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Superior Courts: V. C. Kindersley.-V. C. Wood.
made primâ facie upon it. This had been done, and no order could, therefore, be made on the present petition. With respect to the costs, there had been an omission to search at the Rolls' secretary, and the petitioners must pay the respondents' costs; and no costs would be allowed of any affidavits filed since the order had been made at the Rolls.
Smale v. Hodgson. June 21, 1856. MASTERS' ABOLITION ACT.-MASTERS' REPORT OF
The parties to a suit were summoned before the Master, under the 15 & 16 Vict. c. 80, s. 7, and a report was made under s. 8 on the whole case as to the cause of delay: Held that such report was general, and was properly set down on further directions.
Ir appeared that the parties to this suit had been summoned before the master under the 15 & 16 Vict. c. 80, s. 7, which enacts that "in order as expeditiously as may be to wind up all the causes, matters, and things which may from time to time be depending before or have been referred to the Masters in Ordinary of the said court, it shall be lawful for every master, at any time after the passing of this Act, to summon as he shall deem fit all or any of the parties to any cause, matter, or thing so depending, or their solicitors, and thereupon to proceed with such cause, matter, or thing, and give such directions and make such order as he may think necessary for the purpose of settling and winding up the same; but any such order shall be subject to be discharged or varied by the Court upon application made for that purpose; and the master shall be at liberty to proceed for the purposes aforesaid in the absence of any of the parties or solicitors neglecting or refusing to attend the summons ;" and he had reported generally on the whole case on the cause of the delay under s. 8, which provides that in case the master shall be unable, by reason of the conduct of parties, or otherwise, to finally dispose of any cause, matter, or thing, he shall be at liberty to dispose of any part thereof within his power, and to report or certify on the whole of the case; and upon such report or certificate the Court shall make such order as it shall think proper on all or any of the parties, for the further prosecution of the suit or matter, or for the final disposal thereof, and for the payment of the costs thereof, including any of the costs which may have been incurred by reason of the conduct of the parties."
The case had been set down on further directions. Glasse, G. Simpson, Giffard, and C. M. Roupell for the several parties.
The Vice-Chancellor (after consulting Mr. Registrar Metcalfe), said that the report was general, and had been properly set down upon further directions.
Vice-Chancellor Wood. Manby v. Bewicke. June 5, 1856. SECURITY FOR COSTS.-PLAINTIFF'S NON-RESIDENCE
An application was granted for security to be given for costs by a plaintiff, a labourer, who had not resided at the place where he was described of in the bill since April, 1855, and his solicitor refused to give any information where he could be found, and although he duly paid his rent for such residence.
THIS was an application for an order on the plaintiff
to give security for costs. It appeared that plaintiff was a labourer, and rented a cottage at Louth in Lincolnshire, and had duly paid his rent, but that he had not been there since April, 1855, and his solicitor refused to give any information as to where he could be found.
Toller in support, citing Bailey v. Gundry, 1 Keen, 53. C. L. Webb contrâ.
The Vice-Chancellor said that on the authority of the case cited the usual order must be made for security for costs.
Otter v. Vaux. June 20, 1856.
MORTGAGOR AND MORTGAGEE. SECOND MORTGAGEE'S RIGHT WHERE MORTGAGOR PURCHASES UNDER POWER OF SALE IN FIRST MORTGAGE.
A mortgagee sold under a power of sale, which was not expressly recited in a second mortgage, although the latter was subject to such mortgage, and the mortgagee covenanted for title except as appeared by those presents. The mortgagor bought of such purchaser, and the purchase-money was insufficient to pay the mortgage debt: Held that the second mortgagee was entitled to have a conveyance of the legal estate from the last mortgagee from the mortgagor.
appeared that an estate was mortgaged to a Mr. Goode, with the usual power of sale upon default in payment of the mortgage money, and that the same property was afterwards mortgaged to Mr. Geach (of whom the plaintiff was transferee). This latter mortgage was made subject to the prior mortgage, which was recited in the deed, but no notice was taken of the previous power of sale; but the mortgagor contended for title in the usual manner, free from incumbrances except as appears by these presents," and also for further assurance. Mr. Goode exercised his power of sale and sold to a purchaser, from whom the mortgagor subsequently bought, but the purchase-money was insufficient to discharge the mortgage debt, and he then mortgaged to one Mostyn, who, however, had notice of the mortgage to Mr. Geach, and his transferee filed this bill for a conveyance of the legal estate.
W. M. James and Giffard for the plaintiff, cited Toulmin v. Steere, 3 Mer. 210.
Rolt, Amphlett, R. R. A. Hawkins, and C. M. Roupell for the defendants.
The Vice-Chancellor said that the power of sale was a mode of enforcing payment of the debt, and was now usually inserted in mortgage deeds; and that any one taking subject to a prior mortgage must be considered as having notice of its contents, and therefore of the power of sale. If the mortgagor had simply paid off the first mortgage, the effect would be to set up the second mortgage, and the mortgagor would not be able to set up the anterior charge against it, and there was no difference between that case and the present. The mortgagor could not set up the transaction against his own act, and it was analogous to the rule that a mortgagor could not, by obtaining an assignment of the mortgage debt to a trustee for himself, set up such assignment against a subsequent mortgagee. Then it was argued that where an estate produced a surplus the second mortgagee would be getting a lien both on the surplus and on the estate; but the mortgagor would have the full benefit of this, as the charge of the second mortgagee on the estate would be not for his whole debt, but only for such part as the surplus was insufficient to discharge. The estate in the
Superior Courts: Court of Queen's Bench.-Court of Exchequer.
mortgagor's hands was therefore liable to the plain- |
Court of Queen's Bench.
May 31, 1856.
COUNTY COURTS' ACT.-CERTIFICATE FOR COSTS,
diately after the making of such bill of sale or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inventory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occuIn an action for nuisance before a Serjeant-at-pation of the person making or giving the same, Law in the Commission of Assize, the plaintiff obtained 40s. damages, and a certificate was granted for a special jury, and that the action was brought to try a right: Held that the Serjeant had power to certify for costs under the 13 & 14 Vict. c. 61, s. 12, after the trial.
THIS was an action for a nuisance, and on the trial
The Court said that the section did not provide the certificate could only be given at the trial, and the learned Serjeant having co-ordinate power with a Judge of the Superior Court as acting under the Queen's Commission of Assize, could give the certificate asked for.
Queen's Bench Practice Court.
In re Wright. June 7, 1856.
BILL OF SALE.-AFFIDAVIT.-PRACTICE.
The affidavit of execution of a bill of sale under the 17 & 18 Vict. c. 36, was taken before a Country Commissioner to administer oaths in Chancery, instead of a Commissioner in the Queen's Bench. A second copy was filed with the affidavit properly sworn: Held, that the course was to move for leave to take the first bill of sale and affidavit off the file.
Ir appeared that the affidavit of the execution of a bill of sale had been sworn at Bristol before a Country Commissioner to administer oaths in Chancery instead of a Queen's Bench Commissioner. After the bill of sale was filed, a fresh affidavit had been made, and the bill of sale was again filed with the second affidavit.
&c., be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench, within 21 days after the making or giving of such bill of sale (in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed)."
Keane now applied for leave to add a memorandum in respect of the first bill of sale.
The Court said, that the proper course would be to move for leave to take the first bill off the file, and granted the rule accordingly.
Court of Exchequer.
Jessel v. Chaplin. May 24, 1856.
A rule was made absolute for an injunction to re-
THIS was a rule nisi for an injunction on the defendant to restrain him from continuing to obstruct the ancient lights of the plaintiff. An action had been brought in which the plaintiff obtained a verdict.
By the 17 & 18 Vict. c. 125, s. 79, it is enacted that"in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress "; s. 80 enacts that "the writ of summons in such action shall be in the same form as the writ of summons in any personal action; but on every such writ and copy thereof there shall be endorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction; and s. 81 that "the proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions herein before contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience, such writ of injunction may be enforced by attachment by the Court, or when such Courts shall not be sitting by a Judge."
Montague E. Smith showed cause against the rule. The Court (without calling on Bovill in support), said that the rule would be made absolute for an injunction, notwithstanding it involved the pulling down so much of the building as obstructed the plaintiff's enjoyment of his ancient lights.
REMARKABLE CASE OF CIRCUMSTANTIAL EVIDENCE.
A WEALTHY PAUPER.
A CONSIDERABLE time ago a beggar, at Dundee, feigned the character so well as to be maintained as a parish pauper, and buried at the public expense, but who all the while had contrived to amass the respectable sum of £700, as appeared by bank receipts found by accident after his death concealed in part of his tattered garments. No sooner was this discovery made, then a host of relatives started up from all quarters, though poor John M'Kay had experienced none of their attentions during his lifetime. An application was made to the sheriff, in his capacity of commissary, to grant a warrant for the exhumation of the body of the deceased, in order that the alleged relatives might have an opportunity of establishing his identity, and what was more, of proving the resemblance betwixt the dead and the living. Among the claimants was one Margaret M'Kay, who came forward as the pretended daughter of the deceased. Among the notabilities summoned to witness the act of legal resurrection were the Provost of Dundee, Bailie M'Kay, a namesake of the departed, besides several doctors and lawyers. And strange to say, they all testified, under their hands and seals, that "the features of the face and forehead, &c., of the deceased and Margaret M'Kay being compared by the medical gentlemen, the resemblance was apparent." With such a favourable start in the litigation, Margaret counted with certainty upon clutching the coveted prize. But another claimant appeared in the person of William M'Kay, who in the end proved to be the genuine offspring of
the deceased John.
The way in which William's claim was established was somewhat remarkable. Mr. Rollo, who at the first acted as agent for a cousin of the deceased, learned from him that the beggar had a son who had gone to Australia a great many years ago, but of whom nothing had been heard for a long time; that his mother was one Jean Storrier, but that she and the beggar were never married, and, consequently, although alive, the son could have no claim. Shortly afterwards Mr. Rollo, being in Leith, heard accidentally of an old woman with whom the beggar used to lodge when in that quarter, and from her he got a parcel of documents which the beggar left with her shortly before his death. Her narrative entirely agreed with and corroborated that of the cousin, except on the essential point of the marriage, the informant stating that when a young man the beggar
asked her in marriage, but she declined the honour;
and she understood he was afterwards married to Jean Storrier, having had a son by her previous to his marriage. The documents on inspection contained the regular marriage certificate of the beggar and Jean Storrier, who were married at Musselburgh on 19th December, 1803; his discharge from the militia; and various affectionate and filial letters from his son, with his address, and sending various small sums to assist his father, and expressing great regret that his earnings would not admit of his sending more; and that the only thing that vexed him was to think of his father being in poverty as his letters indicated; and earnestly soliciting him to direct his attention to more lasting and durable riches than this world could afford. Mr. Rollo immediately lodged a claim for the son, and wrote to various addresses found in the letters. By the first
return of the mail from Australia he received various letters from the beggar to his son, bearing the post marks, and in particular, one from Mr. Jack, surveyor of taxes, who always took an interest in the old man, who had been in the militia under him, and referring by date to the very letters from the son amongst the papers mentioned. There also accompanied these a power of attorney, on receipt of which Mr. Rollo laid the whole before the agents of the opposing claimants, and urged a settlement without incurring farther expenses, and in the case of one of the claimants agreed to pay a sum towards expenses incurred; and to the credit of these agents, on the evidence produced, they withdrew from the contest, and the son has now and deservedly been preferred.-[Abridged from the Dundee Courier, June 11, 1856.]
NOTES OF THE WEEK.
THE Judges have arranged that at Abingdon and Oxford both Courts should sit for the despatch of business on the commission day.
NON-ATTENDANCE OF JURYMEN.
At the sittings at Nisi Prius at Westminster, before Lord Campbell, on the 21st instant, five jurymen were fined 40s. each for non-attendance.
NEW MEMBERS OF PARLIAMENT.
The Honourable Dudley Francis Stewart Ryder, commonly called Viscount Sandon, for Lichfield, in the room of Henry Manners, Baron Waterpark, who has accepted the office of Steward of her Majesty's manor of Northstead, in the county of York.
John Biggs, Esq., for Leicester, in the room of Richard Gardner, Esq., deceased.
The Queen has been graciously pleased to appoint Richard Levinge Swift, Esq., Barrister-at-Law, now her Majesty's Consul at Buffalo, to be her Majesty's Consul at Riga. From the London Gazette, of June 13.
ter-at-Law, will be the New Judge of the County We are informed that J. Worlledge, Esq., BarrisCourts (Circuit No. 33), in the room of Francis King
Eagle, Esq., deceased. Mr. Worlledge was called
to the bar by the honourable society of the Middle Temple, the 23rd of November, 1838, and went to
the Norfolk Circuit.
Morpeth, has been appointed treasurer of the County Mr. William Woodman, solicitor and town clerk of
Courts of Northumberland and Durham.
Charles Saunders, Esq., Recorder of Plymouth and Devonport, has been appointed judge of the county courts (circuit No. 57), in the room of Graham Willmore, Esq., deceased. Mr. Saunders was called to the Bar by the Hon. Society of Lincoln's-inn, on the 17th November, 1829, and went the Western Circuit.
RESULT OF TRINITY TERM EXAMINATION.
At the examination of articled clerks which took place on the 3rd instant, ninety-three out of 114 completed their testimonials, and were entitled to be examined; but three did not attend. The examiners were engaged nearly three days in considering the answers to the questions, and ultimately passed eighty-three and postponed seven.
PARLIAMENTARY PROCEEDINGS RELAT
ING TO THE LAW.
Royal Assents.-June 23.
Public Health (Supplemental).
Drafts on Bankers.
House of Lords.
Joint-Stock Companies. For third reading. June 30. Married Women's Reversionary Interest. For second reading.
Charitable Uses. For second reading.
Police Counties and Boroughs. For third reading, June 27. Marriages in Scotland.-Lord Brougham. For third reading.
Clergy Offences.-Bishop of Exeter. For second reading. Sleeping Statutes. In committee, June 27.
Oath of Abjuration.-Lord Lyndhurst. Negatived. Divorce and Matrimonial Causes. Report of Amendments, July 3.
Oaths of Abjuration Amendment.-Earl of Derby. In committee, June 27.
Grand Juries. In committee, July 1.
Judicial Statistics.-Lord Brougham. For second reading. Bankruptcy (Scotland).-Lord Chancellor.
reading, June 30.
IN SELECT COMMITTEE.
Drainage Act Amendment.
Mercantile Law Amendment.
County Courts Act Amendment.
House of Commons.
Leases and Sales of Settled Estates. For second reading, June 30.
Appellate Jurisdiction. For second reading, June 30. Law of Partnership (No. 2).-Mr. Lowe. In Committee, June 30.
Joint-Stock Companies' Winding-up Acts Amendment. Re-committed, June 26.
County Courts' Amendment. In Committee, June 27. Mercantile Law Amendment. For second reading, June 30. Mercantile Law Amendment (Scotland). In committee, June 30.
Judgments Execution, &c.-Mr. Craufurd. For second reading, July 2.
Amendment of Procedure and Evidence.-Sir F. Kelly. In Committee.
Court of Probate of Wills and Grants of Administration.Solicitor-General. In committee, July 3.
Testamentary and Matrimonial Jurisdiction.-Sir F. Kelly. For second reading.
Ecclesiastical Courts.-Mr. Collier. For second reading. Judge and Chancellors (Ecclesiastical). In committee. Poor Law Amendment.-Mr. Bouverie. For second reading.
Church Rates Abolition.--Sir W. Clay. In Committee, June 27.
Amended Formation of Parishes.-Marquis of Blandford. In Committee.
Advowsons.-Mr. Child. In Committee, June 30. Tithe Commutation. In Committee, July 1. Burial Acts Amendments.-Mr. Massey. reading.
Public Health Amendment. For second reading, June 26. Medical Profession. Re-committted.
Medical Qualification and Registration.-Lord Elcho. For second reading.
Trust Property Criminal Appropriation.-Attorney-Ge
Intestate's Personal Estate.-Mr. Locke King. In committee.
Metropolis Local Management Act Amendment.—Sir B. Hall. For second reading, June 27.
Courts of Common Law (Ireland). Re-committed, June. Corrupt Practices Prevention.-Lord Palmerston. For second reading, June 26.
IN SELECT COMMITTEE.
Shipping Tolls, &c. Public Prosecutors.
County and Borough Police.
Qualification of Justices of the Peace. Simple and Special Contract Debts. London Corporation.
THE ATTORNEYS' AND SOLICITORS' ACT, (6 & 7 Vict. c. 73). With an Introduction, Analysis of the Act, and copious Notes, showing the effect of the alterations. 3s. 6d. By ROBERT MAUGHAM, Secretary to the Incorporated Law Society.
Thomas F. A. Day, 13, Carey-street, Lincoln's-inn.
HE GRANDEUR of the LAW; or, the
With Sketches of their Professional career, containing :— 1. Peers who, or whose Ancestors have filled the Judicial Seat; Dukes; Marquesses; Earls; Viscounts; Barons.
2. Legal Peers owing their origin to the Profession of the Law. Price 6s. By EDWARD Foss, Esq.,
YOPYHOLD and COURT - KEEPING With nearly Two Hundred Precedents, and the Act for the Amendment of the Law with respect to Wills; intended not only for use in the office of the more experienced practitioner, but simplified in such a manner as to enable a town or country Solicitor, previously unacquainted with Copyhold or Court-keeping practice, to transact with ease all the general business in admissions, purchases, and sales, mortgages, annuities, leases, deeds, for benefit of creditors, bankruptcy and insolvency, wills, partitions, and enfranchisements, court-keeping, adjustment of fines, fees, &c. &c. Price 10s. By ROLLA ROUSE, Esq., Barrister-at-Law. Thomas F. A. Day, 13, Carey-street, Lincoln's-inn.
A MANUAL of ELECTION AGENTS.
CANDIDATES, and OTHERS, in the formation of Registration and Election Committees, the arrangement of the duties of each member, the preparing for cases at revision, and the canvass and poll at elections. Price 4s. By ROLLA ROUSE, of the Middle Temple, Esq., Barrister-at-Law.
Thomas F. A. Day, 13, Carey-street, Lincoln's-inn.
LAW GOWNS, 30s. and 428., may be
obtained of Frank Smith & Co., Clerical, Academical, State, and Law Robe Makers, 13, Southampton-street, Strand, London. List of Prices and directions for measurement, &c., sent on application.
The Legal Observer,
AMENDED COURTS BILL. JURISDICTION.
SATURDAY, JULY 5, 1856.
ECCLESIASTICAL | the Registrars, Deputy Registrars and Proc
THE Solicitor-General's amended bill may now be considered as including within its clauses the several Bills of Sir Fitzroy Kelly and Mr. Collier, and we have before us the consolidated print as amended in committee and re-committed for further consideration. We shall proceed to notice briefly the principal parts of the measure as now under consideration, and the alterations which have been adopted since the bill was last before our readers.
There is to be a distinct "Court of Probate and Administration," as well of real as personal estate, with power to grant certificates of intestacy, and to decide on the construction of wills, to declare the rights of the parties, and administer the assets of deceased persons (s. 6).
The judge must have been an advocate of ten years' or a barrister of fifteen years' standing. The judges of the common law courts, the Master of the Rolls, and the Vice Chancellors may sit with or in the absence of the judge (ss. 6, 12).
Then a 66 Testamentary Office is to be established in such place as her Majesty in council may appoint (we presume) in the metropolis; and also District Testamentary Offices in each of the circuits of the county court judges (ss. 22, 3).
The Officers of Court (with power to increase the number) are to be—
In the Testamentary Office :
Ten Official Proctors;
So many principal Clerks, Assistant
In the District Office:
So many Clerks as may be necessary
The Accountant-General and Taxing Masters of the Court of Chancery are to act as such in the New Court (s. 67).
As to the Practitioners, it is provided that
tors in the present ecclesiastical courts may,
the Probate Court; and the commissioners for
Proctors, solicitors, or attorneys appointed to any office under the act are not to practice (s. 124).
The registrars are to have power to admiappoint commissioners for that purpose nister oaths (s. 125); and the judge may (s. 126).
The Mode of Proceeding to obtain probate purpose of including applications to the disor administration has been altered, for the trict registrar.
Testamentary Office, or with a district regisThe will, and a copy, are to be left at the trar, as the case may be, with such affidavits as are requisite, according to the forms given in the schedules to the act.
registrar any question arising in the transacIn the case of an application to a district ferred to the principal registrar for the tion of common form business, may be redirections of the judge (s. 42).
But no probate or administration is to be granted through a district office, unless the deceased had a fixed place of abode in the district and the personal estate does not exceed £1,500 (s. 43). And it is not obligatory to apply to a district office (s. 45).
A note of the probate and a copy of the will or of the administration is to be sent by the district registrar to the principal registrar (s. 46).
Probate and other official copies of wills or diections of the principal registrar, and printed administrations are to be printed under the copies sent to the Metropolitan Register Office of births and deaths; the Prerogative Office in Dublin; the Commissary in Edinburgh; the clerk of the county court in the district, where the deceased died, &c. (ss. 47, 48.)