at terms of the appellant prosecuting the appeal Constantinople, with a light burning and a deand giving security for 500l. No step was, scription of the testator engraved thereon. however, taken by the appellant to perfect the This will, which was in conformity with his security or prosecute the appeal. The respond written instructions, was duly executed during ents on being served with the order admitting the last illness of the testator. The Prerogative the appeal, filed a counter petition to revoke Court, by its sentence, refused probate, upon the the leave granted to appeal. The Judicial ground of the extraordinary nature of the beCommittee, under the circumstances, there quest, coupled with the wild and extravagant having been great delay, made an order putting conduct of the testator about the time of its the appellant upon terms of lodging his peti. execution, which the Court considered as tion of appeal within six weeks, or the appeal amounting to insanity; , Such sentence reto stand dismissed, and enlarged the amount versed upon appeal, and the will established; of the recognizance to 1,0001., to cover the the Judicial Committee being of opinion, that expenses occasioned by the proceedings in the as the will was in conformity with the written Master's office, reserving the costs of the
instructions of the deceased, the true test to
application to revoke the leave to appeal to the ascertain its validity was to look into the prehearing. M'Kellar y. Wallace, 8 Moore, P. C. vious habits and opinions of the testator to ac378.
count for his his extravagant behaviour and language, and that though the dispositions in
the will might be absurd and irrational in a Duty of Master.-Carrying cargo to desti- native of England and a Christian, according to nation. A cargo of opium, shipped at Cal- English babits, they were accounted for in the cutta, was by the bill of lading to be delivered case of the testator, who had in early life adoptat Hong Kong to the respondents. The ship ed the manners and more of living of a Macame in collision at sea with another vessel, homedan. Austen v. Grahari, 8 Moore, P. C. and received so much injury as to compel her 493. to put in at Singapore, where the cargo was
The Legal Observer,
"Still attorneyed at your service."--Shakespeare
SATURDAY, NOVEMBER 10, 1855.
PRACTICAL DEFECTS IN LEGIS. on the existing course of proceeding. SeLATION.
condly, if there should remain any failure in the machinery by which the amendment
is sought to be effected, the Judges can SUMMARY PROCEDURE ON
promptly supply the defect by a new reguEXCHANGE.
lation or an amended form. Thirdly, if the ONE of the proposed measures of last Judges thought it proper, they could have Session, and which will no doubt be again the assistance, in matters of practice, not introduced in the next, had for its object only of their own immediate officers, but of the withdrawal of a large portion of the the attorneys of the Court, who, acting on private Bills which are annually brought behalf of the suitors, have to carry the rules into Parliament for the purpose of supply- and regulations of the Court into practical ing defects in wills and settlements regard- effect. ing the power of leasing, exchanging, or We make these remarks in reference to selling family estates; and transferring the the Summary Procedure on Bills of Exauthority in such cases to the Court of change Act, wherein not only a speedier Chancery, where the object of the parties remedy was intended to be given on dishointerested may be effected without delay noured bills and notes, and all defence exand at a comparatively moderate expense. cluded, except by leave of a Judge (which
Reforms like this must receive the ap- provisions are no doubt fit subjects of leproval of all classes both public and pro- gislation); but the Schedule to the Act fessional. One of the Acts of last Session gives the precise form of the writ and its sestrikingly shows that this improvement of veral indorsements; and although it is prowithdrawing unsuitable matters from the vided that the Common Law Procedure Acts Houses of Parliament, and confiding them of 1852 and 1854, and all rules made under to the Judges of the Superior Courts, should those Acts, so far as the same are or may be carried into various other departments be made applicable, shall extend to all proof our legal system. The proper province ceedings under the new Act, it is doubtful of the Legislature is to enact general laws whether the Judges can by any rules and and establish general principles for the ad- orders amend the precise forms given in ministration of justice. The forms and the Schedule . modes in which those laws and principles It was supposed at first that under the should be carried into practical effect, 223rd and 224th sections of the Procedure should be left to the Judges and their Act of 1852, and the 97th and 98th sections officers by whom the rules are to be en- of the Act of 1854, “ for the effectual exeforced. There would be several advantages cution of the Act and of the intention and in this method of proceeding :- First, the object thereof,” the Judges might have Judges and their officers being well ac- corrected the forms in the Schedule of the quainted with the existing law and practice, new Act; but we understand that several know the most convenient mode of engraft- of the Judges are of opinion that they are ing the alteration which has been enacted not authorised to alter the new form of inVOL. LI.
22 Practical Defects in Legislation--Summary Procedure on Bills of Exchange. dorsements on the writ; and if so, no costs | either by rule of Court or an amendment of can be recovered unless the action proceeds the Act, provision should be made for the to judgment; and the defendant, on being various events that may occur, -namely, served with the writ, may tender the prin- where the party first served with the writ cipal and interest without costs or noting ; does not pay, and a second is served, who and yet the 5th section of the new Act ex- pays the debt and costs applicable to himpressly gives “the expenses incurred in self, but not the costs against the first noting for non-acceptance or non-payment party; or it may be that a third service on or otherwise.”1
another party becomes necessary, and which We presume the question must soon be in the terms of the Act is also to be taken raised before the Court, either by an ap- as if a separate writ had been issued, and plication to stay the proceedings, if a consequently the judgment against each will tender of the debt be made without be separate, whether drawer, acceptor, or costs), and the money refused, or if re- indorser ; and the several judgments will ceived by the plaintiff's attorney, and he comprise the costs of each with interest to should proceed in the action to recover the the date of the judgment. And then there costs ;2 or if judgment be signed, by a mo- will be a claim for subsequent interest to tion to set it aside. On full consideration the time of actual payment. of the whole matter, we trust the Judges Here are difficulties and doubts enough, will supply the defects by aid of their com- and it is not improbable when actions are prehensive powers under the Common Law brought under the Act, that further defects Procedure Acts, which the Legislature, by will be discovered. Indeed, there seems incorporating in the new Act, surely in danger that the cautious practitioners will tended to be made available.
not avail themselves of the new procedure, One of the most important points arises except in cases where a dilatory or fictitious under the 6th section, which provides, that defence may be anticipated, and it may be the holder may issue one writ of summons worth while to encounter the difficulties against all or any of the parties to the bill, referred to. If it should be expected that and such writ shall be the commencement a defence will be set up, and that in all of an action or actions against the parties probability the Judge would grant an order named therein respectively, and all subse- to appear and plead, the plaintiff may then quent proceedings against such respective be advised to sue in the ordinary manner. parties shall be in like manner, so far as Still there may be cases where it is desirmay be, as if separate writs of summons able that the affidavit to be made by the had been issued. It follows from this defendant, in support of the application, provision that there would be separate judg- should be known to the plaintiff :-such afments against each party, although all are fidavit disclosing a legal or equitable deincluded in the same writ; and the costs of fence, or other facts which the Judge may each judgment would be the same, minus deem sufficient to support the applicathe fee on the original writ, or a proportion tion. thereof.
Good may arise out of evil. We trust This clause was introduced in the that one of the results of this specimen of Committee of the House of Commons to imperfect legislation will be, that hereafter meet the supposed advantage of Lord the Legislature will leave the task of framBrougham's proposed Bill, under which the ing technical forms of proceeding to the registrar (a proposed new officer of Court) Judges, and that the Judges, with the aswould enter the notarial protest against all sistance of their officers,—not forgetting the the parties to the dishonoured bill. The practitioners of the Court,—will be enabled clause seems not to have been prepared with to avoid these unseemly difficulties in the sufficient correctness; and consequently, administration of justice.
In another Statute of the last Session, a · The form in the Schedule leaves the num- more prudent course was adopted. In the ber of days blank. If the noting cannot be Despatch of Business in Chancery Act (18 added, nor the costs, how is the blank to be & 19 Vict. c. 134), the 16th section exsupplied ?
The 5th section provides, that the holder tends the jurisdiction of the Judges sitting of every dishonoured bill or note shall have the in Chambers, regarding trust funds and same remedy for recovering the expense of other matters. Hitherto the object of the noting as for the amount of the bill. Here the parties could only be effected by petition or body of the Act gives a right and the form in motion in Court, though in a summary way the Schedule omits it. How is this to be without Bill; but in future it may be done cured?
at Chambers under General Orders to be