Superior Courts: K. B. Practice Court.

28

SUPERIOR COURTS.

King's Bench Practice Court.

BAIL.-NOTICE OF JUSTIFICATION.-HOUSE

KEEPER.-FREEHOLDER.

If a bail is described as a housekeeper and he is not, the fact of his being a freeholder will not cure the notice,

Wallinger opposed bail, on the ground that he was misdescribed in the notice of justifica.

not a

door, and therefore the person seeking to make the entry could not put his finger in. The entry therefore was by standing on the threshold of the house and laying hold of an iron bar attached to the door.

Littledale, J.-That will do, under the circumstances.

Rule granted.-Doe v. Roe, M. T. 1833. K. B. P. C.

ARTICLES.

tion. The notice of justification described the ATTORNEY.-CLERKSHIP. — DISSOLUTION OF bail as 66 a housekeeper." On examination, however, he admitted that he was "housekeeper," but a mere "lodger." On further examination, however, he stated that he had a freehold.

Where the Court will interfere to discharge articles of clerkship to an attorney.

Platt applied for a rule nisi, to discharge certain articles of clerkship, entered into between a Mr. Frederick Hagard and an attorney of the Court; that service of the rule, by leaving it at the attorney's last place of abode, and sticking up a copy in the King's and that Bench Office, should be good service;

Comyn, in support of the bail, submitted, that although the bail had been described as a housekeeper in the notice of justification, yet as it appeared, on the bail coming up to justify, he was a freeholder, that was sufficient. Wallinger contended, that as the rule of T. T. 1 W. 4, required the notice to state whe-cause should be shewn at chambers. The genther the bail was a housekeeper or freeholder, tleman in question had been articled in the year it could not be said that there had been a com- 1829 to the attorney, and had served as a clerk pliance with that rule, when a person who was until the 4th of May, 1833, when the attora lodger had been described as a housekeeper. ney becoming insolvent, found it necessary If he had been described in the notice of justi- to remove suddenly out of the country. He fication as a freeholder, it would have been had made over his business to his late partner, different. If he were a freeholder, that was but had not assigned the clerk, on whose behalf a sufficient qualification, in one point of view, the application was made. The consequence to become bail; but the mere fact of the bail was, that as the attorney was out of the counbeing a freeholder appearing on the examina-try, it was necessary that the Court should intion, could not render the notice good. Whe- terfere in order to procure the assignment of ther he was a freeholder or a housekeeper must the clerk to some new employer. appear in the notice. Proof of the bail being Taunton, J.-You take a rule to shew a "freeholder," could be no support of the cause; and let it be served in the manner description "housekeeper," in the notice of prayed. justification.

Littledale, J., was of opinion that the bail had been improperly described in the notice of justification. He was a lodger, and he was described as housekeeper. The fact of his being a freeholder could make no difference. Perhaps it might have been different under the old rules; but the rules of Trinity Term, 1 W. 4, were peremptory. The bail must therefore be rejected.

Bail rejected.-Wilson's bail, M. T. 1833. K. B. P. C.

EJECTMENT.-VACANT POSSESSION.ENTRY

AND OUSTER.

Kule granted. 1833. K. B. P. C.

may

Ex parte Hagard, T. T.

TAXATION OF COSTS.

How the Court will interfere to amend the postea for the purpose of disposing of the question as to the taxation of costs.

This was an action on the statute, for not setting out tithes, and was tried before Bosanquet, J. and a special jury, at the last summer assizes at Stafford.

The declaration consisted of three counts: the first for not setting out the tithe generally; the second alleged a custom to give a reasonable notice of setting out, and that the defen

In the case of a vacant possession, what will dant cut and carried without setting out or dispense with the usual entry.

Dowling moved for judgment against the casual ejector. It was the case of a vacant possession, and the peculiarity in the case was in the mode of making the entry. The usual mode of effecting the formal entry in such cases, was by putting the finger into the keyhole; but here there was no key-hole in the

giving any such notice; the third was a common count for tithe retained. Plea, nil debet. Verdict for plaintiff on the first count, with one shilling damages, and for defendant on the second and third counts. No evidence was adduced on either side as to the custom of giving notice to the rector of setting out the tithe, as alleged in the second count; nor was any other evidence gone into under either that or the

Superior Courts: K. B. Practice Court.-Notes of the Week.

third count. On the contrary, the whole case appears to have been disposed of under the first count.

The defence set up was another custom, namely, a custom by which the rector was bound to take an eleventh instead of a tenth as his tithe, and which, indeed, appears to have been the main question in the cause.

The witnesses were numerous on both sides, and the greater part of them were examined. The defendant succeeded in establishing the custom of tithing by the eleventh; but as to a small portion of the tithe, the plaintiff proved that it never was set out at all. And for that he had a verdict.

The witnesses to prove this particular fact were but few in number; but the pleadings being silent as to the custom of the eleventh, and the finding for the plaintiff on the first count consequently general, the Master doubted whether he could, in such a case, sever the plaintiff's evidence, (i. e.) whether he was at liberty to disallow so much of it as was applicable to the custom.

The plaintiff swore that all his witnesses were necessary in support of the first count: on the other hand, the defendant swore that all his witnesses were necessary in support of the custom.

NOTES OF THE WEEK.

CHANCERY PRACTICE.

29

The Chancery Regulation Act, which comes into operation immediately after the present term, gives power to make General Orders, not only for carrying the provisions of the act into effect, but to improve the practice of the Court. It is suggested as highly essential to the interests of the suitors and the convenience of the Profession, that an early promulgation of the New Orders should take place. A Correspondent points out that many of such Orders will be necessary to carry the act into operation, and therefore should be prepared without delay.

We have not heard the degree of progress made in the preparation of the Orders, but expect to be enabled to furnish our readers with the earliest intelligence on the subject.

ATTORNEYS' ADMISSIONS.

Under these circumstances, for the purpose of raising the question, he allowed the plaintiff the general costs of the cause in respect of the first count, together with all his witnesses, de- We are informed that this branch of the ducting therefrom the defendant's costs of the Profession may now have their admissions pleadings only in respect of the second and delivered to them without the payment of third counts, and consequently disallowing all his witnesses.

The defendant contended, on the authority of the late rule of Court, 1 Reg. Gen. H. T. 2 W. 4. s. 74, that he is entitled to all the wit.. nesses who were called on his behalf in support of the custom.

any fee.

NOTICE AS TO EXCHEQUER OF PLEAS

TRIALS.

The causes that are entered for Monday the 11th of November (the First Sittings in Middlesex), and are not tried on that day, will be taken on Wednesday the 13th, by adjournment.

In Hilary Term last, Mr. Justice Purke, on the motion of Mr. Jervis, (K. C.) granted a rule nisi for a review, when the above report was made. On a subsequent day, his Lordship, after consulting the other Judges, directed an enlargement of the rule till Easter Term, in order that the defendant might, in the mean time, make an application to Mr. LAW LECtures at king's college and the Justice Bosanquet for an order to the associate to amend the postea, by inserting a finding of the custom in question in favour of the defend

LONDON UNI ERSITY.

The Law Lectures at both these Institutions have commenced for the winter course, as appears by the advertisements on our wrappers. Some account of their Introductory Lectures have already appeared in the public journals.

LAW LECTURES AT THE INCORPORATED
LAW SOCIETY.

Our readers are aware, from the public advertisements, that Mr. Wilde has been appointed to lecture at the Incorporated Law Society, on Conveyancing; Mr. Coleridge, on Equity; and Mr. Theobald (during

the illness of Mr. Dodd), on Common Law. | operation on the 26th instant, and a great The first lecture of the course on Convey-alteration in the present practice is anticiancing was delivered in the Society's Hall pated. on Monday evening last, the 4th November, in the presence of the Committee of Management, several hundred members of the Society, and a large class of articled clerks and others.

It has been generally supposed that the study of the law could be only pursued by reading, under the instructions of an experienced barrister, by seeing the practice at the chambers of pleaders and draftsmen, or in the offices of eminent solicitors, and by a diligent attendance of the Courts. Public lectures have been supposed of little assistance; and the experiments which have been hitherto made have laboured under the disadvantage of this prejudice. There appears now, however, an opportunity of putting the point to the test in this country, which has been tried with success on the continent and

The lecture comprised an historical view of the laws of real property, from the earliest times to the present, and more particularly of those branches which remain unaltered by the late acts of parliament; and the groundwork was laid of the practical discourses which are to follow. It appears that the subjects which will be principally considered are the following: the new Statute of Limitations, with reference more in America. particularly to the deduction and investiga- We concur, however, with the Law Protion of titles, and the time at which ab-fessor at King's College, that the attendance stracts may now commence; the rigm, of at Lectures alone will not be sufficient to Dower, the property on which it will attach, fit the student for the discharge of the du and the mode of defeating it; the alteration in the Law of Inheritance; the abolition of Fines and Recoveries, the assurances to be substituted, the barring estates tail, and conveying the interests of married women; and generally, to show in what manner the practice of conveyancing will be affected by the late alterations.

The first Equity lecture was delivered on Wednesday, the 6th of November. It was chiefly devoted to a review of the general nature, origin, and progress of the jurisdiction of the Court of Chancery, accompanied by remarks on the best method of studying the cases in which its doctrines are laid down. The Lecturer also prepared the way for the several leading subjects of Equity, which are intended to be comprised in the present course-namely, Trusts, the Administration of Assets, Specific Performance of Agreements, Discovery, and Injunction.

We are compelled to defer any notice of Mr. Theobald's lecture, which will be delivered whilst our work is at press.

ties of his Profession, without much private reading, and, if intended for the Bar, an attendance as pupil in the chambers of counsel: but altogether the young man entering the profession has great advantages. On this subject we may add the following suggestions of a Correspondent; but we cannot concur in the expediency of adopting either of them :

desideratum) emanating from such a body as "The introduction of lectures (so long a the Incorporated Law Society, cannot but be regarded as an advantage to the rising generation of lawyers, and might, in my opinion, become a greater benefit by the following alterations in their plan:-in the first place, the nounced, must, by engrossing the attention of method of delivery, which if pursued as anthe young student to three different subjects every week till the conclusion of the courses, naturally perplex and often bewilder the mind; whereas were they to commence one course and continue it every lecture-day till concluded, they would occupy no more of the student's time, and much facilitate his progress. The lateness of the hour of attendance is rather unThe establishment of these lectures at the toward. Seven o'clock is the hour appointed present juncture appears peculiarly appro- for the law lectures at the London University, priate. Almost every branch of Law and and at almost all other lectures. I reside at Practice has undergone, or is to be sub- some distance from the Hall, and night will jected immediately, to extensive alterations; necessarily be far advanced ere I can return of the effect of which in themselves, as well above remarks a weight they might not otherhome. As publicity may tend to give the as their bearing on that which remains, it is wise obtain, I trust you will give them inserof the first importance to the practitioner tion in your Journal." that he should receive the earliest exposition. The changes which have actually taken place are chiefly in the departments of Conveyancing and Common Law. Those in Chancery are now very speedily to follow. The Chancery Regulation Act comes into

Answers to Queries.- Queries.

ANSWERS TO QUERIES.

DECLARATION.-COSTS.-VOL. VI. P. 447.

W. D.

31

The plaintiff is entitled to charge for declaLaw of Property and Conveyancing. tion if prepared, on the expiration of eight COPYHOLD MORTGAGES.-VOL. VI. P. 464. days from the service of the writ, and he may Conditional surrenders of equities of redeliver the declaration, if the defendant have demption are by no means uncommon, though entered an appearance, or file it having himthe time fixed for payment of the first mort-self entered an appearance sec. stat, on the day gage has expired, and the mortgage itself has after the expiration of such eight days. been paid off. The second conditional surrender should be in the common form, inserting before the proviso the words " but subject nevertheless to a certain conditional surrender of the same premises to A. B., for securing repayment to him, his executors, administrators, er assigns, of the sum of £ with interest, on the and which conditional surrender bears date the day of and was presented at a Court holden for this manor on the day of

day of

,

A COURT HOLDER.

Practice.

COSTS OF LEASE.-SOLICITOR.-VOL. VI.
P. 463.

QUERIES.

Law of Property and Conveyancing.

DEVISE. REPUTED WIFE.

G. H. devised his copyholds to his wife Mary H., and his children, W. H., M. A. H., C. H., T.H., A. H., and C. H., to hold to them, their heirs and assigns, as tenants in common. He also gave to his wife and children all his personalty, to be equally divided; and in the event of the death of either of the children him or her so dying in such real and personal under age without lawful issue, the share of estate to be divided equally between the surviving children. The testator was in fact not married to the devisee whom he calls his wife, but she lived with him as his wife, and was called by his name for some years, and had by him the three last-mentioned children; the three first-named children were by his wife, and are legitimate; the wife died before he lived with the other. Will the latter be en

The solicitor in this case is clearly liable to refund to A. the amount of the charges for registering the assignment, and which has not been done; vide 2 G. 2. c. 23. § 23; and the form of action which I would recommend is a special action on the case on an implied as sumpsit With regard to the other part of the bill, I think that if A. can shew fraud, or that the charges are grossly exorbitant, which they appear to be, he may in that case recover back a portion of them; but I refer your corre-titled to the share of the real and personal spondent to the before-mentioned act of parliament, and to Tidd's Prac. 7th edit. vol. i. p. 96. It appears that the bill is not a taxable

one.

J. S.

CHANGE OF NAME.-VOL. VI. P. 447.

A. C. may, if he choose, drop the name
which he used under an erroneous impression,
and his doing so will not invalidate any of the
acts in which he has signed the three names.
W.D.
[See, on this subject, 1 Leg. Ob. 214.—ED.]

PRISONER. FI. FA.-VOL. VI. P. 447.
The plaintiff may, in the case mentioned by
W. C., issue a fi. fu. against the defendant's
goods.

W. D.

BODY RULES IN VACATION, P. 4. A correspondent accuses G. W. of want of ordinary information, in stating that body rules cannot be obtained in vacation as well as term, as the Judges grant orders which are made rules of Court in the following term, and attachments granted against the sheriff. In such case, of course, there is no prejudice to the plaintiff; but suppose the money to be in the hands of the sheriff's officer or of the bail, or that the defendant, rather than render (being unable to justify bail), would pay the money, what can be done during the long vacation under the present practice?

estate under the will? and will the three illegitimate children be entitled to their share; and if they are, will they not also be entitled to a proportion of the rents and profits during their minority, towards their maintenance ?

LEASE.-REPAIRS.-EJECTMENT.

J. A.

A. demises lands to B. B. is not bound by his lease to erect any buildings on the land, but he is to keep all erections that he may make in repair, and so yield them up at the end or other sooner determination of the term, B. erects a house, but leaves it unfinished, in which state it has remained a considerable time, the floors sustaining considerable injury from the weather, the window sashes being Can an ejectment be maintained against B. for not completing the house, and need any and what notice be given him to complete the same?

out.

LEASE. INSURANCE.

C. S. B.

Common Law.

MORTGAGEE.-RIGHT OF VOTING.

A. is mortgagee in fee of certain freehold property in the county of Kent: he has been in the actual receipt of the rents and profits for two or three years. Has A. the right of voting (in respect of such property) for members to serve in parliament for the county in which the property is situated? Or is the law requiring the mortgagee to be in receipt of the rents and profits seven years before he can vote in respect of it, still in force. See § 23 of the Reform Act. C. S. B.

The statement of C. S., on the practical working of County Courts, shall be noticed.

The paper of J. C., on Dower, shall have early insertion.

The statement of " a Prisoner," would be readily admitted, but for the generality of his imputations on the common law practitioners, which, we are satisfied, is totally unfounded. He should learn to distinguish between exceptions and rules. How can he know the prac tice of the majority of attorneys?

As our correspondent C. cannot cite the name of his case, we must refer our Querist to the articles in this work, on "The Law of Attorneys," in which, we believe, he will find all the cases referred to which bear on the

subject.

must again say we cannot insert Answers to A. H. D. should give his authorities. We Queries which are not thus supported.

The addition to the list of bankrupts, suggested by "a Subscriber," would increase threefold the space at present occupied by that matter; but this we are willing to do if generally required by our friends in the country. The alteration, however, is certainly not de

What course should be adopted by the exe-manded in London. cutors of a party who was surety in the usual bastardy bond to the overseers of a parish? The principal has been bankrupt, and is since dead wholly insolvent, and the executors of the surety are called upon by the parish for a weekly payment of a certain sum for the child's maintenance. It will be many years before he is fit for apprenticeship, and unless a compromise can be made it would appear that the testator's estate must be kept open on this sole account, it being impossible to say precisely what sum the executors should reserve for this liability.

THE EDITOR'S LETTER BOX.

M.

A correspondent enquires whether there is any intention of introducing a bill next session, for altering the laws relative to articled clerks, and the stamp duty payable on the articles. We believe that some alteration of mode is contemplated; but we question whether the profession will be relieved at present from the amount of their burdens-not because they are not entitled to such relief, but because the public are pressing for other and mightier reductions, which will leave the revenue too much diminished to justify the hope of a favourable consideration of the Lawyer's claims.

The remark of T. B. on our Supplements, is sufficiently answered by himself, in regard to the Gazette lists; and to those we may add, parliamentary papers and returns, new publications, and other matters of intelligence which belong to that department, though occasionally introduced at an earlier period for the benefit of our readers. Besides, our worthy Correspondent is barred by time. His suggestion is too late.

We have received a list of books for insertion in the Supplement, which shall be attended to. We observe one omission in our last number, of a new edition of a work, and will willingly make any corrections or additions that may be pointed out in time.

Some of the Queries and Answers which we received since our last, and therefore not includ ed in the acknowledgment to Correspondents, are in the hands of the printer, but for want of we have to add the following, received this room could not appear this week. To these week: from W. D.; R.; and E.

The further paper on Friendly Societies arrived too late for this week's number. It shall be considered at the first opportunity.

The Fourth Part of the Analytical Digest, which concludes the Volume for 1833, with the necessary Tables, &c. will be published on Saturday next.