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Superior Courts : Common Pleas.-Exchequer.
231 orders by the managing committee were by the , the defendant was appointed to the office of authority of the defendant as one of the pro- Somerset Herald by the Lord Chamberlain, at visional committee. In the second paragraph a salary, and that he received other perquisites; more particularly the provisional committee are that his duties consisted in attending the Queen evidently speaking, and the terms extend to the whenever and wherever required ; that it was authorising the advertisements to be ordered on part of his duties to attend on royal marriages, their credit; the jury, therefore, were not war- or on the arrival of an ambassador, or upon ranted by the evidence in the verdict they the opening or prorogation of parliament. It found, and the rule ought to be made absolute. also appeared that petitions had been presented
Wilde, C. J. I entertain no doubt as to the to the Earl Marshal and the Lord Chamberpresent rule. So far from the jury having done lain, for liberty to arrest the defendant, but wrong by the conclusion at which they have those officers conceived that they had no arrived, it is difficult to say how they could authority. 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 para. Hoggins in support of the rule. In consegraphs is, that the whole management of the quence of the decision of this court in Leslie v. concern was to be under the control of the Disney, the defendant prepared a writ of privi. committee of management. Then from whom lege, but the officer would not sign it because is that authority derived ? Not, as has been there was no precedent of such writ to be found assumed, entirely from the provisional com- in the books.' Search had been made in the mittee, but from, as I think, the same source Petty Bag Office, the Record Office, the Signer as the existence of the provisional committee of Writs Office, and other offices of the Court themselves, namely, the subscribers generally. of Chancery, but without success. He then Be that however as it may, it appears to me argued that it clearly appeared from the affidathat the terms of the paragraphs negative any vits that the defendant was a servant in ordiauthority to the managing committee to con- nary of the Queen, with fee, and therefore entract on behalf of the provisional committee, titled to his privilege. He cited King v. Foster, and that they rather give notice that the former 2 Taunt. 167; Foster v. Hopkins, 2 Chit. Rep. are not to deal on the credit of the latter; nor 46 ; Bartlett v. Hebbes ; 5 T. R. 686. is there to be found in the prospectus any part
Cur. adv. vult. giving the slightest authority to the managing Alderson, B. The question is, whether the committee to contract on any credit but their defendant has made out to my satisfaction that own. The only effect of the evidence is to he is a servant in ordinary with fee. When this establish that the defendant was a member of case was formerly before the court. (Leslie v. the provisional committee, but by that character Disney) they doubted whether that sufficiently there was no implied authority to contract upon appeared, and on that ground the court dishis credit given, and so far as the express charged the rule and directed the defendant to authority goes, it plainly means that the sue out his writ of privilege. On the present managing committee are to have the dispo- occasion it is clearly made out by affidavit that sition of the funds on the terms of ready the defendant is a servant in ordinary with money dealings, rather than upon those of fee. It is made out that he is in continuous credit. . I think therefore the verdict ought to attendance upon her Majesty, inasmuch as his stand.
services may be required at any time, and Rule discharged. as those times are uncertain, it would be
improper to prevent liim, by arrest, from dis,
charging those duties, and the Crown from havErchequer.
ing its due and ordinary state. In the case of a (Before Alderson, B., sitting alone.) chaplain, he is not required to be continually Dyer v. Disney. Easter Term, sth May, 1847. preaching before the Queen, but he is liable to
be called upon at any time to do duty, and QUEEN'S SERVANT.-ARREST.-PRIVILEGE. therefore he has a continuous service, although The “ Somerset Herald” is a servant in ordi- performed at reasonable intervals. So with renary of the Queen, with fee, and therefore spect to the lighter of fires and candles to the
yeomen of the guards, although in the summer privileged from arrest.
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.
232 Superior Courts : Exchequer.- Professional Lists.- Par. Proceedings.-Letter Box. I therefore think, that the Somerset Herald is | MASTERS EXTRAORDINARY IN CHAN. in the continuous service of the Crown, and it
CERY. is inconsistent with the privileges of the Crown From May 25th to June 18th, 1847, both inclusive, that he should be arrested. It is not necessary
with dates when gazetted. for me to say what is the proper course in a
Ashton, William Henry, Stockport. June 4. case like this. In 2 Keeble, 3, it is said that Browne, Eyles Irwin Caulfield, Kidderminster,
June 8. the Lord Chamberlain "must either remove Charsloy, Frederick, Amersham. June 15. such or make them pay their debts, the privi- Clarke, Édwin, Longton. June 18. lege being the king's, not the parties.”. But Fenwick, John Clerevaulx, Newcastle-upon-Tyne. with that I have nothing to do.
Plummer, Stephen, jun., Canterbury. May 25.
Selby, Francis Thomas, Spalding. May 25.
LATING TO THE LAW.
EXECUTORS. -SCIRE FACIAS.- JUDGMENT.
NEW BILLS IN PROGRESS.
NEW BILLS IN PROGRESS.
Where executors move for judgment on the
House of Lords. sheriff's return of“ nil” to a writ of scire facias, the afidavit in support of the appli- London City Small Debts. Passed. cation must state that probate has been Juvenile Offenders. For 3rd reading. taken out.
Highway Rates. For 2nd reading. In this case the plaintiffs, as executors of
Clergy Offences. In Committee. Ann Vogel, issued a writ of scire facias to revive a judgment recovered by their testator.
House of Commons. The sheriff having returned “nil,”
Miller moved for judgment upon an affidavit Encumbered Estates (Ireland). Re-comstating, that on the 3rd January the judgment mitted. was recovered by the testatrix, and that the Registration of Voters. Re-committed. plaintiffs were executors; but the affidavit did Parliamentary Electors. For 2nd reading. not state that probate had been taken out. Vexatious Actions. In Committee.
Pollock, C. B. The affidavit is insufficient. Insolvent Debtors. For 2nd reading. Before we grant this application we ought to Joint Stock Companies. In Committee. be satisfied that the plaintiffs have obtained House of Commons Taxation of Costs. For probate of the will.
further consideration of report. Alderson, B. The affidavit might have been Poor Laws Administration. For 3rd read. sufficient if this were a proceeding in which ing. the plaintiffs could get probate at any time Abolition of Mastership in Chancery. For during the course of it; but here the plaintiffs and reading. ask for judgment; they ought therefore to show Abolition of Public Office in Chancery. that they have obtained probate. The affidavit For 3rd reading. must be amended.
THE EDITOR'S LETTER BOX. DISSOLUTIONS OF PROFESSIONAL PART. A CORRESPONDENT inquires whether a perNERSHIPS.
son can be restrained from making a patent
article inerely for his own use? In the letters From May 25th to June 18th, 1847, both inclusive, patent all persons are prohibited from “either with dates when gazetted,
directly or indirectly making, using, or putting Ffooks, William, Henry Charles Goodden, and in practice the invention.” In Mr. Hindmarch's
Thomas Ffooks, Sherborne, At:orneys and elaborate work on the Law of Patents it is said
Charles Goodden. June 1.
patent is a sole and exclusive privilege which ing, 9, Copthall Court, Attorneys, Solicitors, vention or art invented by the patentee; to the
and Conveyancers. June 11, Neild, Henry Isaac, and Frederick George Uuwin, the exercise of it; and to the vending of such
making of articles by means of the invention or 40, Ely Place, Attorneys-at-Law. June 1.
articles to the public.”—Page 53." If any Pool, Joseph Edmund, and Frederick Horatio Boul. person, except the patentee, make articles ac
ton, 1, Walbrook Buildings, City, Attorneys and cording to the patentee's invention, he commits Solicitors. June 15.
an infringement of the patent. Slade, John, and William Denson Jones, Devizes, A trustee under a will of personal property, Áttorneys, Solicitors, and Conveyancers. June is directed to lay it out on governmeni, or real
or good personal security. He has lent the Wartnaby, Henry, Richard Austwick Westbrook, trust-money to B., (who has become a bank
and George Gisby, Ware, Attorneys-at-Law, rupt,) on his bond or note of hand. Can the so far as concerns the said Henry Wartnaby. cestui que trust call upon the trustee to make May 28.
good the trust-fund out of his own pocket? Willesford, Charles, and John Tucker, Tavistock,
“An Articled Clerk's” letter shall be at. Attorneys and Solicitors. June 11.
The Legal Observer,
DIGEST, AND JOURNAL OF
SATURDAY, JULY 10, 1847.
" Quod magis ad nos
BUSINESS OF THE COMMON LAW may be more readily understood than exCOURTS.
plained. The suitor is more damnified, and feels more dissatisfied, by a speedy de
cision given under such circumstances than CONTEMPORANEOUS SITTINGS
by delay; and the administration of justice AND NISI PRIUS.-SEPARATE BARS.
itself is prejudiced by having points of A CIRCUMSTANCE occurred at the banco “great pith and moment" determined after sitting of the Court of Exchequer, one day a partial investigation and imperfect arguduring the past week, which has had the ment, or it may be, in the absence of effect of directing public attention to the counsel, and without any argument. These present state of the business in the courts evils were so strongly felt by the leading of common law. In all three of the courts members of the bar, that a public and there is a considerable arrear, and with the formal representation was made to the praiseworthy design of reducing the num- Barons of the Court of Exchequer on the ber of causes remaining for hearing at the subject, who, it is only doing them justice termination of Trinity Term, the judges of to state, met the matter with the greatest the Courts of Queen's Bench and Ex- candour and fairness. It was admitted, chequer, under the authority of the statute that the contemporaneous sittings of the 1 & 2 Vict. c. 32, appointed certain days same court at Westminster and Guildhall for sitting in banco at Westminster, con- was most inconvenient and detrimental to temporaneously with which these courts the public interests, and that a general unwere sitting at nisi prius, at Guildhall, for derstanding prevailed in the profession, the trial of issues, the venue in which was when the statute authorising sittings after laid in London. This arrangement has Term in Banco was in progress through proved most inconvenient to the profession, parliament, that those additional sittings and, in many instances, disastrous to the were not to interfere with the nisi prius suitor. Unless the leading counsel gene- sittings in London after Term. As far as rally declined accepting briefs at the we can understand, it is not proposed that London sittings, the courts sitting in the Court of Exchequer should again apBanco could not be punctually attended, point sittings in Banco, whilst the court is and points reserved at nisi prius, in order held at Guildhall for the trial of nisi prius that an opportunity might be afforded for causes. Of course, the inconvenience deliberate argument, must, in all proba- complained of, will continue to exist, unless bility, be disposed of in the absence of the the Courts of Queen's Bench and Common counsel who had previously conducted the Pleas adopt the same rule as the Court of case, and upon whose exertions the client Exchequer, and refrain from appointing mainly relied for bringing the merits fairly those simultaneous sittings. Should a and fully before the court.
uniform practice in this respect be adopted The mischief and injustice occasioned by all the courts, as it is clearly desirable by the existence of such a state of things there should be, the question remains, how
VOL. XXXIV, No. 1,009.
Business of the Common Law Courts.-Law of Landlord and Tenant. is the arrear of business at present existing quainted with the business of the courts. to be got rid of, or prevented from increas- The obvious remedy for this evil is, that ing? The additional sittings in Banco the leading counsel should select particular were considered vecessary, because the courts and practise exclusively in those Terms were found ipsufficient for the dis- courts. This course has been voluntarily posal of the business brought before the adopted by many eminent advocates with courts during Term. Should the duration equal advantage to themselves and satisof the Terms be protracted, or should an faction to their clients. The present Chief additional court be established with con- Justice of the Common Pleas, (Sir Thomas current jurisdiction, to lighten the pressure Wilde,) and Mr. Baron Platt, for many which begins to be so severely felt by the years confined their practice, the one to judges of the existing courts?
the court over which lie now so worthily This is a matter requiring serious and presides, and the other to the Court of anxious consideration from those on whom Queen's Bench. The three courts, we bethe responsibility devolves of providing for lieve, furnish instances in which gentlemen the due administration of justice. To of acknowledged capacity and extensive lengthen the duration of the Terms, it' practice have attached themselves to a parwould become indispensably necessary to ticular court. The certainty of having a alter the periods appointed for holding the counsel always at his post when the cause circuits, and to adopt fresh arrangements in which he is retained is called on, is an in nearly every branch of the administra- advantage too obvious not to be readily ap: tion of justice in which the common law preciated. Those who have adopted a rejudges are engaged. Whether a change solution so satisfactory to their clients, and of arrangements could be devised which so consonant with that which the public at would not produce greater inconveniences large consider to be the correct course, will than those it is proposed to remove, is, at be sure to find their reward. We trust the best, extremely doubtful. The ex- their example will be speedily followed by pense of establishing and maintaining a all who have arrived at the position to ac. new court of co-ordinate jurisdiction with cept leading business at the bar. It is unthe three courts of common law, is the ob- necessary, and would be injurious, to imjection, we doubt not, with which any such pose such a restriction upon juniors. As proposition would be met at the outset, al- already hinted, however, if the principle of though it is the objection, perhaps, of all selecting a particular court was adopted others, entitled to the least weight. The i by the bar to the fullest extent, it would be inhabitants of a country so biglily taxed as ineffectual if the same court held its site this is, have indeed reason to complain of tings at different places contemporaneously. the manner in which their affairs are | Such a system unreasonably requires the managed, if sufficient cannot be spared to discharge of duties from their nature irredefray the comparatively trivial expenses 'concilable, and, desirous to see all the reguincidental to the efficient administration of lations of our courts approved of and rejustice. Be that as it may, no practicable spected, we trust it may not be persevered arrangement could be suggested to prevent in. the inconvenience and prejudice to suitors which must arise from having distinct and LAW OF LANDLORD AND independent sittings of the same court in
TENANT. different and distant localities. We confidently hope, therefore, to see a plan open INSUFFICENT NOTICE TO QUIT. to so much and such well-founded objection
The latest published number of reports abandoned at once and for ever, whatever of the Court of Queen's Bench containstwo may be substituted.
cases upon the sufficiency of notices to The difficulty of securing the attendance quit, to be added to the multitude of cases of leading counsel, even when all the already determined and ranging under the courts are sitting in Westminster Hall
, is same head. Upon a hasty review of this notorious. The anxiety, disappointment, class of cases, it may be conceived the rule and not unfrequently, the positive injustice requiring half-a-year's notice to quit was to which clients and their responsible ad
so inconvenient that it ought never to have A Bisers are subjected in consequence of the been established; but upon a closer examiunexpecicabsence of a counsel at the nation of those cases, it will be found that
monient when his services are needed, can
Law of Landlord and Tenant.
235 the difficulty and uncertainty have been at the end of a year's tenancy. The court produced mainly by a departure from the was clearly of opinion that the notice was plain rule, and by the adoption of subtle insufficient : it could not be good for May, distinctions suggested with the design of and the current year expired in November, preventing the law from operating harshly a few days after the date of the notice. If in particular instances.
there was an absolute inconsistency, the Amongst the cases to which this obser- court might perhaps reject part, bat a vation applies is, that of Doe dem. Lord notice bad in its origin could not be made Huntingtower v. Culliford,” which was good by putting a strained interpretation pressed upon the court in a late case, and on terms quite clear in themselves. The has now for the first time been expressly judges also expressly declared that Doe overruled. There, a notice, dated the 27th Lord Huntingtower v. Culliford was not Sept., required a tenant who was let into good law, and that the doctrine there laid possession on the 4th August, to quit “at down, that the language of a notice might Lady-day next, or at the end of your cur- be altered to give it effect, was not mainrent year ;" the current year expired on tainable. “If we were to interpret notices the 29th Sept.; and this was held to be a upon the principle there acted upon,” says good notice for the current year ending at Patteson, J., "where could we stop?” It Lady-day, because a two days' notice could would be to say at once that every notice not be intended ; and Bayley, J., said, ap- shall be valid. parently with the concurrence of the rest Three of the four judges who thus exof the court, that the notice must be un- pressed themselves in Doe dem. Mayor of derstood so as to be effective. Doe dem. Richmond v. Morphett, determined, in the Lord Huntingtower v. Culliford was cited in case of Doe dem. Williams v. Smith, that a subsequent case of Doe dem. Williams v. the word " present” may be rejected as
Smith. In that case the tenancy expired surplusage, and a notice held valid which in February, and the notice, dated 21st was admitted to be lame and inaccurate. October, 1833, was as follows :—" at the The distinction between that case and the expiration of half a year from the delivery more recent case of Doe dem. Mayor of of this notice, or at such other time or Richmond v. Morphett is, that in the last times as your present year's holding of or case the court was not only called upon to in the said premises, or any part thereof reject, but to add words, and to read the respectively, shall expire after the expira- notice as if it ran,—"the current year next tion of half
a year from the delivery of this ending half a year after this notice." notice.” Here the present year's holding In the second case now reported, a expired in February, 1831, but as the yearly tenant gave his landlord notice on notice necessarily referred to some time the 31st January, to quit on the 1st May after the expiration of half a year from the following, and it was admitted that the notice, it was held that the word "present” notice was insufficient, but the question might be rejected, and the notice applied was, whether there was not a waiver of a to February, 1835. Both those cases half year's notice. It appeared that the were brought under the consideration of landlord at first acquiesced, but ultimately the Court of Queen's Bench in the late refused to accept the notice. The tenant case of Doe dem. the Mayor of Richmond v. quitted according to his notice, and the Morphett." There the defendant held landlord then entered and did some repairs. under the corporation of Richmond from He afterwards brought his action for use Martinmas to Martinmas, and hy a notice and occupation, for the half year's rent due dated and served on the 21st Oct., 1842, after the tenant quitted, and the Court of he was called upon to quit “on the 13th Queen's Bench held, upon the authority of day of May next, or upon such other day Johnstone v. Hudlestone, that the tenancy or time as the current year for which you was not determined by the acts of the landnow hold the same will expire.” The ob- lord, and that he was entitled to recover jection to this notice was, that it was either against the tenant.s a notice for Martinmas, 1842, in which case the time was insufficient, or for 13th t Bassell v. Landsberg, 7 Q. B. 638. May, 1843, in which case it did not expire
14 Barn. & Cress. 922.
inferred from the mere conduct of parties, 4 Dowl. & Ry. 248.
without any act done which would take effect 5 Ad. & El. 350.
as an estoppel, was discussed in a late case of * 7 Queen's B. Rep. 577.
Lyon v. Reed, in the Exchequer, reported 13