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486 Administration of Real and Personal Property.—Correspondence.—Notes of the Week.



To the Editor of the Legal Observer. SIR, Mr. Humphry, in his able introductory Lecture at the Law Institution on the 3rd November, mentioned a distinction taken by the courts of equity in their administration of real and personal property, which, however ingenious may be the reasoning upon which it is founded, and however clear such reasoning may be to a legal mind, is one which cannot be appreciated by non-professional persons, and is certainly opposed to the spirit of modern legislation, and therefore ought not to be any longer suffered to remain.

That distinction is this:

Equity holds that where there is an express devise of real estate upon trust to pay debts, the trust shall keep alive the debts, and prevent their being barred by the Statute of Limitations, on the principle that no lapse of time will bar an express trust. But in the case of an express bequest of leasehold property upon trust to pay debts, equity holds a different doctrine and the debts are barred.

The reasons upon which these two decisions are founded were clearly and ably explained by the Lecturer, but they consist of well-known refined subtleties which I think ought not to be allowed to work an exception to the general law which governs the limitation of claims.

"The law abhors stale demands," and "Vigilantibus non dormientibus servit lex," are two maxims which ought to be rung in the ears of every law student. Acting upon these two maxims the law had been settled before the Statutes of Limitation were passed that after a certain period an unprosecuted claim should be deemed, either, to have been satisfied, or that the party entitled had waived his right to enforce his claim. The Statutes of Limitation introduced no new system. Equity following the law held a debt to be barred after non claim for the same period as it would be barred at law, except in the case I have alluded to. The same principles of justice and expediency which led to the fixing a limitation at law being equally applicable in equity.



In reply to the query of "Civis" in the last number of The Legal Observer, if he will be good enough to refer to Woodfall's Landlord and Tenant by Harrison, under title "Notice to Quit," he will discover that "a notice on the 29th of September to quit on Lady day" is a good half year's notice.

The authorities cited are Doe d. Harrop v. Green,
4 Exch. 198; Roe d. Durrant v. Doe, 6 Bing. 574;
S. C. 4 Moore and Payne, 391.
J. E



The Queen has been pleased to appoint Robert William Keate, Esq., barrister-at-law, to be Governor and Commander-in-Chief in and over the Island of Trinidad and its Dependencies.-From the London Gazette of 7th November.

Mr. Bruges Foy, solicitor, has been appointed Registrar of the Axbridge County Court.


On the 11th instant, the Court of Queen's Bench proceeded with the Special Paper. When the first case had been argued, and the second called on, Mr. J. Wilde, Q. C., said he was instructed to apply to the court that the case might stand over. He was informed that this would be for the convenience of both sides.

Lord Campbell said the court was at all times ready to consult the convenience of the bar, but as no ground was stated for the postponement of this case, the court must proceed.

Mr. Wilde said he was not instructed, and had no brief. He knew nothing of the case; only that last night he was requested to make the application. Lord Campbell then called upon the other side, but no counsel appeared. His lordship complained that the court was not treated with proper respect, and ordered the case to be struck out. The next case was then called on, but no counsel appeared. Lord Campbell then ordered this case likewise to be struck out of the paper, and that neither of the cases struck out should be re-entered without ex

The question then is whether this distinction ought to remain? Is it founded on common sense and common justice? Does the fact of an express devise upon trust make the claim less "stale" than it would otherwise have been--or does it afford any excuse for the creditor's slumbering on his rights-planation or, bearing in mind that one of the main reasons upon which the system of limitation is founded is the difficulty after a lapse of time of producing evidence to defeat the claim, does it render this evidence more procurable?

If it has not one of these effects the distinction ought not to be allowed to remain. If it has such an effect, why should it not be equally applicable to a bequest of leasehold property?

The tendency of the legislation of the present day is undoubtedly to lessen those distinctions in the rules which govern real and personal property which we have inherited from the feudal system; and, therefore, I think that any subtle distinction like that I have alluded to, which is not founded on any principle of justice, and which tends to encourage "stale demands" which the law abhors, ought no longer to exist in our legal system.


made to the court. His lordship complained that the business of the court should be so obstructed, more especially as this was the regular Special Paper day.

Mr. Wilde assured the court he was not to blame, nor, he believed, was the counsel on the other side.

Lord Campbell said he had no doubt that that was the case; but, nevertheless, blame, and very serious blame, rested somewhere. His lordship then gave notice that from this day the court would proceed daily with the cases in the New Trial Paper.

On the following day Mr. Bovill, who was retained on the other side in this case, gave an explanation of the circumstances, which appeared to be satisfactory to the court.



Tuesday, 18th Nov.

Saturday, 22nd Nov.

Tuesday, 25th Nov.

Recent Decisions: Lords Justices; V. C. Kindersley; Court of Queen's Bench.



Lords Justices.

Hodgson v. Smithson. Nov. 6, 1856.



A testator, after giving a life interest to his wife, directed inter alia that the other half of his property in the Three per Cent. Consols should, after his wife's death become the property of his cousin, Mrs. M., or in case of her decease that it should be equally divided between her children "living:" Held, confirming the decision of the Master of the Rolls, that the word "living" referred to the death of Mrs. M., and not of the testator or his wife. THE testator, by his will dated in 1814, after giving a life interest to his wife, inter alia directed that the other half of his property in the 3 per Cent. Consols should after his wife's decease become the property of his cousin, Mrs. Morville, of Wakefield, in Yorkshire, or in case of her decease, that it should be equally divided between her children living.

The Master of the Rolls having held that the word "living" meant living at Mrs. Morville's death, and not at the death of himself or his wife, this appeal was presented.

R. Palmer and Brodrick Bagshawe; and J. Hinde Palmer for the respondents; Lloyd and H. Fox Bristowe for the appellant; Ware for the personal representative.

The Lords Justices said that the testator merely meant to substitute Mrs. Morville's child or children for herself, in case she should die during his wife's lifetime, and dismissed the appeal accordingly, but without costs.

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settled in trust for the settlor for life, then to his wife for life, with remainder upon trust for sale and to divide the proceeds among his children as therein mentioned, but he directed that if previous to a sale taking place under the trust any son should become bankrupt, the share to which he was entitled should go to his children. One of the sons became bankrupt after the greater portion of the property had been sold but before a small part had been converted, by reason of a question of title: Held, nevertheless, that the children and not the assignees were entitled.

CERTAIN freehold and leasehold property was conveyed to trustees in trust for the settlor for life, and after his decease in trust as to part for his wife for life, and after her death to sell and divide the proceeds among his children equally as therein mentioned, and he directed that in case any son should, previous to a sale taking place under the trust, become bankrupt, the share to which he would have been entitled should go to his children. that the greater portion of the property had been It appeared sold in 1842 and 1843, but that a small part of the leaseholds had not been sold on account of a question of title, and that one of the sons had since become bankrupt. This special case was presented on the question whether his children or his assignees were entitled to such leaseholds.

De Gex for the children; Martindale for a mortgagee; Surrage for the assignees.

The Vice-Chancellor said that the children were entitled to the shares of the unsold leaseholds.

Court of Queen's Bench.

Exparte Patch. Nov. 6, 1856.


A prisoner was in custody in the island of Jersey
under a general warrant against the goods and
bodies of the debtors of one C. On motion for
habeas corpus, which was refused: Held, that the
imprisonment must be shewn to be illegal according
to the law of the island.

THIS was a motion for a habeas corpus to bring up the body of the applicant, a prisoner in the island of Jersey under a general warrant against the goods and bodies of all debtors of one Courtillier, and the return to the warrant set out that the applicant had been arrested for a debt of £19 2s.

Bullar in support on an affidavit that the imprisonment was illegal according to the law of Jersey.

The Court said it was not shewn that the imprisonment was contrary to the law of Jersey, and the debt was not denied. The application would be refused.

Swinfen v. Swinfen. Nov. 10, 1856.



The service of a rule nisi for an attachment will not be substituted on the party's attorney, although it was believed she had withdrawn herself for the


Recent Decisions: Court of Common Pleas; Court of Exchequer.

purpose of avoiding service, and a copy of the rule had been left.

This was a motion that service of a rule nisi for an attachment against Mrs. Swinfen might be deemed sufficient on her attorney. It appeared that no information respecting her could be obtained at her residence, and it was believed she had withdrawn herself for the purpose of avoiding service, and a copy of the rule had been left.

Attorney-General in support.

The Court said that application could not be granted, but enlarged the rule.

Exparte Horry. Nov. 10, 1856.


A rule nisi for a criminal information for libel
published in a letter to the Times imputing gross
misconduct to the applicant as a barrister, was
refused where he had in a subsequent letter entered
into a defence of his conduct.

Held, that the refusal of a criminal information is not a bar either to an action or an indictment. THIS was a motion for a rule nisi for a criminal information against Mr. Rose, lately one of the undersheriffs of the city of London, for a libel published in a letter to the Times, imputing gross misconduct to the applicant as a barrister.

Sir F. Thesiger in support.

The Court having refused the rule on the ground that the applicant had, in a subsequent letter to the Times, entered into a defence of his conduct, said the refusal was not a bar either to an action or an indictment.

Court of Common Pleas.


Court of Exchequer.

Wilkinson v. Frost. Nov. 6, 1856.


The defendant justified in an action for trespass and
false imprisonment that the plaintiff had com-
mitted two felonies. It appeared that one Ta
proved, and that in respect of the other the plain-
tiff could give no satisfactory explanation: Held,
refusing a rule to set aside the verdict for the de-
fendant, that there was reasonable and probable
ground for giving the plaintiff in custody.

THIS was a motion for a rule nisi to set aside the verdict for the defendant, and for a new trial of this action, which was brought to recover damages for trespass and false imprisonment, It appeared on the trial before Pollock, Lord Chief Baron, that the plaintiff was a porter in the employment of the defendant, who was a silk-mercer, and that it was his duty to sleep on the premises to protect the goods, and that he had informed the defendant that he had examined a parcel of silk and found it to be deficient by reason of a portion having been cut out of the middle, and sewn up again. The missing silk was afterwards found in the plaintiff's boxes, and also a chain and seal belonging to the defendant. It was conceded that a felony of the silk was proved, but not of the chain and seal, although the plaintiff could not recollect the circumstances under which he became possessed of them. The defendant pleaded a justification, setting out the two felonies, and that he had reasonable and probable cause for giving the plaintiff into custody, and, under the learned Chief Baron's direction, a verdict passed for the defendant. Ballantine, S. L., in support.

The Court said that there was sufficient evidence of a reasonable and probable cause for giving the plaintiff into custody, without the circumstances of the discovery of the chain and seal, and that the fact of the commission of one felony by the plaintiff was sufficient ground on which the defendant might reasonably be influenced in forming a probable judgment of the plaintiff's guilt. The rule would therefore be refused.

Nov. 7, 1856.

An insolvent debtor described a promissory note in his schedule as a bond conditioned for payment of Roberts v. Grand Trunk Railway Company of Canada. £1000, with interest at 5 per cent. until payment to one James J. L., although at the time he knew the plaintiff was holder and indorsee. A rule was refused to set aside the verdict for the plaintiff in an action on the note upon the defendant's plea of his discharge under the Insolvency Act.

THIS was a motion for a rule nisi to set aside the verdict for the plaintiff and to enter it for the defendant in this action, on a promissory note for £1000, payable to one John Jackson Lee, and drawn by the defendant in 1849. The defendant pleaded his discharge under the 1 & 2 Vic. c. 110, ss. 69, 75, and it appeared that he had described the note in his schedule as £1000, the amount of his bond given by him to his creditor conditioned for payment with interest at 5 per cent. till the principal was paid, and the payee's name was stated to be James, instead of John, Jackson Lee. It, however, appeared that the defendant knew before his insolvency that the present plaintiff was the indorsee and holder.

Byles, S. L. in support.

The Court refused the rule.



Held, that a foreign corporation may be sued in this country, although it has no existence here, and the court accordingly refused to set aside a writ of summons against it as void.

Quære, how service of such writ is to be effected in order to be valid?

This was a motion for a rule nisi to set aside a writ of summons, and all subsequent proceedings, in this action, which was brought against the above railway company, with a board of directors and management in Canada, but which had no power to act in England. The writ had been served on the secretary, who happened to be in this country.

Bovill in support.

The Court said that a foreign corporation might be sued here, although the difficulty was how to serve the writ. The service on the secretary was ir regular, and a rule nisi would be granted to set it aside and the subsequent proceedings, but not the writ itself.

The Legal Observer,





AT length Sir Alexander Cockburn, the late Attorney-General, has been induced to accept the high judicial position of Lord Chief Justice of the Court of Common Pleas, with its liberal salary and large patronage. The career of Sir Alexander has been somewhat rapid. He was a fellow of Trinity Hall, Cambridge, and was called to the bar by the Honourable Society of the Middle Temple on the 6th February, 1829. He selected the Western Circuit; soon rose to eminence, and was made a Queen's Counsel in 1841. He was a bencher of the Middle Temple, and one of the municipal commissioners. In July, 1850, he became Solicitor-General, and in March, 1851, he was promoted to the office of Attorney-General. In the month of February, 1852, a change of administration took place. The Earl of Derby became Prime Minister, Lord St. Leonards Chancellor, and Sir Frederick Thesiger, and Sir Fitzroy Kelly resumed their former offices of Attorney and Solicitor-General. In December, 1852, Lord Derby's administration resigned, Lord Aberdeen became Premier, Lord Cranworth was created Chancellor, Sir Alexander Cockburn was re-appointed Attorney-General, and Sir Richard Bethell received the appointment of Solicitor-General, previously held by Sir William Page Wood, under Lord John Russell's administration.

Sir Alexander was first returned to Parliament for the Borough of Southampton in the year 1847. He was Recorder of Bristol, a lucrative appointment formerly held by Sir

Charles Wetherell.

The late Attorney-General was much admired for the clearness with which he stated his case to the court or jury, and the logical force with which he drew his conclusions. He was not only a close reasoner, but an eloquent advocate. He successfully conducted many important trials, and the great criminal case of Palmer will ever remain a memorable example of consummate skill an excellent judgment.


Sir Richard Bethell, who has succeeded to VOL. LII. No. 1,498.

the Attorney-Generalship, we are informed was born at Bradford, Wiltshire, in the year 1800; his father Dr. Bethell was a physician of some eminence residing at Bristol, and was descended from the ancient Welch family of "Ap Ithell." Sir Richard received the rudiments of his education at Bristol, and at the early age of fourteen proceeded to Wadham College, Oxford. There he attained the first

class in classics and the second in mathematics. He took the degree of Bachelor of Arts at the age of eighteen, and afterwards became a private tutor at Oxford, in which capacity he was very eminent. He was called to the bar by the benchers of the Middle Temple in November, 1823, and practised with distinguished success in the Court of Chancery. In 1840 he was made a Queen's Counsel, and in December, 1852, was promoted to the post of Solicitor-General.

Sir Richard Bethell is Vice-Chancellor of the County Palatine of Lancashire. He was first returned to Parliament for the Borough of Aylesbury in April, 1851.

At the time we write the vacant office of Solicitor-General has not been filled up.


IT has been generally supposed that the act "to Amend the Law relating to Drafts on Bankers," 19 & 20 Vic. c. 25, will have the effect of preventing bankers' cheques from being available in the hands of persons not entitled to them, and will afford better security than previously existed to the drawers and payees of these negotiable instruments. In proceeding to review the effect of the statutes of the last

session, Mr. Malcolm Kerr, in his Second Lecture at the Incorporated Law Society, stated, that after much consideration he had arrived at the conclusion that the statute had not altered the law in any respect, but had simply made that statute law which had previously been held to be the law by all the courts at Westminster.

The Lecturer, in the first place, described the nature of the negotiable instrument in question. He said :

A cheque on a banker is, in the eye of the law, an inland bill of exchange, payable on demand, and would, therefore, require a stamp like any other bill


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of exchange, were it not that, on the ground of its being for the convenience of commerce, the Legislature has seen fit to exempt such instruments from the operation of the stamp laws.

This exemption was first created by the statute 55 Geo. 3, c. 184, which exempted from stamp duty all drafts or orders for the payment of any sums of money to the bearer on demand, and drawn upon a banker within ten miles of the place where such draft should be issued. This statute also required that the draft should specify the place where it was issued, and should bear date on or before the day on which it was issued. The limit of ten miles imposed by this statute was extended to fifteen miles by the statute of 9 Geo. 4, c. 49, s. 15.

The law as to cheques on bankers was regulated by these statutes till the passing of the act 16 & 17 Vic. c. 59, one of Mr. Cardwell's measures for simplifying and improving the stamp laws. That act provided in the schedule that a "draft or order for the payment of money to the bearer or order on demand" should be liable to a stamp duty of one penny; but it exempted "all drafts or orders for the payment of money to the bearer on demand drawn upon any banker now by law exempt from stamp duty."

1. A cheque must specify truly the place where it is drawn. Therefore, when a person residing four miles from the town of Llanelly drew a cheque as from Llanelly itself, it was held to be void for want of a stamp (Walters v. Brogden, Y. and J. 457). When a cheque, however, purported to be drawn at the "Dorchester Old Bank," which words were printed on it, this was held a sufficient designation of the place in the absence of proof that it was not drawn there (Strickland v. Mansfield, 8 Q. B. 675).

But where a cheque was in these words: "Messrs. Knapp, bankers, Abingdon-pay to Mr. Hicks or bearer," it was held that it did not appear sufficiently that it was drawn at Abingdon to satisfy the statute (Bossart v. Hicks, 3 Ex. 1; and see Bond v. Warden, 1, Collyer, 583); and Lord Ward's case, where a cheque by a railway company for £4,000 was held void because it was headed with the name of the railway company (2 De Gex M'N. and Gord. 750).

2. A cheque must not be post dated. Therefore, a draft delivered before the day of the date thereof, though intended not to be used till that day, is void (Allen v. Reeves, 1 East, 435).

It is an every-day practice for people to issue a post-dated cheque, and to ask the person to whom it is given to hold it over for a day or two. The case quoted will show that if the drawer is dishonest enough to stop payment of his cheque, no action will liê upon it. But if paid without knowledge of the false date, the payment is good (Watson v. Poulson, 15 Jur. 1111). It is the knowledge of the defect which voids the transaction; therefore, where the defendants, knowing a cheque to have been postdated, and that the drawers were insolvent, presented it for payment on the day it purported to be drawn, and the bankers, having no funds of the drawers, paid it, not knowing the fact of its being post-dated, or that the drawer was insolvent, it was held that they were entitled to recover the money back as money had and received to their use (Martin v. Morgan, Gow. 123).

3. A cheque must be drawn on a banker. Thus, a cheque drawn on "Mr. Castleman, Bricklayer, Camberwell," is a bill of exchange, and requires a stamp. As a cheque it is void and cannot be given

in evidence to prove a payment or a set-off by or on behalf of the drawee (Castleman v. Ray, 2 Bos. and Pul. 383).

4. A cheque must be drawn on a banker within fifteen miles of the place where it is issued. The two cases already quoted-the one, when a cheque was drawn on bankers at Abingdon, and the other where the Oxford Railway Company headed their cheque in the name of the railway-are illustrations of this requisite. But there is a case more exactly to the point-Swan v. Bank of Scotland, 10 Bligh, 627.

This fourth requisite was considered to be complied with if the cheque was in fact issued within that distance. If, therefore, a cheque was to be sent to a friend in Oxford or Scotland to avoid the payment of the penny stamp, a cheque might be got from a friend, which, by being delivered, would be issued here, and then it might be sent to Oxford or Scotland. This was clearly an evasion of the law, and it has accord ingly been prevented by the statute 17 & 18 Vic. c, 83, s. 7, and which enacts that such cheques shall not, unlest stamped, be remitted or sent to, or negotiated or circulated at, any place beyond fifteen miles from the place where it is payable. Any person sending an unstamped cheque in defiance of this enactment, or any person receiving the same in payment or circulating it, forfeits a penalty of £50. But by sec. 10 of the same statute any person receiving a cheque thus unlawfully issued may put a stamp upon it, cancelling it at the same time by writing his name or initials, and the illegal cheque then becomes a valid and negotiable order.

5. The fifth requisite of a cheque is that it be drawn for a sum of money; that is, it must not direct the payment to be made in bills or notes. This is expressly provided by the statute 55 Geo. 3, c. 184. No cheque can be drawn for a sum less than twenty shillings. Such a cheque is not only void, but the issuing or negotiating such an instrument subjects the offender to a penalty of £20. This is expressly provided by the statute 48 Geo. 3, c. 88, s. 3, one of the many statutes connected with banking and the currency. At one time, by the statute 17 Geo. 3, c. 30, no cheque could be drawn for less than £5, and now by the 7 Geo. 4, c. 6 (which repeals an act that repealed the 17 Geo. 3) nothing in that act shall extend to a draft drawn by a man on his own banker for money held by that banker to the use of the drawer. This enactment by way of repeal seems to lead to this consequence, that a cheque for less than £5 is void if it so happen that the drawer has no balance at his bankers at the time.

6. A cheque to be exempt from stamp duty as a draft must be payable to bearer;-if it is made payable to a person or by order, it is, in point of law, a bill of exchange. Therefore, where a man was indicted for stealing a check payable to D. F., and not to bearer, it was held by the twelve judges that not being within the exception of the Stamp Act, ought to have been stamped as a bill, and not being so was not a bill, it being consequently neither a "bill" nor a "cheque" was not a valuable security, which might be the subject of larceny under 7 & 8 Geo. 4, c. 29, s. 5 (Rex v. Yates, 1 Ryan and Mood. C. C. 170).

7. It is lastly requisite that it shall be payable on | demand-otherwise it is not within the exception of the Stamp Act. The recent statutes, giving a legal effect to the operation of crossing cheques, applies also to orders on bankers, which differ from cheques only in this, that being stamped with a penny stamp they may be made payable to order, and may be issued

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