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Metropolitan and Provincial Law Association.

the county courts, which came into operation on the judgment of such superior court; but no action shall 1st of October, 1856.

"The act contains eighty-six sections, and several schedules.

"The fees to be payable, and the names of the judges who are to have increased salaries, are given in a schedule. Eighteen of the judges are to have £1,500 each, and four are to have £1,350. "Seven years' standing at the bar is, of course, the

qualification required for a deputy judge, and the clerk of a county court is hereafter to be called registrar, and no person can be registrar of more than one court. The power hitherto vested in the judge to issue a summons against a defendant residing out of the jurisdiction, is extended to the registrar (sec. 15).

"If the plaintiff and defendant reside or carry on business within separate districts of any of the metropolitan courts, the summons may be taken out either in the plaintiff's or defendant's district (sec. 18).

"The former county courts acts did not allow any action to be tried where a question of title was at issue; but by section 25, the judge has now power, by consent of the parties, to decide any claim of title to any corporeal or incorporeal hereditament, or to any toll, fair, market, or franchise.

"In any action of contract brought in the superior court, if the claim endorsed on the writ do not exceed £50, or be reduced by payment into court, set off, or otherwise, to a sum not exceeding £50, the judge of the superior court may, in his discretion order the cause to be tried in the county court (sec. 26).

"An alteration of consequence is made with respect to judgments by default. In any action for a debt exceeding £20, the plaintiff may require the defendant to give notice in writing of his intention to defend, or otherwise judgment will go by default without the plaintiff giving any proof of his claim (sec. 28).

"Where an action of contract is brought in one of her Majesty's superior courts, to recover a sum not exceeding £20, and the defendant in the action suffers judgment by default, the plaintiff shall recover no costs unless, upon an application made, such court or a judge of one of the superior courts shall otherwise direct (sec. 30).

"The judge of a county court may issue a warrant of habeas corpus ad testificandum.

"A defendant may object to a cause (if the claim be over £20 on contract, or £5 on tort) being tried in the county court, on giving security, to the satisfaction of the registrar, for the claim, and costs of trial in one of the superior courts not exceeding £150 (sec. 39).

"A scale of costs for debts or damages exceeding £20 has been framed and published under the provisions of sections 32 to 37.

"When a judgment does not exceed £20, the judge may order payment by instalments; in other cases the consent of the plaintiff is necessary (sec. 45).

"Section 49 provides, that if a judge of a superior court shall be satisfied that a party against whom judgment for an amount exceeding £20 (exclusive of costs) has been obtained in a county court, has no goods or chattels to satisfy the same, he may order a writ of certiorari to issue, to remove the judgment to one of the superior courts, and, when removed, it shall have the same force and effect, and the same proceedings may be had thereon, as in the case of a

be brought upon such judgment.

"Then follow clauses, as in previous acts, empowering landlords to recover possession of tenements, where the yearly rent or value of the property does not exceed £50, and where the term has expired, or been determined by notice.

"The act takes away the powers and responsibilities of the sheriff with respect to replevin-bonds and replevins; and the registrar of the county court of the district is empowered to issue all necessary process in relation thereto (sec. 63). An action of replevin may, however, be commenced in any superior court in the form applicable to personal actions therein; and if the replevisor shall wish to commence proceedings in any superior court, he shall, at the time of replevying, give security to the registrar, upon conditions enumerated in section 65. A defendant, however, has the power of removing an action of replevin by certiorari into the superior court, where a question of title is involved, or where the rent or damage in respect of a distress exceeds £20. An appeal is also given in actions of replevin and proceedings in interpleader, where the money claimed exceeds £20, and for the recovery of tenements where the yearly rent or value exceeds £20, and in all actions where the parties agree that the court shall have jurisdiction.

"The act then directs, where parties are required to give securities under the act, how such securities are to be given and enforced.

Acknowledgments of deeds by married women may be received by the county court judges (sec. 73).

"The salaries of the judges are to be paid out of the consolidated fund, and the travelling expenses out of money voted by Parliament (secs. 80, 81).

"The registrars are to be paid by salaries on the following principle: the registrar of a court in which the plaints entered do not exceed two hundred a year is to have £120 per annum; and where the plaints exceed two hundred a year, the salaries are to be increased by £5 for every twenty-five additional plaints up to one thousand plaints, and then by £4 for every twenty-five additional plaints up to six thousand, and such salaries shall be inclusive of all salaries to clerks and of all emoluments, except those receivable in proceedings in insolvency or protection; and in the courts in which the plaints exceed six thousand, the salary is to be fixed by the commissioners of the Treasury, but in no case shall the net salary to be allowed exceed the maximum of £700 per annum (sec. 82).

"The object of the Leases and Sales of Settled Estates Act is to give to the Court of Chancery power, in certain cases, to authorise leases and sales of settled estates, where it is deemed that such leases or sales would be proper, and consistent with a due regard for the interests of all parties entitled under a settlement; the word "settlement" signifying any act of Parliament, deed, agreement, copy of court roll, will, or other instrument, under which any hereditaments stand limited to, or in trust for, any persons; and the term "settled estates signifying all hereditaments of any tenure, and all estates or interests which are the subject of a settlement (sec. 1).

"Every such lease must take effect in possession, within the year after the making thereof, and may be for a term not exceeding twenty-one years for an agricultural or occupation lease; forty years for a mining lease, lease of water, or of rights or ease

Notes on the Common Law Procedure Act, 1854-Notes of the Week.

ments; and ninety-nine years for a building lease; or where the court shall be satisfied that it is the custom to grant longer terms, then for such terms as the court shall direct. On every lease the best rent is to be reserved; and where the lease is of any earth, coal, stone, or mineral, a certain portion of the rent reserved is to be set aside and invested (sec. 2).

"Every application to the court must be made with the consent of the tenant in tail under the settlement, where there is one, and he is of full age; and if there is more than one tenant in tail in succession, then the first of such tenants in tail; and all persons in existence, having any beneficial estate or interest under or by virtue of the settlement, prior to the estate of such tenant in tail, and all trustees having any estate or interest on behalf of any unborn child, prior to the estate of such tenant in tail; and, in every other case, the parties to consent shall be all the persons in existence having any beneficial estate or interest under the settlement, and also all trustees for any unborn child (sec. 1).

"Application to the court is to be by petition, preceded by notice, and the court cannot grant any application under this act where a similar application has been rejected by Parliament (secs. 19, 20, 21).

"All money to be received on any sale, or to be set aside out of the rent reserved on any lease, may be paid to trustees approved by the court, or into the Bank, to the account of the Accountant-General of the Court of Chancery, ex parte the applicant in the matter of this act; and in either case, such money is to be applied to one or more of the following purposes; viz.-The purchase or redemption of the land tax, or the discharge or redemption of any incumbrance affecting the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the several uses and trusts; or the purchase of other hereditaments, to be settled in the same manner as the hereditaments in respect of which the money was paid; or the payment to any person becoming absolutely entitled (sec. 23).

"The application of the money in manner aforesaid may, if the court shall so direct, be made by the trustees, without any application to the court, or otherwise, upon an order of the court upon the petition of the person who would be entitled to the possession, or the receipt of the rents and profits, if the money had been invested in the purchase of lands (sec. 24).

"Until the money can be applied, it is to be invested in exchequer bills, or in the three per cent. Consols, and the dividends paid to the parties entitled (sec. 25).

"The court is empowered to order that all costs incident to an application under this act shall be a charge on the hereditaments, and may direct that such costs shall be raised by sale or mortgage of a sufficient part of such hereditaments (sec. 29).

"Power is given to the Lord Chancellor, with the assistance of the equity judges, or of any three of them, as to proceedings in England, and to the Lord Chancellor of Ireland, with the assistance of the Irish Master of the Rolls, and of the Lord Justice of the Court of Appeal in Chancery, or of any two of them, so far as relates to proceedings in Ireland, to make rules and orders. Tenants for life of settled estates may grant leases for twenty-one years (sec. 32). Where a married woman applies to the court under the act, she must be examined apart from her husband; and no clause in any settlement

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restraining anticipation is to prevent the court from exercising the powers of the act (sec. 37).

"The act comes into operation on the 1st of November, 1856.

"With reference to sections 19, 20, 21, and 25 of this act, it may be observed that the bill, as presented by the Lord Chancellor at the beginning of last session, prescribed various ways in which the monies realised by a sale might be applied, but did not extend to investing them in Consols. Nor did the bill provide for public notice being given of any intended application to the Court of Chancery under the act, nor for any other persons but those directly interested in the property, being heard in the Court of Chancery. Nor did the bill preclude those who had failed in an application to Parliament from renewing their attempt in the Court of Chancery. The committee, therefore, petitioned the House of Lords to have these points provided for, but unsuccessfully, and the bill was sent to the Commons without the suggested amendments being inserted.

"In the Commons, however, the efforts of the committee were attended with success, the amendments being moved by Mr. Hadfield, and carried.

NOTES ON THE COMMON LAW PRO-
CEDURE ACT, 1854.

NEW TRIAL WHERE VERDICT UNDER £20. THE 17 & 18 Vict. c. 125, s. 44, which provides that when a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order, has not altered the rule upon which the courts have so many years acted, in refusing to grant a new trial on the ground of the verdict being against evidence, where the damages are under £20. Hawkins v. Alder, 18 Com. B. 640.

NOTES OF THE WEEK.

THE NEW COMMON LAW COMMISSION.

THE QUEEN has been pleased to appoint the Right Hon. Lord Campbell, the Right Hon. Lord Wensleydale, Sir Edward Hall Alderson, Knt., Sir Cresswell Cresswell, Knt., the Right Hon. Sir John Somerset Pakington, Bart., the Right Honourable James Archibald Stuart Wortley, Sir Frederic Thesiger, Knt., John Wilson Patten, Esq., and Horatio Waddington, Esq., to be Her Majesty's Commissioners for inquiring into the present arrangements for transacting the Judicial Business, Civil and Criminal, of the Superior Courts of Common Law in England and Wales. From the London Gazette of 5th December.

Master Walton, of the Court of Exchequer, we are informed will be the secretary to the Commission.

LAW PROMOTIONS AND APPOINTMENTS.

The Queen was this day (28th November) pleased to confer the honour of knighthood upon Benjamin` Chilley Campbell Pine, Esq., barrister-at-law, Governor and Commander-in-Chief of Her Majesty's Forts and Settlements on the Gold Coast.

Her Majesty has also been pleased to confer the honour of knighthood upon Henry Davison, Esq., of

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ACT

SETTLEMENT ON MARRIAGE OF INFANTS' CONSTRUCTION - INQUIRY INTO PROPRIETY OF MARRIAGE.

Semble, that the 18 & 19 Vict. c. 43, s. 1, only imposes upon the court the duty of seeing into the propriety of the proposed settlement, and not of the marriage of an infant, although, under some circumstances, it may be necessary to inquire into the propriety of the marriage, in order to decide upon the propriety of the settlement.

The sanction of the court was given to a settlement, upon the production of an affidavit verifying counsel's statement, that the infant's friends were quite satisfied as to its being a proper marriage, both as regarded the age and circumstances of the parties.

THIS petition was heard on the 6th instant by V. C. Stuart, to enable Miss Catherine Strong, an infant, to make a settlement of her property upon her marriage, under the 18 & 19 Vict. c. 43, s. 1, and upon which his Honor had directed an inquiry into the propriety of the marriage.

By the section, it is enacted that "it shall be lawful for every infant, upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement, or contract for a settlement, of all or any part of his or her property, or property over which he or she has any power of appointment, whether real or personal, and whether in possession, reversion, remainder, or expectancy, and every conveyance, appointment, and assignment of such real or personal estate or contract to make a conveyance, appointment, or assignment thereof, executed by such infant, with the approbation of the said court, for the purpose of giving effect to such settlement, shall be as valid and effectual as if the person executing the same were of the full age of twenty-one years."

Bagshawe, in support, referred to In re Dalton (6 De G. M'N. and G. 20), where the Lord Chancellor had held that the statute only imposed upon the court the duty of seeing into the propriety of the settlement, and not of the marriage, although, under some circumstances, the court had a right to do so, where it might be necessary to inquire into the propriety of the settlement, in order to decide the question whether the settlement was proper. Counsel also stated that, in the present case, the infant's friends

were quite satisfied as to the propriety of the mar. riage, both as to the age and circumstances of the parties.

The Court, therefore, without deciding as to the necessity of inquiring into the propriety of the marriage, said that, upon production of an affidavit verifying the statement of counsel, an order would be made sanctioning the proposed settlement.

Master of the Rolls.

Worthington v. M'Craw. Dec. 6, 1856.

TRUSTEE-LIABILITY FOR BREACH OF TRUST-ADVANCEMENT OF CONTINGENT LEGATEE.

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A testator gave a sum of money in trust for his son for life, and afterwards to his grandson, upon his attaining twenty-one years, with remainders over on his death under that age. It appeared that the trustee had advanced money to article the grandson during the father's lifetime, although there was no such power in the will: Held, that, upon the grandson attaining twenty-one, and his interest vesting, the trustee, who had acted bonâ fide, was not liable for the breach of trust.

A TESTATOR, by his will, gave a sum of money in trust for his son for life, and upon his death, to his (the testator's) grandson upon his attaining the age of twenty-one years, with remainders over upon his death before attaining that age, as therein mentioned. It appeared that the trustee had, during the lifetime of the tenant for life, advanced a sum of money to article the grandson, who was then still a minor. The grandson had since attained twenty-one, and his interest had thereupon become vested, and it was now sought to render the trustee liable, as for a breach of trust, for such advancement.

Cur. ad. vult.

The Master of the Rolls said that, although the trustee might have become liable to the parties entitled upon the grandson's death under twenty-one, yet, as between such grandson and the trustee, who had acted bonâ fide, he could not be held liable for a breach of trust.

Vice-Chancellor Kindersley.
Heap v. Jones. Dec. 6, 1856.

FORECLOSURE SUIT TRUSTEE OF MORTGAGED
PREMISES-DISCLAIMER-COSTS.

In a foreclosure suit, the trustee appointed by the mortgagor of the mortgaged premises was made

Recent Decisions: Vice-Chancellor Kindersley; Vice-Chancellor Wood.

a defendant, and in his answer he stated that he
had never accepted, nor acted in, the trust, and
he thereby disclaimed: Held, that he was entitled
to his costs as between party and party.

IT appeared in this foreclosure suit that the trustee
appointed by the mortgagor of the mortgaged
premises had been made a defendant, and that by
his answer he stated he had never accepted, nor acted
in, the trust, and by his answer he disclaimed.
case now on upon motion for a decree.

The

Renshaw for the mortgagee; Hall for the other parties.

The Vice-Chancellor made the decree as sought, and said that although the plaintiff was obliged to bring the trustee before the court, yet as by his answer and disclaimer it must be assumed he was not a trustee, and therefore not a proper party in reality, he was entitled to his costs as between party and party.

Vice-Chancellor Wood.

Dale v. Atkinson. Dec. 5, 1856.

WILL-CONSTUCTION-NEPHEWS RESIDING IN

THIS COUNTRY-SAILOR.

A testator gave certain property among all his nephews and nieces residing at the time of his death in this country. It appeared that the plaintiff was one of the nephews, and had been apprenticed to the merchant service, but he always returned to this country when not at sea, and occasionally went to Ireland where his wife's family resided. On the day of the testator's death he was in Ireland assisting in unloading his vessel, and was shortly afterwards discharged. There were other nephews in North America and in India: Held, that the plaintiff was entitled to a share in the bequest.

THE testator by his will gave and bequeathed certain property among all his nephews and nieces residing at the time of his death in this country. It appeared that the plaintiff, who was a nephew, was born in Durham, and afterwards apprenticed in the merchant service, but that when not at sea he always returned to Durham or went to Sligo in Ireland where his wife's family resided. On the day of the testator's death, the plaintiff was in Belfast harbour assisting in unloading his ship, and he was shortly afterwards discharged. There were other nephews living in North America and in India. W. H. Bennet and Hemings for the different parties.

The Vice-Chancellor said it appear hat the plaintiff had never abandoned his home in Durham where he generally returned, and that therefore, although the case was not free from doubt, he must be held to be entitled to share in the bequest.

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Section 31 of the 15 & 16 Vict. c. 86, does not apply to a case after decree.

No special order of the judge is required to compel the attendance of a witness summoned to attend in chambers before the examiner.

In this case, where a decree had been made to take the accounts, it was sought to cross-examine one of the defendants who had made an affidavit, and a summons was taken out for her attendance at chambers. She attended, but was not cross-examined, and an appointment was then obtained, of which she received notice, to attend before the examiner. She attended accordingly, and accepted £1, which was tendered for her expenses, but under the advice of counsel she refused to be sworn, on the ground that she had not been served with a subpoena. The examiner, Mr. Otter, now referred the question for the decision of the Court.

W. H. Terrell, for the plaintiff, referred to the 15 & 16 Vict. c. 86, s. 38, which enacts "that any witness who has made an affidavit filed by any party to a cause shall be subject to oral cross-examination within such time after the time fixed for closing the evidence as shall be prescribed in that behalf by any order of the Lord Chancellor, by or before an examiner, in the same manner as if the evidence given by him in his affidavit had been given by him orally before the examiner, and after such cross-examination may be re-examined orally by or on the part of the party by whom such affidavit was filed; and such witness shall be bound to attend before such examiner

to be so cross-examined and re-examined, upon receiving due and proper notice, and payment of his reasonable expenses, in like manner as if he had been duly served with a writ of subpoena ad testificandum before such examiner; and the expenses attending such cross-examination and re-examination shall be paid by the parties respectively, in like manner as if

the witness so to be cross-examined were the witness of the party cross-examining, and shall be deemed costs in the cause of such parties respectively, unless the Court shall think fit otherwise to direct ;" and to section 41, which provides that "in cases where it shall be necessary for any party to any cause depending in the said court to go into evidence subsequently to the hearing of such cause, such evidence shall be taken as nearly as may be in the manner hereinbefore provided with reference to the taking of evidence with a view to such hearing."*

Fooks contrà on the ground that a subpoena was required, and also that there was no order or direction from the judge.

The Vice-Chancellor said that if the witness required it she was entitled to be served with a subpoena as s. 38 did not apply to a case after decree. On the question whether any special direction from the judge

* Section 40 enacts that "any party in any cause or matter depending in the said court may by a writ of subpoena ad testificandum or duces tecum, require the attendance of any witness before an examiner of the said court, or before an examiner specially appointed for the purpose, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding before the Court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause; and any party having made an affidavit to be used or which shall be used on any claim, motion, petition, or other proceeding before the Court shall be bound on being served with such writ to attend before an examiner, for the purpose of being cross-examined: Provided always that the Court shall always have a discretionary power of acting upon such evidence as may be before it at the time, and of making such interim orders, or otherwise, as may appear necessary to meet the justice of the case.'

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Analytical Digest of Cases: Privy Council Appeals.

was necessary for sending a witness who had been summoned to attend in chambers before the examiner, it would be putting the parties to most unnecessary expense to hold that such was required, nor did s. 30† of the 15 & 16 Vict. c. 80, giving to the chief clerks the jurisdiction of the Masters in Chancery control the power of the examiner to take the evidence.

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A testatrix, who interested herself in collecting subscriptions for building a church at S., in Norfolk, by her will gave the residue of her property for that purpose, with a gift over, in case the bequest should be held void under the Mortmain Act (9 Geo. 2, c. 36). It was so held void, except as to £500, allowed by the 43 Geo. 3, c. 108, to be appropriated for such purposes; and this amount was carried to a separate account, and inquiries were directed for carrying out the objects of the testatrix. The Master found that a piece of land could be purchased at S., for £100, and that a

"Each chief clerk shall, for the purpose of any proceedings directed by the Master of the Rolls or any Vice-Chancellor to be taken before him, have full power to issue advertisements, to summon parties and witnesses, to administer oaths, to take affidavits and acknowledgments, other than acknowledgments by married women, to receive affirmations, and, when so directed by the judge to whose court he is attached, to examine parties and witnesses either upon interrogatories or vicâ voce, as such judge shall direct."

party interested in the bequest being declared void, would give £200, and that a chapel might be built for £450: Held, that, under these circumstances, the money would be continued to the separate account-the 1st Jan., 1858, to be fixed, and within the interval, the land must be secured, and the contracts entered into for building the church. It appeared that the testatrix in this administration suit had interested herself in collecting subscriptions for building a church at Stowbridge, in Norfolk, and that, on her death, she gave the residue of her property to effect that object, with a gift over, in the event of the bequest being held void under the Mortmain Act, 9 Geo. 2, c. 36. The gift had been held void, except as to £500, allowed by the 43 Geo. 3, c. 108, to be appropriated for building a church, and this sum had been carried to a separate account. Upon reference to the master, he had found that a piece of land could be obtained at Stowbridge for £100, and that a person interested in the bequest being declared void wonld give £200, and that a The case now chapel might be built for £450.

came on upon further directions.

Fleming for the executors; Selwyn for the residuary legatee; Wickens for the Attorney-General; Eddis for another party.

The Vice-Chancellor said that the master had found that it was possible to carry out the scheme of the testatrix, and that the matter was in progress. The money would, therefore, be still continued to the separate account; but January 1, 1858, would be fixed, when it must be shewn that the land had been secured, and contracts entered into for building the church.

ANALYTICAL DIGEST OF CASES.

SELECTED AND CLASSIFIED.

Privy Council Appeals.

ANNULLING PURCHASE.

See British Guiana.

APPEAL.

1. Restoring after dismissal - Recognizance · Sudder Court India.-Appeal from the Sudder Court in India, which stood dismissed under Rule 5 of the Order in Council of the 13th of June, 1853, for want of effectual prosecution restored, as the appellant was in ignorance of the existence of the new rules, the Sudder Court having served the appellant (after the interposition of the appeal) with notice that two years was allowed after the arrival of the transcript in England for prosecuting the appeal.

Where Government securities for the due prosecution of the appeal and costs were deposited in the registry of the Sudder Court, the judicial committee in restoring the appeal dispensed with the usual recognizance in England. Seto Luchmeechund v. Seto Zorawur Mull, 9 Moore, P. C. 351.

2. Leave to, obtained exparte-Dismissing-Costs.

-If leave to appeal be obtained exparte, the respondent may, as a matter of course, present a counter petition to dismiss.

Where an appeal had been granted exparte upon an allegation unfounded in fact, the judicial committee refused to hear the case, and dismissed the appeal with costs. Sibnarain Ghose v. Hullodhur Doss, 9 Moore, P. C. 354.

BOND.

See Marriage settlement.

BRITISH GUIANA.

Purchase at execution sale—Annulling on petition. -A. purchased, at an execution sale in British Guiana certain real estates, and having paid the purchase money into the registry of the supreme court, was put into possession by the Provost Marshal, but A., being unable to get a transport of the estates from the supreme court, as no title could be given, petitioned the supreme court for annulment of the sale, and return of the purchase money.

The supreme court refused to make any order, on the ground that admitting that an execution sale

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