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PRELIMINARY ADVERTISEMENT.

EMPIRE ASSURANCE COMPANY,

FOR LIVES, ANNUITIES, SURVIVORSHIPS, ENDOWMENTS, &c.

. (Provisionally Registered under 7 & 8 Vict. cap. 110). CAPITAL £100,000, IN 20,000 SHARES OF £5 EACH-DEPOSIT, £1 PER SHARE. CHIEF OFFICE—41, PALL MALL, LONDON.

DIRECTORS. JOHN EDWARDS BENNETT, Esq., South Villa, Tulse Hill.

JASPER W. JOHNS, Esq., Crooked Lane, Cannon Street. LIEUT. COL. PROBY T. CAUTLEY, K.C.B., F.R.S., 23, Jermyn CAPTAIN ROBERT GUTHRIE MACGREGOR, 67, Gloucester Street, St. James's.

Place. Portman Square. DANIEL THOMAS EVANS, Esq., 5, Elm Court, Temple.

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HENRY THOMPSON, Esq., P.R.C.S., M.B., 16, Wimpole Street, Cavendish Square.
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BANKERS. -THE LONDON JOINT-STOCK BANK, 69, Pall Mall.

ACTUARY AND SECRETARY. EDWIN H. GALSWORTHY, Esq., F.S.S.
FEATURES OF THE COMPANY.
AGENTS.

QUALIFICATION FOR DIRECTOR. First, the Agents of this Company will be entitled, beyond the ordi. Every Director will pay down £500 at least on shares immediately nary commissions, to a direct and substantial interest in the realised upon the complete registration of the Company. profits. This important feature is expressly provided for under the Com

BUSINESS pany's Deed of Settlement, and will be extended to all

The Business of this Company will include the granting of Assurances Solicitors, Medical-men, and officially-appointed on Lives and Survivorships, Annuities and

Endowments; also the PerAgents.

chase of Reversions, Loans on Securities, &c., and will be fully set forth Second, a provision has likewise been made to remunerate out of rea

in the detailed Prospectuses. lised profits

AGENCIES Those Persons who may introduce Agents to

Applications for Agencies and the remaining Shares are requested to the Company

be made to the Secretary at the Chief Office.

The preliminary Prospectuses, detailing the Plan and Principles of the CAPITAL

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This day is published, 8vo., 258. cloth, in a Country Town in the West of England, a MANAGING CLERK, competent to prepare ordinary deeds, to abstract, and who is A

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the Examiners of Petitions for Private Bills in both Houses, and Taxing looked on as an indispensable qualification. Apply by letter, stating

Officer of the House of Commons. CONTENTS.-Book I. Constitution, references, salary, &c., to B. B. C., at Mr. Showler's, Law Stationer,

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London : Butterworths, 7, Fleet-street, Law Publishers to the Queen's

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Now ready, price 58., Third Edition of Part 3 of the This day is published, in royal 8vo., price 11. 118. 6d. boards,

TREATISE on INDUSTRIAL INVESTMENT and

EMIGRATION; being Suggestions for the Enfranchisement and the Orders connected with them. The Second Edition, adapted the Application of the Life Assurance Principle; with Rules and Tables to the present Practice; with Practical Noter. By W. H. HARRISON, for the formation of Copyhold Enfranchisement and Freehold Land Esq., Barrister at Law, and R. H. LEACH, Esq., one of the Registrars Societies, and a Mathematical Appendix. By ARTHUR SCRATCHof the Court.

LEY, M. A., F. R. A. S., Actuary to the Western Life Assurance Society, Stevens & Norton, Law Publishers, 26, Bell-yard, Lincoln's-inn.

3, Parliament-street, Westminster. Just published, price 18.,

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CAUTION.
of " Ayres, Secretary to the Eastern Union Company, v. Wason." Ву
RIGBY WASON.
London: Longman & Co.

that some unprincipled person or persons have for some time past been The 16th Edition, corrected and extended, with the Statutes and imposing upon the public by selling to the Trade and others a spurions

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Middlesex.-Saturday, December 9, 1854.

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TOFTRÆRS, SC. Whereas it has lately come

to my knowledge

:

No.936_Vol. XVIII.

DECEMBER 16, 1854.

PRICE ls.

NAMES OF THE CASES REPORTED IN THIS NUMBER.
VICE-CHANCELLOR KINDERSLEY's Court.

COURT OF Queen's Bench (Continued).
Smith v. Smith.-(Trustee Act-Vesting) ........ 1047 Reg. v. The Derbyshire, Staffordshire, and Worcester-

shire Junction Railway Company.-(Railway ComVICE-CHANCELLOR STUART's Court.

pany-Elegit against the Company-Execution Powdrell o. Jones.- (Administration - Articles of

against Shareholders-Companies Clauses Con. Partnership-Penal Sum-Specialty Creditor

solidation Act, 8 & 9 Vict. c. 16, s. 36-Man. Partnership Accounts-Marriage Settlement, Ex

damus- Register of Shareholders-Inspectionchange of Estate subject to-Substitution - Cove.

Amendment of Writ)

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mitment- Conviction--16 847 Vict. c. 30, s. 1) 1055 VICE-CHANCELLOR Wood's COURT.

COURT OP Common PLEAS. Bones o. Angier.-(Practice-Substituted Service in

Lloyd v. Davies.-(Will and Codicil-Construction a Mortgagee's Suit)

1050
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1056 Pennall v. Brown.-(Practice-Evidence)

1051

COURT OF EXCHEQUER.
COURT OF Queen's BENCH.

Grayson v. Andrews.-(17 & 18 Vict. c. 125, 8. 33–

Stating Grounds in Rule for new Trial, &c.Reg. v. Jarvis.—(Inspectors of Weights and Mea.

Amendment)

1057 sures - Appointment without Salary — 5 & 6

Crown Cases RESERVED.
Will. 4, c. 63–Superintendents of Police-2 & 3
Vict. c. 93—Jurisdiction of Sessions)..

1051 Reg. v. Robins.-(Larceny-False Pretences)...... 1058 Reg. o. Sturge. — (Indictment - Footway Misde.

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1052

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nity for Cross-examination)....

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- Married Woman)..

1059 - Church Building Acts, 58 Geo. 3, c. 45, and

PREROGATIVE COURT. 59 Geo. 3, c. 134, 8. 24)

1052 Drewe o. Long.-(Administration Bond-Assignees) 1060

LONDON, DECEMBER 16, 1854.

act, have been so clearly pointed out by the Common

law Commissioners in their Second Report, where It has been, perhaps, too hastily assumed that the these improvements are recommended, that we cannot powers heretofore exercised by Courts of equity in do better than briefly refer to some" passages in that decreeing specific performance of contracts have been Report. conferred, by the Procedure Act of 1854, upon the “. It is true,' say the Commissioners, that, besides Courts of common law. The learned Commissioners, the proceeding by action at law, there exists, in cases upon whose Report the bill was originally framed, had where a public inconvenience or private wrong is occarecommended this great innovation, and by many* it sioned by the omission of a public or official duty, or was taken for granted that it was expressed by the 68th one imposed by act of Parliament for the benefit of insection of the statute, whereby the plaintiff in an action dividuals, and no sufficient remedy is afforded by action may claim a writ of mandamus “commanding the de- for damages, a process, by writ of mandamus, to compel fendant to fulfil any duty in the fulfilment of which the performance of the particular duty. This proceedthe plaintiff is personally interested.”

ing is not common to all the Courts, but peculiar to the The observations, however, of Messrs. Holland & Court of Queen's Bench; and it appears to have been Chandless, in their able edition of the statutet, tend originally confined in its operation to a very limited forcibly to shew that this section will have a much class of cases affecting the administration of public more limited operation. The whole of their note (pp. affairs, such as the election of corporate officers, the 243—246) upon this important subject is worth tran- restoration of officers improperly removed, the comscribing, but we must content ourselves with presenting pelling inferior courts to proceed with matters within a portion of it to our readers.

their jurisdiction, or public officers to perform duties “ The former state of the law of mandamus,” they imposed upon them by common law or by statute, as say, “ with its defects, and the object and bearing of to make a rate, and the like; and there can be little the improvements intended to be carried out by this doubt that the extreme hardship arising out of the de

fect in the law which we have pointed out was one * Among others by the writer of two articles in The Jurist, considerable motive for the extension of the remedy, in ante, pp. 409, 441).

more recent times, to cases in which the rights of pri+ The Common-law Procedure Act, 1854; with Treatises vate individuals only were concerned. In the course of in Injunction and Relief.” It also contains a Treatise on Inpection and Discovery, by C. E. Pollock, Esq., Barrister at modern legislation no session of Parliament occurs in Law.

which a great number of acts of Parliament de ne pas Vol. XVIII.

á

W W

IU

for making railways, forming docks, building bridges, machinery of an ordinary action is to be applied to improving towns, and an infinite variety of public such proceedings. works, for the most part to be done by joint-stock cor

“ There is, further, a new provision in sect. 74, em. porations or companies for the benefit of the share- powering the Court, besides or instead of proceeding by holders. In almost every act of this kind numerous tiff or some other person at the expense of the defend

attachment, to cause the work to be done by the plain provisions are to be found which direct that the com- ant. . .. pany shall do certain works for the benefit of indi- “By sect. 68 it is provided, that the plaintiff it viduals, such as making communications between lands any action in any superior court, except replevin and intersected by works authorised by the acts, substituting ejectment, may proceed for a mandamus. On reading new buildings for others which have been necessarily first sight that the mandamus could only be claimed

the words, in any action,' &c., it might appear a removed, making roads and communications in lieu of when an action was pending for some cause besides the old ones blocked up or injured, and a variety of other omission to perform the act sought to be compelled works of a similar character. In the event of non- that is, that no writ could be issued solely for the pur compliance with these enactments, as, indeed, in all pose of claiming a mandamus. But looking to the cases where the proceeding by mandamus must be re

provision enabling the plaintiff in his declaration to sorted to, the remedy is uncertain, tedious, and ex- that in many cases no other ground of action would

claim the writ separately, if necessary, and to the fac pensive.

exist, it is apprehended that such a construction would 66 In any case where a party has such an interest in not be put upon the words of this section.” the issuing of a mandamus as to be able to maintain an In the New Rules and Forms just issued, (Reg action for damages in case of a false return, or, in other Gen., Mich. Vac., 1854), we observe, that although words, wherever any person is interested as a private (Rule 36), there is no form applicable to the writ of

form of indorsement for a writ of injunction is given individual in the performance of any act which may mandamus. Perhaps the learned judges were unwill. be enforced by mandamus, the latter writ is as much ing to put a construction upon this class of section ex debito justitiæ as the writ by which, after so much until compelled to do so. expense and delay, he may now recover damages for a In connexion with the subject which we have been false return.' (Second Report, p. 41).

considering, reference may be made to a decision of the “We now proceed to consider the language of the Court of Exchequer, (The Mines Royal Societies v sections in this act; and, first, it may be observed gene- section of the statute as authorising an equitable de

Magnay, 18 Jur., part 1, p. 1028), construing the 83rd rally, that no change has been made in the law of fence to be pleaded at law, only where the facts pleaded mandamus, but solely in the proceedings to obtain the are such as would entitle' the defendant to a perpetual writ.

injunction in equity to restrain the action. “The question will probably be raised, whether, under

The defendant sought to plead, “for defence on sect. 68, the Courts have practically the power of en- lease for non-payment of rent and non-repair, an agree

equitable grounds,” to an action by his landlord on a forcing the specific performance of any contract; but it is ment between the plaintiff and the defendant that the submitted that no such power is given, and that the latter should surrender the tenancy by yielding up that words. duty in which' &c. do not include duties result- portion of the premises which was in his own occupa ing from express private contracts between two parties, tion, and allowing the plaintiff to receive the rents and and for breach of which an action of tort lies, (see profits of the remainder occupied by the tenants of the Boorman v. Brown, 3 Q. B. 511), but is confined to defendant; that the defendant should pay to the plaintif another class of cases, where a private wrong is occa- a certain sum, and relinquish to him machinery on the sioned by the non-fulfilment of some public or official premises; and that the lease and counterpart should duty, or one imposed by act of Parliament for the be delivered up to be cancelled; with an averment of benefit of individuals; as, for instance, where a private performance on the part of the defendant, and that company, which has the option of taking land, gives a the action was brought in fraud of such agreement, and notice under an act of Parliament to treat. This would that it was entirely the plaintiff's fault that the sur be held a declaration of their option to take, and a con- render was not completed. Parke, B., said, " I take tract of purchase, of which the Court would compel it that a defence on equitable grounds, under this specific performance. (See per Patteson, J., in Reg. v. statute, means that which in a court of equity would The Commissioners of Woods and Forests, 15 Q. B. 74). of itself be an actual and complete answer to the

“ In confirmation of this view, we may refer to the case of the other side, so as to afford ground for a perReport of the Commissioners above cited; and further petual injunction. Now, you could not, in the present mention, that a clause expressly empowering Courts state of things, have a perpetual injunction to prevent of law to grant specific performance of contracts was the plaintiff going on with this action, because it is a struck out of this act in the House of Lords, on the principle, that he who applies for equity must do ground that it would not be advisable to give the equity. A Court of equity would not prohibit the Court such a power. The right, therefore, sought to plaintiffs in this case from suing, except on condition of be enforced, and the duty, in the fulfilment of which the defendant executing a legal surrender of the lease, the plaintiff is personally interested,' remain the same; which it would accordingly compel him to do on the the same demand and refusal are necessary before com- one hand, and stay the action on the other. But wa mencing the action under the sections as were heretofore cannot do that, for Courts of common law have not required before moving for the rule for & writ of man- the machinery for the purpose. The statute does not damus: and the discretion of the Court in granting or say that Courts of common law shall give relief on withholding the mandamus has been carefully pre- equitable conditions, but that a plea may be allowed served by sect. 71, which empowers the Court, if it which discloses a defence on equitable grounds.” Re shall see fit,' to issue the peremptory writ. The novel ference was also made by the Court to sect. 86, whereby ties introduced are, that the proceedings for a man- it is provided, that if the equitable plea or replica damus to enforce the performance of a duty in which tion cannot be dealt with by a Court of law, so as to do an individual is personally concerned may be com- justice between the parties," it may be struck out; and menced in any of the superior courts, and that the the Court refused to allow the plea.

ADMIRALTY PRIZE COURT.

21. Ditto, ditto, if exceeding ten, but not exceeding
twenty

0 10 0 854, and made in pursuance of the stat. 17 & 18 Vict. 23. Ditto, ditto, if exceeding fifty, but not exceeding By an Order in Council, dated the 11th December, 22. Ditto, ditto, if exceeding twenty, but not exceed.

0 15 0 78, intituled “ The Admiralty Court Act, 1854,” it

one hundred ....

1 0 0 s ordered, that from and after the 1st January, 1855, 24. Ditto, ditto, if exceeding one hundred, for every nd until her Majesty shall be pleased otherwise to

fifty, or part thereof, additional

0 10 0 lirect, the fees in the annexed schedule, marked from 25. Monition, decree, commission, or requisition 1 0 0 No. 1 to No. 73 inclusive, shall be substituted in lieu 26. Compulsory or subpoena

0 10 0 f the fees now payable to the judge, registrar, mer- 27. Attachment ..

1 0 0 hants, and marshal of the High Court of Admiralty 28. Marshal executing any monition, decree, comf England, and which, under the provisions of the act pulsory, or attachment, or arresting proceeds or f the 3 & 4 Vict. c. 66, are now carried to the Fee freight, if in the profession ....

0 5 0 und of the said court.

29. Ditto, ditto, if on the Royal Exchange, exclusive

of a charge of 11. ls. by the Royal Exchange And her Majesty is further pleased, by and with the dvice of her Privy Council, to order, and it is hereby 30. Ditto, ditto, if out of the profession, but within

authorities...

0 10 0 rdered, that all the said fees, numbered from No. 1

five miles of Doctors' Commons, including exNo. 73 inclusive, shall, from the day aforesaid, be

penses

1 0 0 ollected by means of stamps, whether adhesive or 31. Ditto, ditto, if beyond five miles, besides 18. per fixed, and under such regulations as the judge of the mile travelling expenses, per day

2 0 0 aid court shall direct.

32. Marshal executing decree of unlivery, of apAnd her Majesty is also further pleased to order, praisement, or of sale, attending, appointing, nd it is hereby ordered, that the fees in the annexed and swearing appraiser, or delivering a ship and chedule, marked from No. 74 to No. 76 inclusive, stores to the purchaser, agreeably to the inven. hall, from the said 1st January, 1855, be payable

tory, if within five miles of Doctors' Commons 1 0 0 o the Seal Keeper of the said court, in lieu of the fees 33. If beyond that distance, besides 18. per mile for low payable to him in respect of that office.

travelling expenses, per day....

2 0 0 And her Majesty is also pleased to order, and it is 34. Marshal attending unlivery of cargo, or sale fof

ship or goods by auction, besides travelling ereby ordered, that in lieu of the fees now payable to he crier of the said court, there shall, from the day 35. Letter to the Trinity House, or to any Govern

expenses, if in the country, per day ..... 2 0 0 foresaid, be payable to him a uniform fee of 58. on

ment office, or to any person, if at the request of very interlocutory decree, sentence, or motion in court,

only one party in the cause, including messenger 0 10 0 o be paid by the party in whose favour such decree or 36. Ditto, ditto, if at the request of both parties in entence has been given, or by whom such motion has the cause, to each party

0 5 0 een made.

37. Setting out the proceedings in a cause or motion, Whereof the judge, registrar, and other officers of from each party thereto

0 5 0 he said court, the Commissioners of Inland Revenue, 38. Primum decretum

1 0 0 nd all others whom it may concern, are to take notice, 39. Interlocutory decree or sentence, from each party 1 0 0 nd to govern themselves accordingly.

40. Office copy of any document in the English lanWm. L. BATHURST.

guage, per sheet, not exceeding ten folios .... 0 5 0

41. Office copy of papers in a foreign language, or of TABLE OF THE FEES

short-hand writer's transcript of notes, or of 'O BE RECEIVED IN THE High Court OF ADMIRALTY OF abstract or translations made in the registry, ENGLAND IN INSTANCE AND PRIZE PROCEEDINGS.

(besides the charges of the copyist, short-hand

writer, or translator, to be paid by the person lees payable to the Fee Fund, including those of the Judge, on whose behalf the same is made), per sheet, Registrar, Merchants, and Marshal. £ 8. d.

not exceeding ten folios ...

0 10 0 1. Entering action

0 5 0 42. Exemplification of a sentence or other matter, 2. Subducting action

0 2 6 including the cost of parchment or paper, per 3. Warrant of arrest

0 10 0 skin or sheet, not exceeding twenty-five folios 2 0 0 1. Entering caveat against issue of warrant 0 2 6 43. Fee on reference to be paid by the party apply5. Marshal arresting a vessel, or vessel and goods,

ing for the same

5 5 0 if in London or in the river Thames and above

44. Merchant's fee on reference, each merchant, to Blackwall ....

1 0 0 be paid by the party applying for the same.... 5 5 0 1. Ditto, ditto, if at or below Blackwall

2 0 0 45. In reference cases of small value, half fees. 1. Ditto, ditto, at any outport, if effected by a sub.

46. In reference cases of great intricacy, double fees. stitute of the marshal ..

2 0 0 | 47. Drawing and ingrossing report, and schedule an3. Ditto, ditto, at any outport, if required to attend

nexed thereto

.... 1 0 0 personally, besides travelling expenses, per day 2 0 0 48. Taxing bill of costs, per sheet, not exceeding ten 1. Possession of a vessel, or vessel and cargo, for

folios, from each party ..

05 0 a day and a night, exclusive of any sum that

49. Ditto, ditto, if only one party

0 10 0 may be paid to a shipkeeper, should such be

50. Search of records, if by a proctor, by a party in a required... 0 2 6 pending cause, or by a seaman..

Nil. 1. Marshal inquiring and certifying the sufficiency

51. By any person other than a proctor, if the cause of sureties...

0 10 0 has been terminated within the last five years.. 0 2 6 l. Bail bond.... 0 7 6 52. If beyond that time....

0 5 0 .. Affidavit of justification

0 2 653. Attendance at the Bank to receive dividends, 1. Release....

0 5 0 transfer, sell, or purchase stock or Exchequer b. Supersedeas..

0 Bills, or convert bills of exchange for suitors .. 1 0 0 1. Restitution of vessel and goods

10 0 54. Attendance out of the profession, besides ls. per 1. Minute in court 0 2 6 mile for travelling expenses, per day

1 0 0 Minute in chambers, including registrar's at

55. Entering caveat in the ledger....

0 2 6 tendance 05 056. Subducting the same

0 2 6 1. Examination of a witness in open court 0 10 057. Receipt for original documents, or for money ·

2 6 1. Filing any plea, proof, or other document, save

58. Poundage on money paid out of the registry, or an exhibit ...

0 5 0 on proceeds paid to the Naval Prize Account, 1. Filing exhibits, if not exceeding ten, for each

0 for every sum not exceeding 501.

0 5 exhibit

01 01 59. For every sum above 501. and not exceeding 1001. 0 10 0

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