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130 Law of Costs.-Attorney's Privilege from Arrest.-Audience of Attorney in Sup. Courts.

LAW OF COSTS.

WHERE RULE NISI DROPS, ON JUDGES
BEING EQUALLY DIVIDED.

UPON a rule nisi for the new trial of an action being obtained, the Court were equally divided in opinion, and the rule accordingly dropped.

Lord Campbell said,-" In the House of Lords, when the Lords are equally divided in opinion, the respondent is successful; for a decision in his favour is made on the principle semper presumitur pro negante. But when this Court is equally divided on a rule, there is no decision, and no successful party. * * * As this is the case of a proceeding for setting aside a verdict on the ground of misdirection, the Judges being equally divided, and the rule dropping on that proceeding, there will be no costs on either side. We find an express de-a cision of the full Court, in Chilton v. London and Croydon Railway Company, (Exch.) Trin. Term, 1848, and by that we mean to abide." Dansey v. Richardson, 2 Com. Law Rep. 1467.

ON APPEAL FROM CERTIFICATE OF JUS

TICES STOPPING UP HIGHWAY.

attendance on a certain day. The attorney went to the place appointed, believing it to be the usual magistrates' meeting-day in that town. He was arrested as he got down from the coach he travelled by.

Mr. Hope, on the part of the applicant, sub-
mitted that the case was the same in principle
as many
others that had been decided. The

attorney was going before a magistrate to re-
present his client in a case in which a violent
client's house, and the intruder would not go
had been taken and retained of his
possession
out. The idea of waiting for two or three
weeks (it might probably be) for an ordinary
magistrates' meeting in a provincial town
would be out of the question, and he argued
that besides the ordinary power of magistrates
(in questions of violent entry, &c.,) there was
peculiar power given to magistrates under a
Statute of Richard to summon a jury, and if
the jury should find that "force" had been
used to get possession (no matter what was
the colour of right between the parties), the
magistrate had power to restore possession,
even by force, and put the parties in their
former position to try the question legally.
Mr. Pullen, who appeared for the execution
creditor, was not called upon, for

Held, that the 5 & 6 Wm. 4, c. 50, s. 90, which enacts that "the Court of Quarter Sessions is hereby authorised and required to The learned Baron held, that it was no priaward to the party giving or receiving notice vilege, and that the Judges were decided in of appeal such costs and expenses as shall be not extending the cases of privilege to attorincurred in prosecuting or resisting such ap-neys or counsel.

peal, whether the same shall be tried or not,

SUPERIOR COURTS.

and such costs and expenses shall be paid AUDIENCE OF ATTORNEY IN THE by the surveyor or other party as aforesaid, at whose instance the notice for diverting and turning or stopping up the highway, either A MIDDLESEX magistrate gave possession entirely or subject as aforesaid, shall have to a landlord of premises as deserted on the been given," is imperative, and that the Court day preceding the last day of Term. Under the 11 Geo. 2, c. 19, s. 16, there is a right of of Quarter Sessions has no discretion to dis- appeal "summarily" to the "Judges" of the allow such costs in any particular case. Re- Queen's Bench or Common Pleas (not Exchegina v. Surveyors of Finchley, 2 Com. Law quer). Application having been made to Mr. Justice Cresswell at Chambers, he was clearly Rep. 1593. of opinion that the subject must go to the full

ATTORNEY'S PRIVILEGE FROM

ARREST.

A CASE recently came on before Mr. Baron Martin at Chambers, in which an attorney, arrested in a western county, claimed to be privileged, on the ground that having been previously retained by a client in a case requiring summary proceedings by a magistrate that he was privileged eundo, &c. The client, after previous consultation, had sent specially, a distance of 20 miles, requiring the attorney's

Court.

Mr. Hope, the attorney for the tenant had scarcely time to get up the necessary affidavits, but a learned counsel who had previously advised on the case had promised to be in Court by four o'clock, or request a friend to make the

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Want of Room and Ventilation in the Courts at Westminster.—Admiralty Court Fees. 131

then mentioned to the learned Judges the position he was placed in, and pointed out that the delay of waiting till next Term to seek restitution might be as injurious to the landlord if he should relet, as the tenant who was expelled, and

"The complaints made by the jury who tried the above case of the room to which they retired were doubtless well founded, but it might be supposed that having sat in the Court itself for three days, they would have been glad to escape anywhere from so foul an atmosphere. The Lord Chief Justice allowed the motion Our Courts of Common Law are admittedly to be made by Mr. Hope, as attorney for the not only inconvenient, but totally inapplicable tenant, and after reference by Mr. Justice to the purposes to which the fantastic imaginaWightman to the Statute referred to, the rule tion of the architect designed them; and in no was granted; and on the further suggestion of case has this been more fully exemplified than Mr. Hope to have the rule returnable at during the progress of the cause above reported. Chambers, Mr. Justice Erle said, the rule The thermometer was at a height which we are should be made returnable next Term, with afraid to name lest the statement should appear an intimation that it might be taken at fabulous; but this we may state, that several Chambers if the landlord consented. This persons-women particularly-had to retire rule was drawn up at the Crown Office, and oppressed by the heat and stench. But inconwe understand the matter has been amicably venient and ill-contrived as the Court is, we adjusted.

cannot but believe that much of the inconvenience might be remedied if the simple plan,

WANT OF ROOM AND VENTILATION found so efficacious in the city Courts, were

IN THE

COURTS AT WESTMINSTER.

Ir may be useful to record the annoyance and inconvenience which the Court and jury, and all connected with the administration of Justice, experience in Westminster Hall, in order that when the question of new Courts and offices again comes before Parliament, the evils which prevail may not be forgotten. On the trial of an action in the Court of Queen's Bench on the 6th instant, the jury were directed by Lord Chief Justice Campbell to retire for the purpose of considering their verdict, when the following appeal was made to the Court:

The Foreman." I hope, my lord, if we are to retire, your lordship will direct us to be shown to a better room. The room we were in is up five flights of stairs."

Lord Campbell.-"I am really very sorry, gentlemen; it is very disgraceful, but I have no better room for you."

The Foreman.-Up five flights of stairs, and some of us had great difficulty in getting up. There was somebody at the top of the stairs, with no candle in his hand, calling out to us, Come along, come along.'"

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"The jury then retired, and on their return, stated they considered the total loss to be 7001., including 2007., the value of some hardwood alleged by the plaintiff to have been covered by the insurance which was denied by the defendants, and was to have depended on the construction which the Court put on the word therein' in the policy.

"It was then agreed by counsel to split the difference,' and a verdict was entered for the plaintiff-Damages 6001.

"The Court did not rise till a late hour." The reporter of the Daily News then remarks on the state of the Court as follows:

adopted of keeping entrances for counsel, attorneys, witnesses, and others who are immediately concerned, apart from that by which the general public finds ingress. The discomfort which is endured by all is in a considerable

degree experienced by those whose duty it is to report the proceedings of the Court, and who do so without being subjected to the intrusion might not unreasonably hope to be permitted to of persons who have no business in the box allotted to their use. To such an extent has this intrusion been carried on, that it is with the utmost difficulty that we have been enabled, in cases of public interest, to perform compelled to appeal to the officer of the Court, our duties, and during the above trial we were who courteously expresed his regret that it was not in his power to remedy the grievance. We must therefore hope that the matter will attract the attention of a higher authority."

The Times of the 11th December observes, that

"The state of the Court and the inconvenience of the arrangements for the accommodation of all persons having to frequent it have again and again, during the present sittings, been the subject of complaint.

"Lord Campbell expressed his concurrence in the complaints so made, and said it was necessary that something should be done, and he hoped that some of the evils complained of would be remedied without delay."

ADMIRALTY COURT FEES.

HER MAJESTY has been pleased, by and that from and after the 1st day of January, with the advice of her Privy Council, to order 1855, and until her Majesty shall be pleased otherwise to direct, the fees in the schedule annexed to such order, marked from No. 1 to No. 73 inclusive, shall be substituted in lieu of the fees now payable to the Judge, Registrar, Merchants, and Marshal of the High Court o

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Admiralty of England, and which, under the provisions of the Act of the 3 & 4 Vict. c. 66, are now carried to the Fee Fund of the said Court.

And her Majesty was further pleased, by and with the advice of her Privy Council, to order that all the said fees numbered from No. 1 to No. 73, inclusive, shall, from the day aforesaid, be collected by means of stamps, whether adhesive or affixed and under such regulations as the Judge of the said Court shall direct.

Attorneys to be Admitted.

shall, from the said 1st day of January, 1855, be payable to the Seal Keeper of the said Court, in lieu of the fees now payable to him in respect of that office.

And her Majesty was also pleased to order, that in lieu of the fees now payable to the Crier of the said Court, there shall, from the day aforesaid, be payable to him a uniform fee of 5s. on every interlocutory decree, sentence, or motion in Court, to be paid by the party in whose favour such decree or sentence has been And her Majesty was also pleased to order given, or by whom such motion has been made. that the fees in the schedule annexed to such-From the London Gazette of 12th December, order marked from No. 74 to No. 76, inclusive, 1854.

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Attorneys to be Admitted.-Correspondence.-Notes of the Week-Court of Chancery. 133

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Sandys, Edwin, 9, Bedford-place, Russell-square. J. T. Cookney, 5, Lamb's-Conduit-place

Notice of Application for Re-admission on the last day of Hilary Term, 1855.
Kensit, Henry, 37, Inverness-terrace, Bayswater; and Hyde-park-gate, South.

SELECTIONS FROM CORRESPONDENCE.

CONFLICTING ENACTMENTS AS TO RECOVERING ARREARS OF RENT.

By the 3 & 4 Wm. 4, c. 27, s. 42, no arrears of rent shall be recovered by distress or suit, but within six years after the same shall become due.

By the 3 & 4 Wm. 4, c. 42, s. 3, all actions of debt for rent on an indenture of demise must be commenced within ten years after the end of that Session, or 20 years after the cause of action.

On these apparently conflicting enactments, it was held, in Paget v. Foley, 2 Bing. N. C. 679, that, as to action for rent on an indenture of demise, the latter Act (having last received the Royal Assent) must prevail.

AMICUS.

NOTES OF THE WEEK,

LAW APPOINTMENTS.

Mr. Henry Veal, of Grimsby, has been appointed a Commissioner to administer Oaths in Admiralty in England.

Mr. John Atkinson has been appointed Clerk to the Burial Board of the town of Whitehaven.

Mr. W. Corbett, jun., has been elected Auditor for the Shropshire and Montgomery Poor Law Audit Districts, in the room of Mr. Fisher, deceased.

Mr. Henry Hough has been elected one of the Coroners for the county of Rutland, in the room of Mr. J. E. Jones, deceased.

EXCHEQUER OF PLEAS.

We are informed that the Sittings at Nisi Prius in Term in London will be abandoned during next Term, it having been found that the system is one which tends to impede the business in Banco more than it advances that at Nisi Prius.

SOLICITORS ELECTED AS MAYORS.

Northampton, Mr. William Dennis. Kidderminster, Mr. Henry Saunders, sen. Tynemouth, Mr. John W. Mayson, of North Shields.

RECENT DECISIONS IN THE SUPERIOR COURTS.

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transferred by such form to the appellant, but no notice in writing was given to the purser, but the parties went to him with the transfer and he entered it: Held, confirming the decision of Vice-Chancellor Stuart, that the appellant's name was rightly on the list of contributories upon the company being wound up, although at the time of the transfer the company was in an embarrassed state.

THIS was an appeal from the decision "of Vice-Chancellor Stuart, from which it appeared that the appellant's name had been placed by the Master on the list of contributories to

134

Superior Courts: Court of Chancery.-V. C. Kindersley.-V. C. Stuart.

plaintiff to enter an appearance for a defendant upon his not appearing within three weeks after being served with a copy bill of revivor. Bromehead in support.

The Vice-Chancellor said, that an order might

Brian v. Twigg. Nov. 9, 1854.

the above company, in respect of 65 shares
which had been transferred to him from a Mr.
Sudbury, a short time before the order for
winding up the company was obtained and
while their affairs were in an embarrassed
state. It appeared that no written notice of be taken upon an affidavit of the service.
the transfer was given to the purser pursuant
to the 23rd rule of the company, but that both
the parties went to the purser at the company's
offices with the transfer, which was in the
proper form, and he then transferred the
shares from Mr. Sudbury's into the appellant's
name. It also appeared that notices of the
meetings and proceedings of the company
were afterwards sent to Mr. Sudbury as well
as to the appellant. The Vice-Chancellor
having held that the appellant was a contribu-
tory, this appeal was presented.

Malins and Cairns in support; Bacon and W. Hislop Clarke for Mr. Sudbury; Roxburgh for the official manager.

OF COMMITTEE OF LUNATIC DE-
DEATH
FENDANT AFTER DECREE, SUBSTITUTION
OF NEW COMMITTEE.

An order was made on motion, substituting
the name of the new committee of a lunatic
defendant, upon the death of the former
committee, also a defendant, after the de-

cree.

THIS was a motion for an order to substistute the name of the new committee of a lunatic defendant, upon the death of the former committee, also a defendant, after the decree.

W. Hislop Clarke in support, cited Johnson v.Legard, 2 Mad. Princ. & Pract. 523, and Lyon v. Mercer, 1 Sim. & S. 356.

The Vice-Chancellor accordingly made the order as asked.

Vice-Chancellor Stuart.

In re Cabell. Nov. 24, 1854. PAYMENT OF SMALL FUND IN COURT TO HUSBAND ON DEATH OF WIFE, WITHOUT ADMINISTERING.

An order was made on petition for payment to their respective husbands of two sums of 801. and 50l. to which two married women were entitled and which had been paid into Court under the 10 & 11 Vict. c. 96, notwithstanding they had not taken out letters of administration.

THIS was a petition for the payment out of Court of two sums of 80l. and 50%. odd, to

of the Court, duly served with

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bill

The Court said, that there was no doubt whatever but that the appellant had taken the shares from Sudbury, and had placed himself, as far as the company was concerned, in his position. The case could not be distinguished from Fenn's case, 22 Law J., N. S., Ch., 692, which decided that a shareholder transferring his shares had absolved himself from all responsibility under the 24th section of the Winding-up Act, and the observations of Lord St. Leonards in the case of Cape's Executor, 2 De G., M'N. & G. 562, were in principle to the same effect. The deed of partnership provided that a partner should be at liberty to transfer his shares, and this must necessarily mean that the transferee was to be put in the place of the transferor, and this was confirmed by the language of the transfer which conveyed to the transferee everything possessed by the transferor in the company. But independently of this, the mere fact of a partner being empowered to transfer carried with it all the rights and liabilities of the transferring shareholder and substituted the other in his place. The appeal" and refuses or neglects to appear thereto would therefore be dismissed. within eight days after such service, the plaintiff may, after the expiration of such eight days and within three weeks from the time of such service, apply to the record and writ clerk to enter an appearance for such defendant: and no appearance having been entered, the record and writ clerk is to enter such appearance accordingly, upon his being satisfied by affidavit that the" copy bill "was duly served upon such defendant personally or at his dwellinghouse or usual place of abode; and after the expiration of such three weeks, or after the time allowed to such defendant for appearing has expired, in any case in which the record and writ clerk is not hereby required to enter such appearance, the plaintiff may apply to the Court for leave to enter such appearance for such defendant; and the Court, being satisfied that the" copy bill "was duly served, and that no appearance has been entered for such defendant, may, if it so thinks fit, order the same accordingly."

Vice-Chancellor Kindersley.

Price v. Hamlett.

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Nov. 9, 1854.

BILL OF REVIVOR. ENTERING APPEAR-
ANCE FOR DEFENDANT NOT APPEARING
IN THREE WEEKS.

An order was made under the 29th Order of
May 8, 1845, for leave to the plaintiff to
enter an appearance for a defendant, upon
his not appearing within three weeks after
being served with a copy bill of revivor,
upon an affidavit of such service.

THIS was a motion under the 29th Order of May 8, 1845,' for an order for leave to the

Which provides, that "if any defendant, not appearing to be an infant or a person of weak or unsound mind, unable of himself to defend the suit, is, when within the jurisdiction

a copy

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