« ElőzőTovább »
Metropolitan and Prov. Law Association.-Superior Courts: V. C. Wood.
but that a subscriber who pays up the arrears may be re-instated.
That no member who has ceased to be a member by non-payment of subscription shall be allowed to renew his membership without paying up his arrears, or obtaining the consent of the Committee.
Resolved,-6. On the motion of Mr. Shaw, of Leeds, seconded by Mr. Field, of London,
That it be referred to the Managing Committee to inquire into, and specially report upon the causes that have prevented the results of the Society from being commensurate with the importance of the subjects with which it deals, and to suggest the best
remedy for such causes, with power to associate any other members of the Association with themselves for the purposes of such inquiry and report.
Resolved,-7. On the motion of Mr. Beever, seconded by Mr. Shaw,
That the cordial thanks of the meeting be given to Mr. Shaen, the Secretary of the Association, for his valuable and useful services in support of the interests of the Association. Resolved,-8. On the motion of Mr. Shaw, seconded by Mr. Thorley, of Manchester,
That the best thanks of this meeting be presented to Mr. E. S. Bailey for his able conduct in the Chair.
RECENT DECISIONS IN THE SUPERIOR COURTS.
supplemental bill filed against him; provided that it shall be open to the party or parties so served, within such time after service as shall EQUITY JURISDICTION IMPROVEMENT ACT.be in that behalf prescribed by any general
Watson v. Loveday. April 19, 1855.
-ABATEMENT BEFORE HEARING.-SUP-
Where the plaintiff to a creditors' claim died before the hearing, held that a supplemental claim was required, and not an order to revive under the 15 & 16 Vict. c. 86, s. 52. THIS was an application under the 15 & 16 Vict. c. 86, s. 52, for an order to revive this creditors' claim upon the death of the plaintiff before hearing.
Hoare in support.
The Vice-Chancellor said, that a supplemental claim must be filed, as the section in question had reference to an abatement after decree.
Order on petition for the transfer of stock and payment of dividends transferred to the National Debt Commissioners at the expiration of three months from the petition and on the insertion of the proper advertisements.
THIS was a petition for the transfer of 100%. in the 3 per cents. which had been transferred in 1851 to the Commissioners for the Reduction of the National Debt. It appeared that in May, 1841, a lady of the name of Louisa Bloy 1 Which enacts, that "Upon any suit in the brokers, and instructed them to purchase for had called on the petitioners, who were stocksaid Court becoming abated by death, mar-her the above amount of stock, and she deriage, or otherwise, or defective by reason of some change or transmission of interest or lia
scribed herself as of Oxford Street. The stock
Vict. c. 62; Wickens for the Commissioners.
transfer of the stock and payment of the divi-
bility, it shall not be necessary to exhibit any bill of revivor or supplemental bill in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive or of the usual supplemental decree may be obtained as of course upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability; and an order so obtained, order of the Lord Chancellor, to apply to the when served upon the party or parties who ac- Court by motion or petition to discharge such cording to the present practice of the said order on any ground which would have been Court would be defendant or defendants to the open to him on a bill of revivor or supplebill of revivor or supplemental bill, shall from mental bill, stating the previous proceedings the time of such service be binding on such in the suit and the alleged change or transmisparty or parties in the same manner in every sion of interest or liability, and praying the respect as if such order had been regularly ob- usual relief consequent thereon: Provided also, tained according to the existing practice of the that if any party so served shall be under any said Court; and such party or parties shall disability other than coverture, such order shall thenceforth become a party or parties to the be of no force or effect as against such party suit, and shall be bound to enter an appear- until a guardian or guardians ad litem shall ance thereto in the office of the Clerks of Re-have been duly appointed for such party, and cords and Writs, within such time and in like such time shall have elapsed thereafter as shall manner as if he or they had been duly served be prescribed by any general order of the Lord with process to appear to a bill of revivor or Chancellor in that behalf."
Court of Queen's Bench.
justice will not be done by such amendment;
In re W. H. Barber. April 17; May 1, 1855. and the amendment shall be made upon
ATTORNEY.-RENEWAL OF CERTIFICATE.
Rule nisi granted for the renewal of the certificate of an attorney, where two former applications had been refused, on the understanding that the rule was to be argued upon the ground of new matter disclosed by the affidavits in support.
THIS was a motion for a rule nisi to renew the certificate of an attorney.
Sir Fitzroy Kelly and Macnamara in support.
such terms as the Court or Judge, by whom such amendment is made, shall think proper; and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended, as a variance, at the trial, in like manner as the misjoinder of plaintiffs has been herein before directed to be amended, and upon such terms as the Court or Judge, or other presiding officer, by whom such amendment is made, shall think proper."
Atherton in support.
The Court said, that the judgment by deLORD Campbell said,-"In the matter of fault became a mere nullity on the defendant's Barber, we have looked at the affidavits, and name being struck out, and the Statute should we think the rule should be granted to show receive a liberal construction. The rule would cause. It is granted on this express under-therefore be refused.
standing, only in respect of any new matter which can be shown to be disclosed by the affidavits. When the matter was the second time before the Court, and we refused the rule to show cause, we gave the clear intimation that that was to be considered as final. In spite of that, we are now told that there is new matter since that discovered. We gave permission for the application being renewed, but it was on the express condition that it should be confined to matter subsequently discovered, -the rule was accepted upon that condition, and when cause comes to be shown, we wish it to be understood that it is to be argued on the ground whether there is new matter disclosed by the affidavits which ought to alter the opinion which the Court before formed and expressed."
Graves v. Humphreys. April 19, 1855.
COMMON LAW PROCEDURE ACT.-STRIKING
On the trial of an action by an attorney
THIS was a motion, pursuant to leave reserved, for a rule nisi, to enter a nonsuit in this action, which was brought by an attorney to recover the amount of his bill of costs against two defendants, one of whom suffered judgment by default. It appeared on the trial that the plaintiff was retained by the other defendant alone, and the Judge thereupon amended the record by striking out the name of the second defendant.
By the 15 & 16 Vict. c. 76, s. 37, it is enacted, that "it shall and may be lawful for the Court or a Judge in the case of the joinder of too many defendants in any action on contract, at any time before the trial of such cause, to order that the name or names of one or more of such defendants be struck out, if it shall appear to such Court or Judge that in
Queen's Bench Practice Court.
(Coram Coleridge, J)
Chambers v. Wild. May 2, 1855. costs IN ACTION ABOVE 201., WHERE LESS PAID INTO COURT AND ACCEPTED.
In an action to recover a sum exceeding 20l., the defendant paid 81. into Court, which the plaintiff took out in full satisfaction of his debt: Held, refusing a rule to set aside the Master's allocatur, that the plaintiff was entitled to his costs.
THIS was a motion for a rule nisi to set aside the Master's allocatur allowing the plaintiff his costs in this action, which was brought to recover a sum exceeding 204., but in which the defendant had paid 87. into Court and the plaintiff had taken the same out in full satisfacCur, ad, vult. tion of his debt.
The Court said, that four of the other Judges had held that the plaintiff was entitled to his costs, and the rule would accordingly be refused.
Court of Common Pleas.
OF BANKRUPT.-LEASE UNDER LICENSE.
The defendant purchased certain copyhold property of the assignees of a bankrupt, and which were leased to a tenant with the license of a former lord of the manor. The bankrupt refused to attend the Court baron, and disclaimed his tenancy by letter. The defendant also refused to be admitted and pay the fine. In an action of ejectment by the lord: Held, that as the lease was a valid subsisting one, he was not entitled to recover possession.
THIS was a rule nisi to set aside the verdict for the defendant, and for a new trial of this action of ejectment. On the trial before Coleridge, J., it appeared that the defendant had purchased certain copyhold property from the assignees of a bankrupt, which had been let on lease with the license of a former lord of the manor, and that on such bankrupt being sum
Superior Courts: Common Pleas.-Exchequer-Crown Cases Reserved.
moned to attend a Court Baron, he refused to do so and disclaimed his tenancy by letter. The defendant also refused to attend to be admitted and pay the fine of 313., whereupon this action was brought.
Channell, S. L., and Lush showed cause against the rule, which was supported by Bramwell and Petersdorff.
The Court said, that a licence to demise amounted to a confirmation of a lease granted thereunder, and it was open to the defendant to show, that as there were valid leases subsisting, the plaintiff was not entitled to possession, and he must recover by the strength of his own title and not by the weakness of the defendant's. The rule would therefore be discharged.
Court of Exchequer.
Wilkinson v. Sharland. May 1, 1855. COMMON LAW PROCEDURE ACT, 1852. AMENDMENT OF DECLARATION.-ACTION
FOR FREIGHT.-" MONEY PAYABLE.
In an action for freight, the plaintiff omitted the words "money payable," as directed by Schedule B. to the 15 & 16 Vict. c. 76, but the defendant, instead of demurring, plead ed over, and on the trial the plaintiff cbtained a verdict. The defendant then moved in arrest of judgment, and on the motion being refused, brought error, which was pending: Held, that the Court had, notwithstanding, power to make the amendment on payment of all costs.
THIS was a rule nisi for leave to amend the declaration in this action, which was brought to recover freight, and in which the words "money payable" were omitted, as directed by Schedule B. to the 15 & 16 Vict. c. 76, and which directs, that "these words 'money payable by the defendant to the plaintiff' should precede money counts like 1 to 14,' but need only be inserted in the first." The defendant, instead of demurring, pleaded over, and on the trial the plaintiff obtained a verdict. A motion had been refused to arrest the judgment, from which decision the defendant brought error, which was now pending.
Knowles and Udall showed cause against the rule, which was supported by Watson and Chandless.
The Court held that they had jurisdiction, notwithstanding, to make the amendment, and that it ought to be allowed upon payment of all costs; and the rule was accordingly made absolute.
Johnson v. Diamond. May 2, 1855. ATTACHMENT OF DEBTS UNDER COMMON
demurrer to a declaration under the 17 & 18 Vict. c. 125, s. 64, that the plaintiff could not attach such bond debt, as the bond was only a covenant of indemnity, and not an acknowledgment of a specific debt. THIS was a demurrer to a declaration under the 17 & 18 Vict. c. 125, for the purpose of attaching a bond debt alleged to be due from the defendant to the debtor of the plaintiff. It appeared that the bond had been given by the defendant to the debtor on bringing an action against the plaintiff, and that it was condi tioned for the payment by the present defendant of the costs therein in the event of the debtor being unsuccessful. The action failed, and the amount of the plaintiff's costs was 1907. odd.
By the 64th section of the Common Law Procedure Act, 1854, it is enacted, that "if the garnishee disputes his liability, the Judge, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit; and the proceedings upon such writ shall be the same, as nearly as may be, as upon a writ of revivor issued under the Common Law Procedure Act, 1852."
Kingdon in support of the demurrer; Maynard and Slade contrà.
The Court said, that the bond was only a covenant to indemnify, and was not an acknowledgment of a specific debt, and did not come within the Act. The defendant was therefore entitled to judgment.
Crown Cases Reserved.
FORGING PART OF BANK NOTE.-CON-
The prisoner had obtained a 11. note of a
1 Sect. 61 enacts, that "it shall be lawful, for a Judge, upon the exparte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judgLAW PROCEDURE ACT, 1854. ment has been recovered, and that it is still The defendant gave a bond to a person, con- unsatisfied and to what amount, and that any ditioned for the payment of the costs of other person is indebted to the judgment an action he was to bring against the debtor, and is within the jurisdiction, to order plaintiff in the event of his nonsuccess. The that all debts owing or accruing from such action failed, and the present plaintiff's third person (hereinafter called the garnishee) costs amounted to 1901. odd: Held, on to the judgment debtor shall be attached to answer the judgment debt."
The count for freight is No. 13.
THIS was an indictment against the prisoner for forging part of what purported to be a note for the payment of money issued by a banking company under the 11 Geo. 4, and 1 Wm. 4, c. 66, s. 18. It appeared that he had obtained a 17. note of the British Union Banking Company, and cut out the centre and ornamental portions and taken the same to an engraver to be engraved, representing he intended filling up the centre with the title of some oil. No. tice was given by the engraver to the police. The question was reserved by Coleridge, J., as to the sufficiency of this evidence.
Bittleston for the prosecution.
Regina v. Rundle. April 28, 1855.
INDICTMENT AGAINST HUSBAND FOR ILL-
Held, that a husband whose wife is a lunatic,
Which enacts, that "If any person shall engrave or in anywise make upon any plate whatever or upon any wood, stone, or other material, any bill of exchange or promissory note for the payment of money, or any part of any bill of exchange or promissory note for the payment of money purporting to be the bill or note or part of the bill or note of any person or persons, body corporate or company carrying on the business of bankers (other than and except the Bank of England), without the authority of such person or persons, body corporate or company," &c., "every such offender shall be guilty of felony."
and living with him, cannot be indicted under the 16 & 17 Vict. c. 96, s. 9, for abusing and ill-treating her, as having the care and charge of her, but that it is an offence only at Common Law.
THE indictment in this case charged the prisoner that, having the care of his wife, who was a lunatic to his knowledge, he had abused On the trial before and ill-treated her. the prisoner was within the meaning of the 16 Crowder, J., the question was reserved, whether & 17 Vict. c, 96, s. 9, as having the care and
charge of his wife.
By this section it is enacted, that "If any superintendent, officer, nurse, attendant, servant, or other person employed in any registered hospital or licensed house, or any person having the care or charge of any single patient, or any attendant of any single patient, in any way abuse, or ill-treat, or wilfully neglect any patient in such hospital or house, or such single patient, or if any person detaining or taking or having the care or charge, or concerned or taking part in the custody, care, or treatment of any lunatic or person alleged to be a lunatic, in any way abuse, ill-treat, or wilfully neglect such lunatic or alleged lunatic, he shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence," &c.
Stock and Karslake for the prosecution. The Court said, that the Statute was not to interfere with the care and charge of a husband, which was purely of a domestic character, and that the offence could only be proceeded against under the Common Law.
ANALYTICAL DIGEST OF CASES,
SELECTED AND CLASSIFIED.
HOUSE OF LORDS' APPEALS.
Objection in respect of parties.-An objection in respect of parties to an appeal must be taken before the Appeal Committee. Owen v. Homan, 4 H. of L. Cas. 997.
Cause standing over indefinitely.—The House will refuse to allow a cause to stand over indefinitely, though upon an understanding that the appeal is to be compromised, but will require it to be proceeded with in its regular turn, or to be withdrawn. Mayor of London v. Combe, 4 H. of L. Cas. 1,089.
See Winding-up Act, 2.
marriage settlement, was seised of certain estates in the county of Clare for life, remainder to his sons successively in tail, subject to a charge of 5,000l. as a provision for younger children. B. S. was the eldest son of this marriage, W. S. another son, and there was a daughter Diana. J. S. afterwards purchased other estates, one of which was called K., which in 1806 he conveyed by way of mortgage security to the Bishop of Elphin. In February, 1807, he executed a deed, by which assuming to be the owner in fee of K., he conveyed it and other lands to trustees for himself for life, then to his eldest son B. S. for life,
remainder to the eldest and other sons of B. S. successively in tail.
This deed contained a covenant on the part of B. S. to pay J. S.'s debts, and to discharge a sum of 2,000l. which J. S. had undertaken to pay to pay to two chil dren of Diana; and also an assignment by J. S. of his personal estate in favour of B. S., who was thereby appointed the attorney of J. S., with power to call in the debts due to Voluntary or for value.-J. S., under his him. The deed was registered (apparently
See Partnership; Surety.
Analytical Digest of Cases: without the knowledge of J. S., or of W. S.) upon the 1st June, 1807. On the 13th June, 1807, by a deed, to which J. S., B. S., two trustees, and W. S. were parties, J. S. granted and B. S. confirmed to the trustees the lands of K. to J. S. for life, then to W. S. for life, remainder to his first and other sons in tail, with a power to each succeeding tenant for life to charge the same with a jointure for his wife; and by the same deed W. S. gave up his share of any benefit from the provision for younger children under his father's marriage settlement or otherwise. This deed was registered a few days afterwards. J. S. died in November, 1808, and W. S. entered into possession of the lands of K. W. S. married in 1815, and B. S. was a party to his marriage settlement, in which the lands of K. were included, and by which, under a power contained in the deed of June, 1807, W. S. created a jointure for his wife. B. S. paid his father's debts, satisfied the mortgage on the lands of K., obtained a re-conveyance of them to himself, and died in 1837, having allowed W. S. to remain in undisturbed possession up to that time. W. S. continued in possession, and died in 1843. The son of B. S. claiming under the deed of February, 1807, brought ejectment against the son of W. S., who relied on the deed of June for his title. At a trial of this ejectment, the jury found that the deed of February, 1807, was a voluntary deed, and that that of June, 1807, was given for a valuable consideration. The Court of Queen's Bench in Ireland directed a new trial, which took place, but the defendant did not appear, and the plaintiff obtained judgment against him by default. A bill was filed by the plaintiff in the Court of Chancery in Ireland to have the trusts of the deed of February, 1807, carried into execution, and that Court decreed accordingly.
Expectation of property.—Promise to make a settlement.-On a treaty respecting the mar riage of H. M., who was believed to have considerable expectations from his uncle, H. E., the guardians of the lady desired a settlement; and H. M. addressed a letter to H. E., who answered,-"I have made my will, and left you my property in the county of T., which is very considerable." The guardians still refused their consent, "until a suitable settlement shall be made by Mr. H. E. of real estate upon the marriage, in the usual course of settlement, and until the sum of 10,000%. shall be secured to the trustees of the estate" of the father of the lady, from whom H. M. had some time before borrowed that money, in order to become a partner in a bank. The resolution of the trustees was communicated to H. E., who in September, 1815, wrote,-" My sentiments respecting you continue unalter able; however, I shall never settle part of my property out of my power while I exist; my will has been made for some time, and I am confident that I shall never alter it to your dis
advantage. I have mentioned before, and I again repeat, that my county of Tipperary estate will come to you at my death, unless some unforeseen occurrence should take place. I have never settled anything on any of my nephews, and I should give cause for jealousy if lution I have long made." This answer was,
I was to deviate in this instance from a reso
Held, that the decree was right; that after what had occurred at law, it must be assumed that the deed of February, 1807, was given for a valuable consideration, and that the deed of June, 1807, was a voluntary deed; and further, at the desire of H. E., communicated to the that the subsequent marriage of W. S., and the circumstances attending it, did not constitute his children purchasers for value under the latter deed, which could not prevail against an earlier and a previously registered deed that had been executed for a valuable consideration.
Scott v. Scott, 4 H. of L. Cas. 1065.
See Interference with Property.
guardians, who, in March, 1816, consented to the proposed marriage which accordingly took place in July of that year. A settlement was then drawn up, in which it was recited, that "H. M. has reason to expect that he will, upon the decease of H. E., become entitled by virtue of the will of H. E. to a certain portion of his estate and property, pursuant to the declaration of H. E. contained in his letter to H. M. of September, 1815." H. E. was made one of the trustees of the settlement, and about 12 months afterwards he executed the deed; but there was no evidence that he knew anything of its contents beyond the Pending suit.-Married woman.-Separate fact that he was named as one of the trusestate.-Diligence.—It is a matter of discretion tees. H. E. afterwards devised his property for the Court of Chancery, whether it will or to other persons. will not interfere by interim order respecting the property of a litigant. If the property is in medio (in the actual enjoyment of no one), the Court will interfere for the benefit of all concerned.
INTERFERENCE WITH PROPERTY.
Held, affirming the decision of the Court below, that H. M. could not maintain a suit to compel the trustees under the will of H. E. to convey the Tipperary estate to him, for that H. E's letters did not amount to a contract to