228 Superior Courts: Rolls.-Vice-Chancellor.—Queen's Bench. plied to the Vice-Chancellor to discharge the the 11th of March last, but notice of such filing order of course. They might possibly have contested the Master's order to bring in the accounts; but that not having been done, and the certificate of the Master having been regularly obtained, the four day order followed of course. An order of course can only be discharged on the ground of irregularity in obtaining it, for, as the term implies, a party who has a right to apply for it is entitled to have it granted. This motion must therefore be allowed. Rolls Court. Rodich v. Gandell. May 22, 1847. PRODUCTION OF PAPERS. -SOLICITORS' LIEN. It is no answer to a motion for the production of documents, to show that the party is a bankrupt, and that the documents are in the possession of his solicitor, who claims a lien upon them for costs. THIS was a motion for the production of documents. Mr. Turner and Mr. Roundell Palmer, for the motion, stated, that it was opposed upon the ground that the solicitor of the party against whom the motion was made, had a lien upon the papers for his costs, and that therefore the party was unable to produce them. They cited Furlong v. Howard, 2 Sch. & Lef. 115; Taylor v. Rundall, Cr. & Phill. 104; and Brassington v. Brassington, 1 Sim. & Stu. 101, to show that the court would not allow the solicitor's right to obstruct the course of justice, but it would give time, if necessary, to enable a party to produce the documents required. Mr. Glasse, in opposition to the motion, referred to a dictum of Lord Eldon in exparte Shaw, Jac. 270, to show that a party could not compel his solicitor to give up documents on which he had a lien, without paying his bill. But in this case the party had become bankrupt since the debt to the solicitor was incurred; and how could he be compelled to discharge the solicitor's lien. Lord Langdale expressed his opinion, that the party was bound to produce the documents. If a difficulty arose in the way of their production, the court would give him time to take such steps as were necessary for that purpose. He would make the order subject to such application as the party might make in case he was unable to obtain possession of the docu ments. had not been served until the 15th April. The 23rd Order of October, 1842, directs that notice of replication shall be given the same day on which it is filed. Mr. Bethell and Mr. Rogers now moyed that the replication be taken off the file for irregularity, or that the service of the notice of replication be set aside for irregularity. They contended that the words of the order were clear and precise, and that, as all subsequent steps in the cause dated from the day on which the replication was filed, it would be unjust, by keeping the defendant in ignorance of the filing of the replication, to deprive him of the time he was entitled to, and compel him to go to the Master to enlarge publication. That in the case of Lord Suffield v. Bond, Leg. Obs., Dec. 19, 1846, the Master of the Rolls had granted an application of a similar description, and had ordered a certificate of the insufficiency of an answer to be taken off the file for irregularity. They also cited Johnson v. Barnes, 11 Jur. 261. Mr. J. Parker and Mr. Glasse, contrà, urged that the application was premature, and that at present there was nothing irregular in any of the proceedings. In the case of Lord Suffield v. Bond, subsequent steps had been taken in the cause after the certificate had been filed; it therefore differed from the present case, where nothing had been done by the plaintiff subsequent to filing the replication, and the defendant had not been hindered in any way. The Vice-Chancellor said, he did not recollect that this question had ever arisen before: it appeared to him a very reasonable application. It was not denied that the defendant, through the conduct of the plaintiff in not giving him notice pursuant to the 23rd Order of October, 1842, might be obliged by the course of the court to take a proceeding which would not otherwise have been forced upon him. He did not think that the plaintiff had a right to put the defendant in such a position, and he should therefore direct the replication to be taken off the file, and that the plaintiff should pay the costs, (Before the Four Judges.), The Queen v. Gifford. Easter Term, 1847. MANDAMUS. PRACTICE. A parish clerk was dismissed from his office on a charge of misconduct by the incumbent in Nov. 1841, who died in the year 1844. The clerk made written applications to the incumbent in the years 1843 and 1845, but could obtain no answer. A rule nisi for a mandamus to the incumbent to restore him to the office was obtained in January last, and it was stated on the affidavits that the poverty of the applicant was the reason why an earlier application had not been made. Held, that, under the facts of this case, the application for a mandamus was not made to the court in proper time. Superior Courts: Queen's Bench. A RULE nisi had been obtained calling upon Mr. Gifford, the incumbent of Shalford, to show cause why he should not restore G. Sturt to the office of parish clerk. Sir F. Thesiger (with whom was Mr. Beetham) showed cause, and contended that the application was too late. Sturt had been removed from the office of parish clerk on a charge of embezzlement, in November, 1841, by Mr. Onslow, who was then incumbent of the parish, and who died in 1844. Since that time there have been three incumbents, and no application is made for a mandamus till January, 1847. (He was stopped.) 229 ing cause against a rule for a mandamus, unless the order had been first brought into this court by certiorari. A RULE nisi had been obtained, calling upon the overseers of the townships in the Oldham union to show cause why a writ of mandamus should not issue commanding them to assemble and appoint a barrister to act as returning officer at a certain election of guardians for that union in pursuance of the directions of an order of the Poor Law Commissioners. Mr. J. Cobbett showed cause, and contended that the order of the Poor Law Commissioners, which was now sought to be enforced, was inMr. Self in support of the rule.. It appears valid. [Lord Denman, C. J. Can you raise an from the affidavits that Sturt by being deprived objection to the validity of the order without of the office of parish clerk was reduced to great having first brought up the order by writ of poverty. That in the year 1843, and on two certiorari?] The 4 & 5 W. 4, c. 76, s. 105, Occasions in 1845, applications in writing had does not say that orders of the Poor Law Combeen made by him and his friends to Mr. missioners can only be questioned when brought Onslow and the incumbent who succeeded him, but they could not obtain any answer to their up by certiorari. applications, and until there had been a refusal the applicant was not in a situation to come to this court for a mandamus. [Mr. Justice Wightman. The rule is, that the application must be made promptly, otherwise the court will not listen to it.] The delay has arisen from the poverty of Sturt, and the application has been made as early as possible under the circumstances of the case. Mr. Justice Patteson. There is no precise rule of court as to the time within which an application of this kind may be made, but the facts and circumstances of each case must guide the court in the exercise of its discretion. I do not think we ought to grant a rule for a mandamus under these circumstances. I do not say that poverty would not be a sufficient excuse under any state of facts, but in this case I! can imagine it might have been most material that the application should have been made during the life of Mr. Onslow. Justices Wightman and Erle, concurred. The Queen v. The Overseers of the Oldham ORDER OF POOR LAW COMMISSIONERS.-- The Poor Law Commissioners made an order sioners had power to make the order, the • Lord Denman, C. J., had left the court. Mr. Tomlinson contrà. These orders, by the 42nd section, have the same effect as if they were embodied in the act, and then the 105th section provides the remedy by certiorari. There is therefore no other mode of impeaching the validity of this order. Lord Denman, C. J. I entertain a clear opinion that the Poor Law Commissioners have full power to make any order with respect to an order made by them relating to such matters the regulation of the relief of the poor, and that shall become equal to a legislative enactment, and shall be so considered until it shall have been brought up by certiorari and quashed. If, however, it can be shown that the order was not made in a matter relating to the administration of the Poor Laws, and consequently that the Poor Law Commissioners had no jurisdic tion on the subject, then the order must fall of itself. Mr. J. Cobbett then contended, that a returning officer for several parishes or townships was not an officer named in the 4 & 5 W. 4, c. 76. The effect of a contrary decision would be to make overseers union officers, and to cause them to depart from those duties which the law calls upon them to discharge. Lord Denman. It appears to me that the appointment of a returning officer is one of those things which must be done for the general execution of the powers given by the act. Patteson, J. I think the 40th and 46th sections, taken together, clearly show that the Poor Law Commissioners have power to require a into effect the general purposes of the act. returning officer to be appointed for carrying Coleridge, J., concurred. Erle, J. I am of opinion that the commissioners have power to make an order like the present, and if it is within their jurisdiction, then the validity of it cannot be disputed, unless first brought up by certiorari. Rule absolute. 230 Superior Courts: Queen's Bench Practice Court.-Common Pleas. Queen's Bench Practice Court. (Before Mr. Justice Wightman.) Bowditch v. Toulmin. Easter Term, May 29, 1847. In a writ of summons the description of the defendant's residence was, " of Clapham, in the county of Surrey.' Held, on a motion to set aside the writ and service thereof, that this description was sufficient, there being no evidence before the court of the description of place Clapham was. Hoggins moved for a rule calling on the plaintiff to show cause why the writ of summons, copy, and service thereof in this action should not be set aside, on the ground that the description of the residence of the defendant was bad as being too general. The description was, "To Edward Toulmin, of Clapham, in the county of Surrey." This it was submitted was not a sufficient description within 2 W. 4, c. 39, s. 1, which requires "the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be or shall be supposed to be, shall be mentioned." Wightman, J. I really don't see why Clapham" is not sufficient; you have both the place and the county of the defendant's residence. . Hoggins. But Clapham is a large place, consisting of many streets. Wightman, J. Have you stated that fact in your affidavit, for if not, I cannot take judicial notice of the size of Clapham; it may be but one house of that name for all I know. Hoggins. It is not distinctly stated, but the defendant describes himself as of South Island Place, Clapham Road, which goes to show that the description Clapham is too general. 66 Wightman, J. I don't think that it is, and, in the absence of any statement in the affidavit, as to the size of Clapham, think it sufficient. In the case of Cooper v. Wheal, 4 Dowl., the defendant was described as of "Tufton Street, in the county of Middlesex," and Mr. Justice Littledale held that description sufficient, saying, that "it was not necessary to describe the particular town or village in the county within which the particular street may be situated;" now it strikes me that the present description is not more general than "Tufton Street," for Tufton Street may have been a mile long. Common Pleas. the published prospectus stated that until an act of parliament should be obtained the committee of management was to have the control of the company's affairs, and to apply the funds, &c. Held, that no authority, either express or implied, was given to the managing committee to contract on the credit of the provisional committee. Semble, that any authority given by the terms of a prospectus is not to be considered as derived solely from the provisional committee. THIS was an action to recover a claim made for advertisements relative to the "Oxford, Witney, Cheltenham, and Gloucester Independent Extension Railway." At the trial before Coltman, J., at the last summer assizes at Guildford, it appeared that in the prospectus the defendant's name was published among those composing the provisional committee; that the prospectus also contained the names of a managing committee of which the defendant was not one, and then set forth several paragraphs, amongst which were the two following The first stated-"The provisional committee of management now inform the parties to this undertaking that the preliminary surveys have been completed." The second, that "until the act of parliament should be obtained, the affairs of the company shall be under the control of the committee of management for the time being, to whom power is given to allot the shares, and to apply the funds of the company for all the expenses incurred in the formation of the company, and in the preparation of the plans and sections to be submitted to parliament.” Some evidence was given to show that the defendant knew of the contents of the prospectus, and that the orders under which the plaintiff acted had emanated from the managing committee. The jury found a verdict for the defendant, and a rule nisi having been obtained for a new trial on the ground of the verdict being against the evidence, M. Chambers now showed cause. The only argument on the other side in support of the rule is, that the two paragraphs in the prospectus show that the defendant, as one of the provisional committee, gave authority to the managing committee to pledge his credit; but it is submitted that the paragraphs show quite the contrary. The present is like the cases decided with reference to club-houses, and which are referred to and relied upon in Wylde v. Hopkins. The evidence failed to make out in any way the liability of the defendant, and the case, if sent down again for trial, must end Dawson and others v. Morrison. Trinity Term, in a nonsuit or a similar verdict. 1847. Shee, Serjeant, in support of the rule. The plaintiff had to make out that the defendant RAILWAY PROVISIONAL COMMITTEE.-CON- contracted with him; and assuming that the STRUCTION OF PROSPECTUS,—AUTHORITY OF MANAGING COMMITTEE. Where, in addition to the circumstance of the defendant's being a member of a railway provisional committee, it was proved that defendant knew of the prospectus, it is submitted, on the authority of Wylde v. Hopkins, and the paragraphs in the prospectus, that the * 10 Jur. 972, 1097. Superior Courts: Common Pleas.-Exchequer. 231 the defendant was appointed to the office of Somerset Herald by the Lord Chamberlain, at a salary, and that he received other perquisites; that his duties consisted in attending the Queen whenever and wherever required; that it was part of his duties to attend on royal marriages, or on the arrival of an ambassador, or upon the opening or prorogation of parliament. It also appeared that petitions had been presented to the Earl Marshal and the Lord Chamberlain. for liberty to arrest the defendant, but those officers conceived that they had no authority. orders by the managing committee were by the authority of the defendant as one of the provisional committee. In the second paragraph more particularly the provisional committee are evidently speaking, and the terms extend to the authorising the advertisements to be ordered on their credit; the jury, therefore, were not warranted by the evidence in the verdict they found, and the rule ought to be made absolute. Wilde, C. J. I entertain no doubt as to the present rule. So far from the jury having done wrong by the conclusion at which they have arrived, it is difficult to say how they could have found differently. It may be assumed Bramwell showed cause. This very case has that the defendant was a member of the pro- been decided by the Court of Exchequer, and visional committee, and the question is, what they refused to interfere on motion, but left the more has been shown? I cannot certainly defendant to sue out his writ of privilege. Leslie adopt the paragraphs in the prospectus as v. Disney, 3 Dow. P. C. 437. He also cited speaking only the language of the provisional Luntley v. Buttine, 2 B. & Ald. 234. Byrn v. committee. It seems to have been published Dibdin, 3 Dow. P. C. 448; Com. dig, tit. priby the managing committee, the provisional vilege, (A 3); Holiday v. Pitt, Cas. Tem. committee concurring only so far as as their Hardw. 28; Winter v. Miles, 10 East, 578. not objecting goes. The effect of the paragraphs is, that the whole management of the concern was to be under the control of the committee of management. Then from whom is that authority derived? Not, as has been assumed, entirely from the provisional committee, but from, as I think, the same source as the existence of the provisional committee themselves, namely, the subscribers generally. Be that however as it may, it appears to me that the terms of the paragraphs negative any authority to the managing committee to contract on behalf of the provisional committee, and that they rather give notice that the former are not to deal on the credit of the latter; nor is there to be found in the prospectus any part giving the slightest authority to the managing committee to contract on any credit but their own. The only effect of the evidence is to establish that the defendant was a member of the provisional committee, but by that character there was no implied authority to contract upon his credit given, and so far as the express authority goes, it plainly means that the managing committee are to have the disposition of the funds on the terms of ready money dealings, rather than upon those of credit. I think therefore the verdict ought to stand./ 7 Rule discharged. Hoggins in support of the rule. In consequence of the decision of this court in Leslie v. Disney, the defendant prepared a writ of privilege, but the officer would not sign it because there was no precedent of such writ to be found in the books. Search had been made in the Petty Bag Office, the Record Office, the Signer of Writs' Office, and other offices of the Court of Chancery, but without success. He then argued that it clearly appeared from the affidavits that the defendant was a servant in ordinary of the Queen, with fee, and therefore entitled to his privilege. He cited King v. Foster, 2 Taunt. 167; Foster v. Hopkins, 2 Chit. Rep. 46; Bartlett v. Hebbes; 5 T. R. 686. Cur, adv. vult. Alderson, B. The question is, whether the defendant has made out to my satisfaction that he is a servant in ordinary with fee. When this case was formerly before the court (Leslie v. Disney) they doubted whether that sufficiently appeared, and on that ground the court discharged the rule and directed the defendant to sue out his writ of privilege. On the present occasion it is clearly made out by affidavit that the defendant is a servant in ordinary with fee. It is made out that he is in continuous attendance upon her Majesty, inasmuch as his services may be required at any time, and as those times are uncertain, it would be improper to prevent him, by arrest, from dis charging those duties, and the Crown from hav ing its due and ordinary state. In the case of a chaplain, he is not required to be continually be called upon at any time to do duty, and preaching before the Queen, but he is liable to therefore he has a continuous service, although performed at reasonable intervals. So with respect to the lighter of fires and candles to the yeomen of the guards, although in the summer they might not require fires, and would need THIS was a rule calling on the plaintiff to less candles, still, inasmuch as the times at show cause why the defendant should not be which they would be required are uncertain, he discharged out of the custody of the sheriff of is privileged, Foster v. Hopkins, 2 Chit. Rep. Middlesex, on the ground that he was "Somerset 46. It is the same with respect to a page of Herald." It appeared from the affidavits that the second class, or a lord of the bed-chamber. Exchequer. (Before Alderson, B., sitting alone.) Dyer v. Disney. Easter Term, 8th May, 1847. QUEEN'S SERVANT.—ÅRREST.-PRIVILEGE. The "Somerset Herald" is a servant in ordinary of the Queen, with fee, and therefore privileged from arrest. 232 Superior Courts: Exchequer.-Professional Lists.-Par. Proceedings.-Letter Box. I therefore think, that the Somerset Herald is دو Rule absolute. But Vogel and another, executors of Ann Vogel, v. EXECUTORS.-SCIRE FACIAS. JUDGMENT. Where executors move for judgment on the sheriff's return of " nil" to a writ of scire facias, the affidavit in support of the application must state that probate has been taken out. In this case the plaintiffs, as executors of Ann Vogel, issued a writ of scire facias to revive a judgment recovered by their testator. The sheriff having returned "nil," Miller moved for judgment upon an affidavit stating, that on the 3rd January the judgment was recovered by the testatrix, and that the plaintiffs were executors; but the affidavit did not state that probate had been taken out. Pollock, C. B. The affidavit is insufficient. Before we grant this application we ought to be satisfied that the plaintiffs have obtained probate of the will. Alderson, B. The affidavit might have been sufficient if this were a proceeding in which the plaintiffs could get probate at any time during the course of it; but here the plaintiffs ask for judgment; they ought therefore to show that they have obtained probate. The affidavit must be amended. DISSOLUTIONS OF PROFESSIONAL PART- From May 25th to June 18th, 1847, both inclusive, Charles Goodden. June 1. MASTERS EXTRAORDINARY IN CHAN- From May 25th to June 18th, 1847, both inclusive, June 8. Ashton, William Henry, Stockport. June 4. Plummer, Stephen, jun., Canterbury. May 25. Abolition of Mastership in Chancery. For 2nd reading. Abolition of Public Office in Chancery. For 3rd reading. THE EDITOR'S LETTER BOX. A CORRESPONDENT inquires whether a person can be restrained from making a patent patent all persons are prohibited from "either article merely for his own use? In the letters directly or indirectly making, using, or putting Ffooks, William, Henry Charles Goodden, and in practice the invention." In Mr. Hindmarch's Thomas Ffooks, Sherborne, Attorneys and elaborate work on the Law of Patents it is said Solicitors, so far as regards the said Henry that " the subject of the grant thus made by the extends to the using and exercising of the inpatent is a sole and exclusive privilege which vention or art invented by the patentee; to the making of articles by means of the invention or the exercise of it; and to the vending of such articles to the public."-Page 53. "If any person, except the patentee, make articles according to the patentee's invention, he commits an infringement of the patent. Gibson, John Robinson, and John Alexander Spald- Slade, John, and William Denson Jones, Devizes, 11. Wartnaby, Henry, Richard Austwick Westbrook, A trustee under a will of personal property, is directed to lay it out on government, or real, or good personal security. He has lent the trust-money to B., (who has become a bankrupt,) on his bond or note of hand. Can the cestui que trust call upon the trustee to make good the trust-fund out of his own pocket? "An Articled Clerk's" letter shall be attended to. |