Imágenes de páginas




Analytical Digest of Cases.-Superior Courts : Lord Chancellor.

61 his executors to sell bis property, and to invest enter into the merits of a cause not attached to the proceeds on government or real securities, his court. Arnold v. Arnold, 33 L. (). 566. in his wife's name alone, or jointly with his ex- The point in the present case involved the conecutors (with power to change the recurities): struction of the words " last answer” and “t!.e. "To hold the same, unto my wife for her own last of several answers," as used in the above absolute use, benefit, or disposal: And whereas order and in Nos. 66 and 68 of the sane I have hereby manifested abundant proof ot orders, and the question was, whether they imentire confidence in my said dear wife, by thus plied the last answer filed or the last answer to giving her the sovereign control over the whole be filed. Here there were several defendant, of my property, for her sole use and benefit, some of whom had not answered, but more which she will duly appreciate accordingly; than four weeks had elapsed since the last an-but, in so doing, I nevertheless earnestly con- swer of those wlio bad answered was to be jure her, under the advice of my executors, to deemed sufficient. The case of The King of proceed, forthwilh, to make ample provisions, by Spain v. Hullett, 3 Sim. 333, decided, that deed or will, for our only child and grandchild.under the corresponding order of the old pracThe will concluded with a power to the wife, tice (13th Order of April

, 1828,) it was irreguwho was executrix, and to the executors, to re- lar to obtain this order of course after the time tain their expenses out of the testator's estate : had elapsed as to all those defendants who Held, that no trust was ordered by the will, in were within the jurisdiction, although no an. favour of either the daughter or the grand- swer had been filed by another alleged to le daughter. Winch v. Brutton, 14 Sim. 379. out of the jurisdiction. The learned counsel See Foreign Funds,

then referred to Cooke v. Betham, 1 Coop. 403 ;

Foreman v. Gray, 33 L. 0. 452 & 568, (called WIDOW.

Freeman v. Gray at the first reference); Arnold See Bequest,

v. Arnold, 33 L. 0. 566; and Dalton v. Hayter,

7 Beav. '596, (31 L. 0. 112); he was proceedRECENT DECISIONS IN THE SUPE-ing with his argument when RIOR COURTS.

The Lord Chancellor having remarked that the words in the 66th Order clearly meant the last answer to which a replication might be filed, inquired if all the defendants had been

served with subpæna to appear and answer, Lord Chancellor.

and the case was directed to stand over until

the following seal day. Arnold v. Arnold. April 30, and May 8, 1847.

May 8th, Mr. Elderton stated that some of NEW ORDERS (Nos. 16, (ART. 33,) 66 and the defendants had not been served, but all - 68).-CONSTRUCTION.-THE LAST OF SE- who had been had appeared and answered. VERAL ANSWERS.-DISCHARGING ORDER Mr. Cooper said, his argument was then at an

end, as the case of Cooke v. Pectham, (suprà,) The terms the last answer,and the last the old order upon which the present is

decided that parties not served were not within of several answers,used respectively in the

founded: several orders of May, 1845, numbered 16,

Mr. Hare followed on the same side, con. (Art. 33,) 66 and 68, refer to the answers put in by the last substantial defendant who tending that the last answer must mean the last has been served wiļh subpæna to appear

answer on the file, and that as each answer

and Therefore a plaintif may obtain

came in a new right accrued to the plaintiff to one order of course for leave to umend at and he mentioned a case of Myers v. Weatherali

, amend his bill by obtaining the order

of course, any time within four weeks ofter the last of several of such defendants has put in a after last Hilary Ferm, in which the question

argued before his lordship during the sittings sufficient answer ; but this indulgence of applying to this court was raised." does not extend to cases where a defendunt Mr. Elderton, contrà, referred to the cases is merely nominal, or has not been served cited above from the Legal Observer. Another with subpæna to appear and answer.

ground of objection was, that the other side To discharge on merits, or otherwise than for were wrong in coming here to make the appli

irregularity, an order of course to amend cation. If there had been delays, the defendobtained at the Rolis in a cause attached to ants should have moved that the plaintiff another court, application must be made to should get in the outstanding answers, so that the Lord Chancellor.

the bill might be taken pro confesso as against Mr. Cooper stated that this was an appeal such as did not answer. This had been demotion from a decision of the Master of the fined to be the practice by his lordship in Rolls. The cause was attached to the court of Masterman y. Lewin, 33 L. 6. 353. the Vice-Chancellor Wigran, and the plaintiff Mr. Cooper, in reply, submitted thạt they had obtained at the Rolls an order of course to were right in applying to this court, amend, under the New General Orders of May, 1845, No. 16, Art. 33, which order to amend a This case was not decided by his Lordship his lordship had on moton refused to discharge, upon this point, but was dismissed as an apas it was not irregular, and as he could not peal for costs only.--REPORTER.




Superior Courts : Rolls.- Vice Chancellor.






The Lord Chancellor thought that it was The motion was afterwards renewed, when qute right to make the application to this court. it appeared that the witnesses were required to With respect to the words of the Orders, he prove certain deeds, which were admitted by thought that they were hardly debatable. It the party who had answered; but were said was quite clear that “the last answer” could not to be forthcoming, and therefore could not not mean the last answer on the file. The be proved as exbibits at the hearing. Order never could intend such an absurdity. Lord Langdale, after stating the facts, said, It must mean the last answer to which replicar that the plaintiff had been guilty of great netion might be filed, and must therefore contem- gligence, but it was not to be considered plate a substantial and not a nominal defend- whether the refusal of the motion would not ant. The case of the The King of Spain v: occasion greater inconvenience to all parties Hullett, (suprà,) decided, that the former order than the granting it. If the cause came on did not apply to defendants out of the jurisdic- under the circumstances now stated, there must tion. There was no doubt that on the merits be an inquiry whether such deeds as were althis order for leave to amend ought to be dis- leged to have been executed were so executed; charged, but the notice of motion should be and that would occasion fresh delay; but he amended by leaving out the words " for ir- should for the shortest possible time for public regularity.

cation to pass, which it was reasonable to allow The order was afterwards discharged by under the circumstances. Ordered hat the consent, without any fresh notice of motion replication should be withdrawn -- that the being required by Mr. Elderton.

plaintiff should be at liberty to file a new re

plication, and that publication should be enRolls Court.

larged to the last day of Trinity Term. The

costs to be paid by the plaintiff. Sanderson v. Williams. March 11th and April 22, 1847.

Vice-Chancellor of England.

Walsh v. Trevanion. April 28th, 1847. The court will, under peculiar circumstances,

relax its rule of not allowing evidence to be taken after publication, and for that purpose allowed replication, which had been To support a demurrer to interrogatories askfiled before all the answers were got in to be ing a wi'ness to produce certain letters and withdrawn.

documents, it is not suficient to allege geneThis was a motion that publication might

rally that they were received in a confidenbe enlarged without prejudice to the depositions

tial capacity; enough must be stated in the of witnesses already taken. The suit was a

demurrer to show that they were confi

dential. redemption suit, and the bill was filed in 1844 against three defendants, one of whom only This suit was instituted for the purposes of was at the time of filing the bill considered to rectifying a marriage settlement, and have it debe materially interested in the questions in the clared that it was intended to comprise a part

The defendant put in his answer in only of the property described in the general 1845, and the plaintiff, without getting in the words of the deed. This intention was supanswer of the other defendants, filed his repli- posed to be manifested from certain letters and cation. The cause had stood over till the pre- communications which took place with a Mr. sent time, while negotiations were pending Burley, the solicitor to the defendant at the which had come to nothing, and the plaintiff time of the marriage; which letters and comwas now desirous of prosecuting the cause 'munications it was contended formed a valid against all the defendants, and for that purpose agreement, and that the alteration afterwards of examining witnesses.

marle in the description of the property in the Mr. Kindersley and Mr. Hure, for the motion, deed was contrary to the intention of the said, that it was put in its present form to parties. Mr. Burley was examined as a witness avoid the difficulty attendant upon an applica- by the plaintiff, and to the interrogatories asking tion, namely, the endangering any evidence him whether there was not in his possession ceralready taken.

tain writings and correspondence relating to the Mr. Bloxome, contrà, contended, that the said settlement he put in a demurrer to the fol. plaintiffs had made out no case to entitle them lowing effect :-“To so much of the 15th and to the indulgence now asked.

17th interrogatories as call upon me to produce Lord Langdale observed, that no answer any correspondence in writing with reference could be received after replication; it would to the settlement I demur, so far as regards therefore be necessary that the replication any letters I received with reference to the should be withdrawn, and that there was no- aforesaid matters from Mary Brereton and thing of which the court was more jealous than Charlotte Trelawney, and for cause of deallowing fresh evidence to be taken after publi- murrer say that such letters do not refer to any cation; and directed the cause to stand over, that particular estates to be settled on such marhe might obtain more explicit information as riage, and I received such letters in my characto the points upon which it was desired to ex- ter of confidential solicitor to those ladies, and amine witnesses.

I therefore submit that I ought not to be called


in person.

Superior Courts: Vice-Chancellor.- Queen's Bench.-Q. B. Practice Court. 63 on to produce the same.” And to the inter- although it was alleged in a former part of rogatory asking him whether there were not in the order that the putatire father appeared his possession any books or papers containing any entry relating to or connected with the

An order in bastardy having been removed said marriage settlement, he put in a second into this court by certiorari, a rule nisi was demurrer as follows :—"To so much of the obtained for the purpose of quashing it. The 29th interrogatory as requires me to produce order was made under the 8 & 9 Vict. c. 108 and identify the books or papers containing and followed the form number 8 in the schedule any entries connected with the settlement, I annexed to the act. The order recited the birth demur, and for cause of demurrer say, that the of the bastard child; that a summons issued to said book or ledger contains particulars of N. Shipperbottom, the alleged father of the confidential inatters between myself and my child ; that the said N. S. appeared in pursuclients.''

ance of the summons; that the woman having Mr. Stuart and Mr. Beavan, in support of applied to the justices for an order on the said the demurrer, uiged that the witness in his N.S.; and it being now proved to us in the demurrer had clearly embodied the rule of law presence and hearing of the attorney attending relative to the privilege of an attorney: he had on behalf of the said N. S., that the said child stated that he was the attorney; that the com- was, &c. The words “of the attorney attendmunications were confidential; and that they ing on behalf of the said N. S.,” were inserted related to the subject-matter in dispute. That to fill up the blank left in the form given in the was sufficient. How was it possible to enter schedule, and the objection taken to the order into the question of woat was contained in the was, that it did not appear that the order was communications? They cited Parkhurst v. made in the presence of the putative father. Lowten, 2 Swans. 194; Carpmuel v. Pouis, Mr. Pashley. In convictions the court has 1 Phill. 687; and Herring v. Clobery, i Phill. held, that it must appear that the witnesses 91.

were examined in the presence of the prisoner, Mr. Bethell and Mr. Tillcock contrà.

but the court has never held that orders are to The Vice-Chancellor said, he could well un-'be construed with the same degree of strictness. derstand that if the witness had been pressed When the jurisdiction of the justices is made on the que-tion, he might have stated things 19 appear on the face of an order, the court will which would have been sufficient to show that make every intendment in favour of its validity. these comunications were confidential. The Mr. Keane, contrà, contended that it was eviquestion was, whether he had done so upon dent from the form given in the schedule that these demurrers. He said that he received the it was intended the putative father should be letters in his character of confidential solicitor present when the order was made, and the act to those ladies. He might have done so, but does not give him any power to appear by athe had failed in stating sufficiently that the torney. letters he refused to produce were of a confi- Lord Denman, C. J. I had some doubts dential character; that fact was not stated ex- upon the validity of this order, but upon referplicitly enough to make it the ground of a law-ence to the Forms No. 7 & 8 in the schedule ful objection. As to the second demurrer,' annexed to the act, I find from a note that the that was in itself quite general. He did not legislature contemplated the fact of the putative say that the entries contained inatters of con. father appearing by attorney or counsel. This fidential cominunication with reference to the remores my difficulty, and I think the order alsubject of the 29th interrogatory, as between leging that proof was given in the presence and hinn and the ladies, or either of them; that he hearing of the attorney attending on behalf of had not hy his position of fact made a sufficient the said putative father, is sufficient. ground for protection at law. His Honour'

Patteson, J. It is quite clear the legislature therefore overruled the demurrers with costs, intended that the putative father might appear but without prejudice to his demurring again. by attorney or counsel, otherwise I should

have had some difficulty, because it is stated in Qucci's Bench.

the early part of the order that he attended in (Before the Four Judges.)

person, and in a subsequent part of the order

that he appeared by his attorney. The Queen v. Nathaniel Shipperbottom. Easter W'ightmun and Erle, J.s concurred. Term, 1847.

Rule discharged. ORDER IN BASTARDY UNDER 8 & 9 VICT.

Quren's Bench Practice Caurt. A person against whom an application is made (Before Mr. Justice Coleridge.)

for an order in bastardy, under the 8 & 9 Mullins and another v. Ford. Tuesday, Vict. c. 10, may appear before the magis.

4th May, 1847. trates by attorney or counsel. on orner made according to the form given in

COUNTERMAND. the schedule annexed to the act, which states that the proof was given in the presence

Where the plaintifs replication concludes to ann heuring of the attorney appearing on

the country, he may at once give notice of

triul, although issue is not formally joined behalf of the pututive father, is sufficient,

between the partics.

c. 10.





[ocr errors]
[ocr errors]


[ocr errors]
[ocr errors]

25 26






29 31





[ocr errors][merged small][merged small][merged small]

64 Q. B. Practice Courl.-Court of Review.--- Sittings.-Parl. Proceedings.Letter Box. Where a rule nisi contains a stay of proceed- Mr. Cole applied to remore the fiat from

ings, this only restrains the parties from Bath to London, upun an affidavit stating that proceeding with the action, but does not six-sevenths of the creditors resided at Luton, preclude them from countermanding their near London, and had expressed their wish to notice of trial.

have the removal. On a former day Bramwell obtained a rule

The Chief Judge said, he would make the calling upon the plaintiffs to show cause why order as prayed, upon the production of an af. the notice of trial herein should not be set aside fidavit stating that the removal of the fiat would for irregularity, with costs, and that in the not only be for the benefit of the majority of meantime all further proceedings be stayed.

the creditors, but for the benefit of the creditors This was an action of detinue, in which the de- generally. fendant pleaded “non detinet,and two special pleas, to which the plaintiffs replied, joining CHANCERY SITTINGS. issue on the first plea, and traversing the other pleas, concluding to the country. The defend

Waster of the Lolls. ant had not been ruled to rejoin, but some days after the delivery of the replication the plaintiffs served notice of trial for the Middle: Saturday. May 22 Motions. sex sittings after the present Easter Te: m, Monday

| Petitions in the General The present rule was obtained on the ground

1 Paper. that the notice of trial was irregular, issue not Tuesday

Pleas, Demurrers, Causes, having been joined between the parties.

Fur, Directions and Ex

Wednesday T, W. Saunders showed cause, and produced

ceptions. an affidavit swearing to the countermanding of Thursday

27 Motions. the notice of trial in due time, and contended— Friday

28 1st, that the present application was premature Saturday

Pleas, Demurrers, Causes, and unnecessary, inasmuch as the plaintiffs, by Monday

Further Directions, and

Exceptions. the rules of practice, were at liberty to with: Tuesday

June 1 draw their notice of trial as they had done, and Wednesday that if they proceeded to trial with the pleadings Thursday 3 Alotions. incomplete, the defendant might come and set

Friday it aside; 2ndly, that the notice of trial was per- Saturday fectly regular; the R. G. H. T. 2 W. 4, r. 59, Monday

Pleas, Demurrers, Causes, authorising the giving of the notice of trial at the Tuesday

Further Directions, and time of delivering the replication, if the latter Wednesday


9 concludes to the country, even though issue be Thursday not then joined.

Petitions in the General Bramwell. The plaintiffs have violated the Friday ·

Paper. present rule, which stays proceedings by coun. Saturday 12 Motions. termanding the notice — (Coleridge, J.-That

Short Causes, Consent Causes, and Consent Pemerely restrains them from going forwards with titions every Saturday at the sitting of the court. the action, here they go backwards,) — they must bring themselves strictly within the rule and copies left with the secretary, on or before the

Notice.-Consent Petitions must be presented, of court which enables them to give their no- Thursday preceding the Saturday on wbich it is tice of trial at the time of delivering their repli- intended they should be heard. cation; here their notice was not delivered until some days afterwards.

PROCEEDINGS IN PARLIAMENT REColeridge, J. The rule must be discharged.

LATING TO THE LAW. I think the plaintiffs were perfectly regular in their notice of trial; for although it is said by

The Royal Assent has been given to the the terms of the rule of court that the notice of Inclosure of Commons Bill. The Bills relattrial may be given at the time of the delivery of ing to Gifts for Pious Purposes, and as to the replication, the object i3, that when the Agricultural Tenants' Right, have been postformal pleadings are at an end, the plaintiff may poned. The Taxation of Costs on Private Bills give his notice of trial without delay, and it requires attention. can make no difference in principle whether be gives his notice at the same time as his replication or afterwards.

Rule discharged with costs.
Court of Hicbicw.

The large space devoted this week to the

new Association of Metropolitan and Provincial Re Pyne. May 5, 1847.

Solicitors has rendered it necessary to post

pone several letters. The affidavit for removal of a fiat from one

The suggestion of P. R. A. shall be followed commissioner to another, ought to state that up. such reinocal will be for the benefit of the The queries of A Subscriber, at Haverfordcreditors generally.

west, shall be inserted.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]


SATURDAY, MAY 22, 1847.

“ Quod magis ad nos
Pertinet, et nescire malum est, agitamus."


THE LORD CHANCELLOR'S BANK present instance, to do little more than RUPTCY LAW AMENDMENT BILL. direct attention to the more important

amendments which the bill suggests,

merely observing, that if no greater or We lost no time in laying before our more extensive changes in the Law of readers a brief sketch of this measure Bankruptcy and its administration are conshortly after its appearance in print, and a templated than those suggested by this recent number contained a summary of the bill, the measure can scarcely be expected contents of each clause, copied from the to silence the complaints, or satisfy the marginal abstract, (ante, p. 20.), In one just expectations, of the public. The Law respect, the present measure undoubtedly of Bankruptcy is objectionable in many begins at the right end. It repeals no less respects, but the total absence of system than sixteen statutes, so far as they relate which prevails in its administration has to matters in bankruptcy, commencing with tended, more than any defects in the law the 6 Geo. 4, c. 16, and concluding with itself, to render it inoperative and odious. the 9 & 10 Vict. c. 28.

Amongst the most striking changes which There might be some reason to com the new bill proposes in the existing law, we plain, that no attempt appears to have been may notice, in the first place, the amendment made to abridge the clauses copied from

suggested with respect to a trader debtor's the repealed acts which it is now proposed sunimons as the foundation for a compulto re-enact, but, if we understand rightly, sory act of bankruptcy. Our readers will the bill presented by the Lord Chancellor remember that the summons issued to a is not put forward as a digested, complete, trasier debtor, under the 5 & 6 Vict. c. measure which parliament is invited to 122, calls upon the debtor either to admit pass in its present shape, but merely as an the demand of the creditor, or depose that example of the manner in which the mul- be believes he has a good defence to such titudinous enactments now in force may demand ;a and if the debtor is minded, be reduced into something like

upon any ground real or fanciful, to swear order, and some obvious improvements en- he believes he has a good defence, there is grafted thereon. Ample time, we presume, an end of the matter, the whole proceeding will be allowed for the consideration of the is inoperative, and according to the pracsubject, and further amendments intro- tice adopted by the Commissioners of duced as the bill assumes a more perfect Bankruptcy, the summons is discharged form, and the suggestions which the

hc with costs to be paid by the creditor. The manner of its introduction invites are provision, which leaves it altogether to the severally entertained, and either adopted conscience of the debtor to determine his or rejected, as may be deemed expedient.

own belief as tò the existence of a good Regarding the Lord Chancellor's bill in defence, renders the proceeding in many this light, any critical examination of its provisions would be premature and scarcely

· See vol. 31, p. 541. justifiable. We propose, therefore, in the b In re Feare, Leg. Obs, vol. 31, p. 466.

Vol. XXXIV. No. 1,002.

system and

[ocr errors]
« AnteriorContinuar »