Imágenes de páginas
PDF
EPUB

278

Superior Courts: King's Bench Practice Court.

On a subsequent day, Williams, J., gave | deponent was told he had not been at the judgment. This application was made on an office for three weeks, and that it was not assumption, and it appears to me to be a mere known where he was. The deponent then went assumption that the sheriff has no power to back to the late residence of the defendant, and certify, to deprive the plaintiff of his right to left a copy of the rule with the woman he saw costs. It is clear that the certificate under the before. He afterwards called again, and the statute of Elizabeth, is to be given only by the woman told him that the defendant had not judge who tries the cause, and this application been there. The deponent swore also that he is therefore to the general superintending had made all possible enquiries, and that he authority which the Court has over the cause, believed the defendant kept out of the way to and consequently over the costs. I have not avoid service. been furnished with any authorities, nor do I know any, to shew that the Court can, where the trial is before the sheriff, deprive the plaintiff of his costs, merely on the supposition that the Court does not approve of the proceedings before the sheriff. The foundation therefore of this application fails, and the rule must be discharged, but without costs.

Rule discharged.-Story v. Hodgson, E. T. 1837.-K. B. P. C.

SECOND ARREST.-AFFIDAVIT.

Under certain special circumstances, the Court will allow the addition of a deponent to be amended on which a rule was obtained. Platt, shewed cause against a rule to cancel a bail bond, the defendant having been twice arrested for the same cause, and produced an affidavit in which the defendant had no addition to his name.

Williams, J.-This seems to me a case in which notice of the rule may be stuck up in the King's Bench Office, the rule itself being enlarged in the mean time.

Rule enlarged accordingly.-Simpkin v. Nevers, T. T. 1837. K. B. P. Č.

INTERPLEADER.-NON APPEARANCE OF CLAIM

ANT.-COSTS.

Where the claimant does not appear on a rule under the first section of the interpleader act, the Court will not award the costs of the application to be paid by him, nor will they order them to be paid out of the fund in dispute.

This was an action brought by the assignees of Walker, a bankrupt, against the defendants, to recover the value of a quantity of cloth sold to them through the agency of a man named Wise The goods had been delivered to the latter by Walker, and had been sold to the defendants. The present action was brought on Walker becoming a bankrupt; but then a Platt, asked leave to have the word "gentle-second action was brought after declaration man" added to the affidavit, and to have it

Carrington, contrá, objected to the affidavit being read as not in compliance with the rule of H. T. 2 W. 4.

resworn.

Williams, J.-I will allow that to be done. The objection was then waived.-Boskay v. Lister, Trin. T. 1837. K. B. P. C.

RULE TO COMPUTE.-SPECIAL SERVICE.

Under particular circumstances, where a defendant cannot be found, the Court will allow notice of a rule to compute to be stuck up in the King's Bench Office.

White moved to make a rule to compute absolute. The affidavit on which he moved stated, that the deponant had gone to the last known place of residence of the defendant to effect service of the rule nisi, where he saw a woman, who said she was put there by the defendant's landlord; that the defendant himself had gone away, leaving his rent in arrear, and that she did not know where he was. She then directed the deponent to the inspector of police, who she thought might perhaps know something of him Inquiry was then made of him, but he knew nothing of the defendant. Inquiry was also made at an attorney's office, where the defendan thad been employed as clerk; but the

and before plea, for the value of the goods by the assignees of Wise's estate, he having also become a bankrupt. The defendants, in consequence, obtained a rule under the 1st section of the 1 & 2 W. 4. c. 58.

Addison now appeared for the plaintiffs, and said that the claimant did not appear. The defendant did not dispute their liability to pay one of the parties, and as the claimant did not appear, his claim must be now barred, and proceedings in the action stayed on payment of debt and costs, each party paying his own costs of appearing on the rule. There was some doubt whether the Court could compel the claimant to pay the costs of the parties who were before the Court. The 1st section of the act, after providing that in such a case the claim of the third party should be barred, directed that the Court should make such order between the plaintiffs and defendant as to costs and other matters, as might appear just and reasonable. Here the only case with regard to costs which was contemplated, was between plaintiff and defendant. The case was different from applications under the 6th section of the act, which directed that all costs in an application made under its provisions should be in the discretion of the Court. The most proper course would be for each party to pay his own costs.

Superior Courts: King's Bench Practice Court.

Swann, on the part of the defendant, urged that he should be paid out of the funds in his hands. He was a mere stakeholder, and had no interest whatever in the matter in dispute, and he surely ought not be made to suffer. He cited Cotter v. Bank of England, 2 D. P. C. 728.; Parker v. Linnett, Ibid. 562; Duear v. Mac Intosh, 2 D. P. C. 730; and Scales v. Surgeson, 4 D. P. C. 231.

279

grant a distringas to compel an appear

ance.

Chilton moved for leave to issue a distringas, in order to compel an appearance. It was an action of crim. con., and at the time of the alleged cause of action, the defendant was living at the house of the plaintiff, but having eloped with the wife of the latter, they had lived at lodgings together for some time, but since Williams, J.-The defendant has overlooked then they had moved, and the defendant's rethe beneficial situation in which the Inter-sidence could not now be discovered. He had pleader Act places him. If the case had oc- been advertised in the newspapers, and incurred before that act was passed, he would quiries had been made at his last lodgings, but have had no relief but by proceedings in equity; without any successful result. It was found, whereas now he has a great benefit conferred however, that a person named Lee was in the on him by an exceedingly cheap and efficacious receipt of some rents for him, but on his being application. He contends that he should be applied to, he refused to give up the residence paid out of the funds in his hands. But why of the defendant, although he offered to send so? Why should the original vendor of the anything to him, which might be desired. An goods suffer? If any one has done wrong, it is application had been made in Hilary Term, the claimant, who has put in a false claim. that service of the writ of summons on Lee But he is not before the Court, and it is doubt-might be good service, or that a distringas ful whether I have the power to award costs against him. Should a fresh application be made against him for the costs, the Court will consider whether they have the power to make him pay them; but at present I give no opinion on that subject. There must now be a rule that the claimant be barred of his claim, and that the action be stayed on payment of debt and costs of the action, but not the costs of this rule.

Rule accordingly.-Lambert and others v. Cooper and others, E. T. 1837. K. B. P. C.

EJECTMENT.-JOINT TENANTS.-SERVICE.

might issue; but Patteson, J. refused to grant the motion. Since then the usual number of calls and appointments had been made at Lee's house, as well as at the house in which the defendant was last known to have occupied lodgings; and at the plaintiff's house, which was the last place of abode at which he was seen; and copies of the writ of summons had been left at all three places; and it was sworn now, that it was believed that he kept out of the way to avoid service of process. The 3rd section of the stat. 2 & 3 W. 4, c. 39, required that it should be shewn, that the defendant had not according to the exigency of the writ, appeared to the action, and could not be compelled to do so, without some new efficacious process. It was submitted, that this was sufficiently shewn to be the case.

Where a service of a declaration in ejectment on one of several tenants is sufficient. G. T. White moved for judgment against the Coleridge, J.-The defendant may have been casual ejector, on an affidavit stating a service abroad previous to the commencement of the on "William Smith, tenant in possession, toge-action, and I therefore feel some difficulty in ther with A. B., C. D., and E. F." He submitted granting the application. that on this affidavit it appeared, that the three last named persons were joint tenants together

with William Smith, and that as service on one joint tenant was sufficient, he was entitled to have a rule absolute as to all four. He referred to the case of Doe d. Bailey v. Roe a.

Williams, J.-I think that will do.

Chilton cited Moon v. Thynne, 3 D. P. C. 153, where a distringas was issued against the defendant, who had abroad to avoid sergone vice of process, leaving servants at his town house. The plaintiff's object here was, to obtain a verdict against the defendant, with a view to proceedings in the Ecclesiastical

Rule absolute granted as to all.-Doe d. Courts, to obtain a divorce. The outlawry of Doulan v. Roe, E. T. 1837. K. B. P. C.

DISTRINGAS TO COMPEL APPEARANCE.

Where a defendant's residence cannot be discovered, but service of copies of the writ of summons having been effected after the usual calls and appointments at the two last known places of abode of the defendant, as well as on an agent, who states himself to be in communication with the defendant, the Court will, under certain circumstances,

a1 Bos. & Pul. 389.

the defendant, therefore, would be of no avail. It was hoped that the plaintiff had made out a case sufficient to induce the Court to exercise its discretionary power.

Coleridge, J.-You may take your writ. Writ granted.-Grindley v. Thorn, E. T. 1837. K. B. P. C.

280

Miscellanea.—The Editor's Letter Box.

MISCELLANEA.

SERJEANTS' INN.

The old buildings of this Inn are now nearly levelled to the ground. It may not be inappropriate or uninteresting to read the following historical description of them, abridged from Herbert's Antiquities of the Inns of Court and Chancery.

:

iiiil. per ann. doing all repairs; which rent he paid till the year 1490; how much longer does not appear; for in 1492 it was in the bishop's hand for lack of a tenant but after this it was but a while out of the judges' and serjeants' tenancy: for in 1508 (which was the last year of the reign of king Henry VII.) it was demised by indenture by the name of Hospicium in Chancelers Lane vocatum Serjeants Inne to John Mordaunt and Humphery

In 2 Ed. VI,[1547,] T. Goodrick, then bishop of Ely, by a lease bearing date 17 Dec. demised it to Chr. Fulnetty, his brother-in-law, for lxxxi years; which lease coming by mean assignment to Sir Anth. Ashley, knight, and then by surrender to bishop Felton, that bishop granted it to the said Anthony for three lives, (viz. of Philippa, then his wife, afterwards married to Carey Rawley, Esq, and two of his servants).

This Inn consists of two small courts, sur-Coningsby (then two of the king's serjeants at rounded by the judges' chambers, which are law), at the rent of iiiil. per annum, keeping spacious and handsome rooms.[?] The princi- all repairs." pal entrance is from Chancery Lane, and fronts the hall the second court communicates with Clifford's Inn, by means of a small passage. The ascent to the hall is by a very handsome flight of stone steps and ballustrade. It is built of brick, with stone cornices, and ornamented in front with a handsome pediment, surmounted by a turret and clock. The inside is not large, but forms a well proportioned apartment; and the windows, like those of most of the other halls, are decorated with armorial bearings in stained glass. The chapel is a small neat edifice, with seats for the judges, but is no ways remarkable.

This inn did not attain its present appella. tion of "Serjeants' Inn" till about the year 1484; previous to which it was called "Faryngdon's Inn, in Chancellor's Lane;" and still earlier, viz. in the 17th of Ric. 2, it was mentioned by the name of "Tenementum domini Joh. Skarle." It was at this period let by the Bishop of Ely's appointment, whose estate it was, to one of the clerks of the Chancery, as appears by the bailiff's account to the then bishop.

It is probable that the serjeants at law had lodgings here in 1414, for the bishop's bailiff accounts for the repair of Askham's chamber, by which it seems that the lodgings were let apart soon after, however, the whole house was entirely demised to the judges and others learned in the law; for in 1416 there is accounted to the bishop vil. xiiis. iiiid. pro Faryndon's Inn in Chancellors Lane, dimisso Rogero Horton et Willielmo Cheney, justiciariis, et Waltero Askham apprentisio legis.

Besides this Walter Askham, there was about this time one Robert Askham, serjeant at law, who was of council to the bishop of Ely, and had xls. per annum, pension for the same.

It seems that the judges and serjeants were not constant tenants to the bishop in those days for this house; but in 1440 it was again demised "Joh. Hody et aliis servientibus legis." for the rent of vl. per ann. In 1474 it was let to Sir Robert Danby, knight, then Chief Justice of the Court of Common Pleas, and other the judges of that time, at iiiil. per ann. And two years after, in 1476, to Sir Thomas Grey, knight, at the like rent of iiiil. per ann.; which rent from him the said Sir Thomas Grey is accounted for from that time till the year 1481 inclusive. And in 1484 the same Sir Thomas Grey had a new lease thereof by the name of Hospicium vocatum Serjeants Inne in Chancellers Lane, at

THE EDITOR'S LETTER BOX.

[blocks in formation]

He

A correspondent who has given all the notices required for the examination, with the exception of the one ordered to be left for the Examiners with the Secretary of the Law Society, must apply to the Court for a rule authorizing the Examiners to take his examination. should support his application by an affidavit of the circumstances, accounting for the omission. The Court intimated last term that they would not continue to excuse these mistakes; but perhaps the candidate may succeed, as all the other notices have been given. He should apply early in the term. The list of persons to be admitted next term, as given in this work, is of course not the same list as that of the candidates for examination, because they have till the following term to be admitted. There can be no inference drawn of the party having been "plucked" as supposed.

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

REFORM IN CHANCERY.

No. I.

We think we cannot employ some portion of this vacation to better purpose than in bringing before the public the present state of the Court of Chancery. We have already from time to time devoted much space to this subject; and we have deeply to regret that during the last session no attempt even was made to remedy any one of the many grievances connected with it. We have to repeat verbatim the statement which we made exactly a year ago: "That the real grievances are simply these,—that a great delay should never exist when a cause is set down and ripe for hearing; that this delay now exists to a very great extent, there being a very large arrear of causes; and that this arrear, in the present constitution of the Court, it is impossible to prevent."

We are happy, however, to say that the feeling in favour of Chancery Reform is daily increasing, and is receiving support from persons the best qualified to promote it. The latest contribution on the subject is the publication of Mr. Garratt, which, whether we look to the character of the writer, or the contents of the work, appears to us to merit great attention. So valuable indeed do we think it, that we shall endeavour in this and subsequent articles to give a complete summary of it.

Mr. Garratt very properly commences by adverting to his own experience as a

a 12 L. O. 313.

b Suggestions for Reform in Proceedings in Chancery, particularly in respect of the Pleadings, the mode of taking Evidence, and the Accounts and Inquiries usually directed. By William Albin Garratt, M. A., Barrister at Law. 1837.

VOL. XIV.—No. 414.

Chancery barrister. After alluding to the necessary delay and expense attending some suits in Chancery, he continues tl.us:

"Suits involving such operations as these cannot but be attended with expense and delay; and particular instances, in which these mischiefs have been strongly exemplified, have sometimes been unfairly held up to public Chancery of eight-and-twenty years, during censure; but an experience in the Court of the latter portion of which I held no inconsiderable share of professional business, has strongly impressed me with the conviction that, after making all due allowance for these causes of expense and delay, there remains was much directed to this subject while I conjust ground of serious complaint. My mind tinued in practice; but I was unable to find the leisure which it required, to arrange satisfactorily my own thoughts upon it, and to consider maturely the voluminous and important evidence annexed to the Report of the Commissioners appointed in the year 1824, to which I shall have occasion frequently to advert. On retiring from my profession, I again directed my attention to the subject: and a careful exainination of the report and evidence confirmed my own previous impression of the evils attending the present system of Courts of Equity, and led me to inquire whether they were evils inseparable from such Court, or such as might be removed or materially mitigated by an alteration of the system.”

He then proceeds to state the steps which have already been taken for effecting a reform, the principal one being the Chancery Commission, appointed in 1824, which he says " has at least to a great extent proved a failure." p. 4. He objects that the Commissioners were not directed to inquire at all into the pleadings in equity, and that

[ocr errors]

the result has proved that while the present system of pleading, and the present mode of taking evidence in Chancery are continued, very little can be done, either to accelerate the business of the Court, or to

T

282

:

Reform in Chancery.

diminish the expenses of a suit;" and he that he happened to take, in this instance, of points out the difference in this respect counsel's duty. Qu. 127. Do not many in the instructions given to the Common cases occur, within your knowledge, in which Law Commissioners. The following is Mr.invented cases? I know that there have been such bills [injunction bills] have been merely Garratt's opinion as to equity pleading: many such cases: and I have heard of instances "The system of Equity Pleadings, and the in which it has been thought so much a matmode in which questions of fact are investiter of course to have an injunction bill drawn, gated by the Court, still require to be fully that the only instructions given to counsel, reviewed and I am persuaded that they admit have been to this effect; Such an action pending of essential improvement. I entertain a strong between such parties; please to draw an injunc conviction, the result of more than a quarter tion bill. Of course, such instructions could of a century devoted in a great measure to not be acted upon." (Minutes of Evidence, equity drawing, that the faulty system of p. 178.) Mr. Vizard in his evidence states, equity pleadings, and the clumsy, inefficient, that he has heard that it frequently occurs, and unsatisfactory method in which Courts of that a defendant in the last stage of insolvency, Equity receive evidence and investigate litigated files an injunction bill, containing statements questions of fact, lie at the root of those evils wholly unfounded in fact; and that the defenin the system which are felt by the public; and dant in equity (the plaintiff at law) has to pay that, until the legislature strikes at these fun. a considerable sum for the office copy of such damental defects, all other attempts at reform bill, and ultimately, loses both debt and costs. in Chancery will be almost inoperative." (lb. p. 35. qu. 54.)”

Thus much is introductory matter. The writer then proceeds in medias res, and attacks the whole system of bills of discovery and injunction bills.

After alluding to many other points connected with this subject, he thus proceeds, with respect to what are called common injunctions:

"The whole bill (he says) may be a fiction from "There is a great concurrence of opinion the beginning to the end, invented (without the among the witnesses examined before the mcat remote foundation in truth) for the pur-commissioners as to the injustice resulting pose of delaying payment of a just demand. The from the practice of Courts of Equity in grantevidence given by the present Vice Chancellor, ing injunctions to stay proceedings at law. on this point before the commissioners, is well The present Master of the Rolls thus exdeserving of attention. I have known this pressed himself: One can scarcely conceive happen to me in practice, that I have had a a mode of doing injustice more effectual than copy of a promissory note sent to my cham- that which is sometimes employed in cases of bers, when I was a draftsman, with a statement bills filed for injunctions to stay proceedings that an action had been brought by the holder at law. Where the defendant resides in a reagainst the drawer, and I was requested to mote part of the country, it is not an uncom draw a bill of injunction, without the sugges- mon thing for the plaintiff's agent to wait tion of a single fact: upon which I drew a bill with the subpoena in his hand till after the of injunction, inventing of course, out of my post is gone, and it has become impossible to own head, a set of facts, which were so intro- have a communication with London on that duced, and so connected with the promissory day, and then to serve the subpoena. In the note, as to make it appear that there was a Exchequer, where the time for appearance is prima facie equitable ground why there should less than it is in the Court of Chancery, the not be execution taken out and judgment re-device which I have mentioned has been frecovered. I recollect considering very well, quently employed for the purpose of obtaining whether that was a right thing to do; but I injunctions. Under the circumstances, it has thought this, that if those who had the control been absolutely impossible for the party to ap of a Court of Equity did not choose to take pear in the time limited by the Court, yet his away that species of defence to a legal pro- non-appearance is construed a contempt; for ceeding, it was not for me to say my client that falsely alleged contempt an attachment should not have it." (Min. of Ev. p. 206, qu. issues, and upon the attachment there is an 271.) The present Master of the Rolls, in his order of course for an injunction: the legal evidence, confirmed the Vice Chancellor's remedy of the defendant is suspended, and statement, as to cases being invented, but dif- before he can remove the obstacle thus placed fered from him, as I certainly doa, in the view in his way, the whole subject of his action may be entirely lost. In the Court of Chancery, where the time allowed for answering is only eight days after appearance, unless the defendant collects his accounts and documents, and comes to London without delay, he cannot put in his answer in the time limited. If he takes no step, he is accused of contempt, and the injunction goes upon an attachment; if he takes out a dedimus (a commission to take his answer in the country), or obtains an order

a "Early in my professional life, instructions were sent to me, to draw an injunction bill. The instructions consisted merely of a copy of a charter-party, and a statement that an action had been brought upon it. I returned the instructions without hesitation, saying that I saw no ground for a bill. No doubt, I was to have invented a case. The solicitors were a firm of great respectability."

« AnteriorContinuar »