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Rejection of the Executor and Trustee Bill. sary, and all the consequences of such a suit before your lordships, when they went so far would be inevitable.

as the Cape of Good Hope, and bring forward “Then, my lords, with respect to the evi. such a society as this as their battle horse dence that you have heard to day, I think it to support their measure. Mr. Macdonald has been very strongly confirmatory of the told you that the society would manage his views I have submitted to you. Také, for in-affairs at less expense than they would be stance, the evidence given by Mr. Stein. He managed if he had made a simple will. He tells your lordships that in the society which he also told your lordships that there was no inmentions at the Cape of Good Hope, there is vestigation of the accounts, nobody knew any, a distinct provision that the funds of the com- thing about the investments, except themselves, pany shall never be invested upon any security or the state of their affairs. When we come excepting land security. He says, at the outset to the next witness, Mr. Sutherland, there is of the company they kept every single trust another still more important illustration of the fund quite distinct. That is according to the way in which these companies are conducted, ordinary course, when an association starts He says he understood the terms of their deed first. They start in the most plausible and fair to be, that they might lend upon any security; manner. They perform their duty in the man- and he says, in point of fact, that they do lend ner pointed out by their charter or their trust upon security which, if Mr. Stein's evidence is deed, and everything goes on smoothly—but, correct, was altogether unauthorised. I will even with respect to this model company, what take it either way: either you have a company is done? Why, within a few years they find authorised to invest money which is not their this not a convenient mode--they mix up all money, but their cestui que trusts', upon any the trust funds together.

security whatever. Nothing can be more pre“They found it inconvenient to do that which judicial : or, taking it that Mr. Stein was was their plain duty to keep the moneys correct, and that they were not authorised to separate; they found they could make much lend, except upon landed security, we have in more by mixing it all together ; they found it this model company exactly an instance of 80 much more profitable and convenient that that which I urged as being the continual practhey undertook to guarantee every man his tice of joint-stock companies, the practice of money. What real guarantee is that? He continually deviating from what is the plain has no means of knowing what are the funds line of their duty. We find these companies of the company. Their accounts have never beginning most accurately, making proper inbeen investigated; nobody has ever seen any- vestments, but in the course of a short time dething about them except themselves, and al- parting from that, mixing up the trust funds, though they may have obtained perfectly good and lending the money upon security altogether credit for 20 years in this colony, they may at unauthorised by their constitution.' I say that this time be as perfectly insolvent as many of is an exact instance of what here will take those companies who have paid 10 or 12 per place. You will find all these companies will cent. until the moment they failed and the be bidding against each other. Although they bubble burst. Your lordships are aware of the will begin very regularly, they will depart from peculiar circumstances of the colony. Like the purposes for which they were originally the two gentlemen who came before you from constituted, and conduct their business in a that colony, they are people going backwards manner inconsistent with their Acts of Parliaand forwards from time to time, and of course ment or deeds, and also in a manner inconthey meet with great difficulties as to the settle- sistent with the proper security of their cestuis ment of their affairs. Their difficulties are so que trustent. great, that it is the established law that if a “I think I need not trouble your lordships man makes his will and appoints an executor with any observations on the evidence of Mr. or trustee, that executor or trustee has a right Headlam, or that of Mr. Wadeson. He comes to charge a larger sum than that which this not having considered the matter at all; and I company would charge, therefore, so far from use Mr. Headlam himself as an instance of a being a company to increase the amount pay- person who is willing to undertake to manage able for the execution of trusts, this company is the affairs of this company, but from his poformed to diminish the amount. But for them, sition is altogether incapable of giving that the estate would be subject to greater charges. close, constant, and personal attention which And, says Mr. Stein, I have made a bargain Sir John Patteson has described as being in, which will enable me to get my estate adminis- dispensable for the security of the public and tered at a less expense than it would otherwise of the cestuis que trustent. be administered, and also, my lords, he says, it “With reference to this company as with the is a small place, everybody knows his neigh- first, I shall submit to your lordships that they bour, therefore, the affairs. of this company are, have not made out any case that will induce in fact, managed by this board of five persons, your lordships, upon these private Bills, to very much in the same way as a common trust express an opinion-an opinion which is to would be managed by four or five trustees who be used, as your lordships have been told, may be named by the original testator. The most extensively-to be circulated through all promoters of this Bil, ably as their case has the community, and to be brought forward been conducted, must have felt they were even as a decision before the tribunals of the greatly in want of evidence of weight to bring Court of Chancery. Your lordships are asked

121

Executor and Trustee Bill.- New Statutes.-Amended Bills of Exchange Bill. to establish the legality-I must be allowed to AMENDED BILLS OF EXCHANGE use the phrase, although my learned friend,

BILL. Mr. Clark, objects--the legality of trading in trusts and making a profit of that trade; your lordships are asked to establish the limited lia

THERE seems to be some extraordinary bility of trustees and the absence of personal misapprehension regarding the effect of responsibility in those trustees; you are again, this Bill as last amended. One of our conwithout any sufficient evidence, asked in this temporaries assumes that all bills payable measure to sanction a company taking an un- in the country, when dishonoured, must be limited quantity of land, and powers to manage sent up to London to be protested. This land by means of a board of directors ; you are also asked to contradict that principle which supposes that the London notaries must wbich was laid down, as I have said, by the despatch their clerks to all parts of the Legislature, and sanctioned only yesterday by kingdom, for they cannot delegate their that decision of the Vice-Chancellor Kindersley, functions except to the clerks in their office. that a corporation is not a proper body to It appears also to be supposed that there whom to confide any trust, even although that are no notaries except in London, whereas trust may be in its nature a perpetual one, and there are several in all the principal towns. a trust which involves the necessity of applica- By the 3 & 4 Wm. 4, c. 70, the limitation tion to the Court of Chancery for the appoint; of the faculty of notaries (requiring an apment of new trustees. that, the objections are so great, that the Courts prenticeship of seven years) applies only to have always hitherto refused to appoint corpo- London and within 10 miles thereof, and rations. Your lordships are asked, upon this by the 2nd section attorneys previously enevidence, to overrule all these objections. I rolled in any of the Courts of Westminster submit po such case is made out; and that you may be admitted as notaries out of those will leave the promoters of this Bill, if they can limits,—the Master of the Court of Famake out a case for altering the law, to bring culties being expressly authorised to admit it forward in some general measure, which be opposed by much more effectual means than a sufficient number of notaries for the conI have been entitled to bring forward.”

venience and accommodation of each district.

We observe that complaint is made that NEW STATUTES EFFECTING ALTE- by the Bill, as amended, the County Courts RATIONS IN THE LAW. have no jurisdiction under the Act; but it

could scarcely be expeeted that those Courts COUNTY COURT EXTENSION ACTS

should be empowered, like the Courts at

Westminster, to determine whether execu17 VICT. c. 16.

tion should issue or not, or whether the An Act to amend the Act of the Thirteenth and defendant should be allowed to defend the

Fourteenth Victoria, Chapter Sixty-one, and action. Besides it will obviously be more the Act of the Fifteenth and Sixteenth beneficial to the public at large that there Victoria, Chapter Fifty-four.

should be one place of registering disho

[2nd June, 1854.] noured bills, instead of a registry at every 1. That the right and mode of appeal given County Court town. by the 14th section of the Act of the 13 & 14

It is further supposed that the notaryVict. c. 61, as amended by the 2nd and 31d public will conduct the business in the sections of the Act of the 15 & 16 Vict. c. 54, Registry Office in London. This is surely shall extend to all cases decided after the ing of this Act in which jurisdiction is given a mistake,-his function will cease witń by the 17th section of the said first-mentioned the protest. The office will be attached to Act in consequence of the agreement of parties; the Court of Common Pleas, the proceedbut it shall be lawful, when both parties shall ings in which are necessarily confined to desire that the decision of the County Court the attorneys of that Court. Upon the reJudge shall be final, to exclude such right of gistration the party will be entitled to an appeal, by expressing such their desire in the order of Court and judgment, with stay of mercorandum of agreement directed by the said 17th section to be filed with the clerk of the execution for six days. Court.

It is very doubtful whether the public 2. The provisions of the 18th section of the will gain anything by this alteration of the Act of the 15 & 16 Vict. c. 54, shall extend to Law. It may be a question, indeed, wheall cases of petitions for protection from process ther the expense will not be greater than made to a County Court under the provisions under the Common Law Procedure Act. of the Acts of the 5 & 6 Vict. c. 116, of the There will be,- Ist, the expense of noting 7 & 8 Vict. c. 96, and of the 10 & 11 Vict. c. the bill ; 2nd, of protesting it; 3rd, of 102, as fully as if the filing of every such per registering it in the new Office of the Comtition had been required to be registered by the 18th section of the first-recited Act.

mon Pleas; 4th, of the Judge's order ; 5th,

AMEND

MENT.

a

TIMES

OF

PROCEEDING.

PRODUCTION

122

Amended Bills of Exchange Bill.-- New Orders in Chancery. of the judgment. These expenses must be filth day of the ensuing Michaelmas Term, and incurred whether in town or country. is to expire on that day unless enlarged by There must be a professional charge for order. Provided always, that in cases where preparing the document which has to be the above-mentioned periods of 14 days and left with the registrar, and of course for at- virtue of this order, the seven days within

nine weeks respectively, shall be extended by tending him and payment of fees of office. which the plaintiff is bound to file his affidavits In the case of country bills, after they have in reply and the month during which a witness been presented, noted, and protested in the is subject to cross-examination, shall be retown where they are payable, they must be spectively taken to commence from the expirasent up to London to be registered, tion of such extended period. Wherever there is a defence to the action,

II. Any Judge of the Court whose chambers the proceedings will go forward as usual! may be open for business during any vacation, The registration of the protest will be like proceeding before the Master of the Rolls of

issue summonses for the purpose of any an interlocutory judgment. A summons any Vice-Chancellor at chambers after the before a Judge must be taken out by the vacation. detendant, supported by special affidavits, III. The same course of procedure as is now showing a prima facie gronnd of defence, in use as to the production of documents the costs of which, with the attendance be- ordered to be produced before the hearing of a fore the Judge (sometimes by pleaders or cause, shall extend and be applied to the procounsel) will be equal to the

duction of documents ordered to be produced

of

expense writ of summons and declaration.

after the hearing of any cause or matter.

IV. In all cases in which the certificate of

the Chief Clerk is to be acted upon by the NEW ORDERS IN CHANCERY.

Accountant-General of the Court without any

further order, such certificate may be signed

PRACTICE AT and adopted by the Judge on the day after the JUDGES' CHAMBERS.

of same shall have been signed by the Chief Documents.—GUARDIANS.-OFFICE CO- Clerk, unless any party, desiring to take the PIES.-TAXATIONS, &c.

opinion of the Judge thereon, obtains a sum

1st June, 1854. mons for that purpose before 12 of the clock The Right Honourable Robert Monsey, Lord on that day. And the time for applying to Cranworth, Lord High Chancellor of Great discharge or vary such certificate, when signed Britain, by and with the advice and assistance and adopted by the Judge, is to be two clear of the Right Honourable Sir John Romilly, days after the filing thereof. Master of the Rolls, the Right Honourable the V. In all cases in which any person required Lord Justice Sir James Lewis Knight Bruce, to be served with notice of a decree or order the Right Honourable the Lord Justice Sir pursuant to the eighth rule of the 42nd section George James Turner, the Honourable the of the Act 15 & 16 Vict. c. 86, may be an inVice-Chancellor Sir Richard Torin Kindersley, fant, or a person of unsound inind not found the Honourable the Vice-Chancellor Sir John so by inquisition, the notice is to be served Stuart, and the Honourable the Vice-Chancel- upon such person or persons, and in such lor Sir William Page Wood, doth hereby in manner as the Judge to whose Court the cause pursuance of the Acts 15 & 16 Vict. cc. 86, 87, is attached may direct. and in pursuance and execution of all other VI. Guardians ad litem appointed for inpowers enabling him in that behalf, order and fants, or persons of unsound mind not found direct:

so by inquisition, who shall be served with That all and every the orders, rules, and di- notice of any decree or order, are to be aprections hereinafter set forth shall henceforth pointed in like manner as guardians ad litem be, a dd for all purposes be deemed and taken to answer and defend are now appointed in to bt. General Orders and Rules of the High suits on bills filed. Court of Chancery, viz. :

VII. At any time during the proceedings at 1. If the 14 days within which, pursuant to any Judge's charbers under any decree or the Orders of the Court, a defendant is bound order, the Judge may, if he shall think fit, reto file his affidavits in answer to a motion for quire a guardian ad litem to be appointed for a decree, or the seven days within which the any infant, or person of unsound mind not plaintiff is bound to file his affidavits in reply found so by inquisition, who has been served thereto, or the nine weeks after issue joined, with notice of such decree or order. within which the evidence in any cause to be VIII. In all cases in which notice of a decree used at the hearing thereof is to be closed, or or order shall be served pursuant to the eighth the month after the expiration of such nine rule of the 42nd section of the Act of 15 & 16 weeks within which a witness who has made Vict. c. 86, the notice so served is to be enan affidavit intended to be used by any party titled in the cause, and there is to be endorsed to such cause at the hearing thereof is subject thereon a memorandum in the form or to the to cross-examination, shall expire in the Long effect following, that is to say, "Take notice, Vacation, the time for the several purposes that, from the time of the service of this notice, aforesaid respectively is hereby extended to the you [or, as the case may be, the infant, or per

New Orders in Chancery.-- Review : Pratt's Prize Courts. -Enfranch. of Copyholds. 123 son of unsound mind] will be bound by the ence to such objection, the grounds and reaproceedings in the above cause in the same sons of his decision thereon, and any special manner as if you (or, the said infant, or person facts or circumstances relating thereto. of unsound minds had been originally made a XIV. Any party who may be dissatisfied party to the suit, and that you [or, the said with the certificate of the Taxing Master as to infant, or person of unsound mind) may, by any item or part of an item which may have an order of course, have liberty to attend the been objected to as aforesaid, may apply to the proceedings under the within-mentioned de- Court by motion or petition for an order to recree or order. And that you [or, the said view the taxation as to the same, and the Court infant, or person of unsound mind] may, with may thereupon make such order as to the Court in one month after the service of this notice, shall seem just; but the certificate of the Taxapply to the Court to add to the decree or ing Master shall be final and conclusive as to order."

all matters which shall not have been objected IX. The charges for copies of pleadings, to in manner aforesaid. and other proceedings and documents fur- XV. Such motions and petitions are to be nished under the General Orders of 25th heard and determined upon the evidence which October, 1852, Order number one, sections shall have been brought in before the Taxing two, three, and four, to a person admitted to Master, and no further evidence is to be resue or defend in formâ pauperis, or to his so-ceived upon the hearing thereof, unless the licitor, by or on behalf of any other party shall Court shall otherwise direct. be at the rate of 11d. per folio. Provided always, that if such person shall become entitled to receive dives costs, the charges for

NOTICES OF NEW BOOKS. such copies shall be at the rate of 4d. per folio; and nothing shall be allowed in taxation Notes on the Principles and Practice of in respect of such charges, until such person, Prize Courts, by the late Judge Story; or his solicitor, shall have paid or tendered to with Documents and Forms in the Court the solicitor, or party hy whom such copies of Admiralty in England. Edited by were furnished, the additional 2£d. per folio.

FREDERICK Thomas Pratt, D.C.L., But this proviso shall not apply to any copy which shall have been furnished by the party

Advocate, Doctors' Commons. himself, who is directed to pay the costs, and

This publication is necessary and wellnot by his solicitor.

timed. It will be found very useful to adX. "The charges for copies furnished by a vocates and proctors and to persons interperson admitted to sue or defend in forma ested in shipping, and to the officers and pauperis, other than those furnished by his so- solicitors employed in Admiralty business licitor, sliall be at the rate of 14d. per folio.

in the out ports. XI. Expenses incurred in consequence of affidavits being prepared or settled by counsel,

The letter and paper by Lord Stowell are to be allowed only when the Taxing Mas- and Sir John Nicholl will be read with ters shall in their discretion, and on considera- great pleasure by every lawyer. tion of the special circumstances of each case, The notes of the late truly eminent Mr. think such expenses properly incurred; and in Justice Story is the only account of Prize such case they are to be at liberty to allow the Courts in our modern times; it includes all same or such parts thereof as they may con- the English and American and other cases, sider just and reasonable, whether the taxation and therefore deserves publication at this be between solicitor and client or between party time in England.

XII. Any party who may be dissatisfied with It includes, also, the Queen's declaration the allowance or disallowance by the Taxing of war with Russia, a declaration as to Master, in any bill of costs taxed hy him of the neutrals, orders in Council as to emwhole or any part of any item or items, may, bargo, &c., &c. at any time before the certificate is signed, deliver to the other party or parties interested therein, and carry in before the Master an ob

ENFRANCHISEMENT OF COPY. jection in writing to such allowance or disal

HOLDS. lowance, specifying therein, by a list in a short and concise form, the items or item, or parts or MANOR OF KENNINGTON, ETC. part thereof objected to, and may thereupon

We suhjoin a copy of the important peapply to the Master for a warrant to review the taxation in respect of the same.

tition, now in course of signature, from the XIII. Upon the application for such warrant, copyholders in this manor, for an equitable or upon the return thereof, the Taxing Master enfranchisement of their copyhold estates, is to reconsider and review his taxation upon which the lord of the manor and his officers such objection, and he may, if he shall think have at present the power, but little or no infit, receive further evidence in respect thereof; and if so required by either party, he is to state, clination, to effect. either in his certificate of taxation or by refer- We shall only notice two cases out of a host

and party.

124

Enfranchisement of Copyholds-Manor of Kennington. which no man can number, to substantiate the “That your petitioners have heard with necessity of a compulsory enfranchisement in great satisfaction, that a petition of aldermen

(including the present Lord Mayor) and livery. this manor :-

men of London to her Majesty the Queen on Arden's Case.--He bought a ground-rent of this important subject, has been referred by 601. a year issuing out of premises let for 90 years Lord Viscount Palmerston to the Lords of the from 1790. A fine of 6441. was demanded by Treasury, who have assured the petitioners the officers of the duchy, who subsequently pro- copyholds held of the Crown, is now under

that the subject of such petition, as regards posed to reduce it to 2351. if paid before next their lordships' consideration. Court, that is nearly four years' fine, the ori- “That the Commissioners appointed by his ginal demand being a fine of 10 years.

late Majesty King William the 4th, to inquire Sawyer's Case.- He purchased a ground-rent perty, reported, after full inquiry and mature

into the Law of England, as to the Real Proof 81. 10s. on a lease granted in pursuance of a deliberation, that the laws and customs relating licence from June, 1796. The fine anterior to to copyholds, from their great variety and unand during the reign of Wm. the 4th would certainty, as well as their unsuitableness to the have been 171., but a fine of 1471. was demanded, present state of society, were the cause of much

litigation and extortion; that from the interof which 277.5s. was afterwards returned, retain- mixture of such lands with those of freehold ing 1191. 158., a sum equal to 12 years' income, tenure much needless expense and difficulty, in -thus depriving the party out of 12 years' | the transactions relating to the sale, settlement, rent of the 14 years unexpired of the lease.

or disposition of real property were occasioned ;

and, as a still greater evil, that such laws and To illustrate the absurdity and injustice directly interfered with the profitable enjoy:

, of demanding a compensation for enfran- ment of the soil, and materially diminished the chisement on the rack-rent instead of the public wealth; for which reasons the Commisground-rent, which alone is received by the sioners gave it as their opinion, that on com, copyholder, it may be stated that a ground - pensation to the lords, an abolition of copyhold rent of 10 houses, at 51. each, amounts to 50l. selves and the tenants.

laws would be for the benefit of both thema year, and the rack-rent, receirable by the “That a Select Committee of your honourbuilder, amounts to, say, 5001. a year; the able House was appointed on the 27th day of compensation, therefore, for enfranchisement, July, 1838, to consider of the enfranchisement based on the full annual value or rack-rent

of copyholds, and to report their opinion there

on. That such Committee on a resolution would amount to 3,0001., almost the full value moved by the late Sir Robert Peel, did accordof the entire property.

ingly report that they were satisfied that copyTo the Honourable the Commons of Great hold tenure was ill adapted to the wants of the

Britain and Ireland in Parliament as present day and a blot on the judicial system of sembled.

the country—that the peculiarities and inci“ The humble petition of the undersigned Copy- venient

to the owners of the land and prejudicial

dents of copyholds were at once highly inconholders of the Manor of Kennington, in the to the general interests of the State ;-that parish of Lambeth, in the county of where the fine payable to the lord is upon the Surrey.

improved value, it operates as a tax upon the “Sheweth,—That the said manor of Ken- capital of the copyholders, and is a direct check nington is part of the possessions of the Duchy to all building and all agricultural improveof Cornwall, and that His Royal Highness the ments; and after detailing other disadvantages Prince of Wales, as Duke of Cornwall, is lord of and objections, the Committee stated they had the manor in right of the said duchy. come to the conclusion that the abolition of

“That your petitioners are respectively copy copyhold tenure would not only be a great pubhold tenants of the said manor, holding lands lic benefit, but should be made, if possible

, a of inheritance parcel of the same to them and national object ; and they recommended that it their heirs by copy of court roll, according should be effected under the Commissioners to the custom thereof.

for the Commutation of Tithes. “That for a very long period, dating back "That a second Select Committee of your even to the time of the great Lord Bacon and honourable House was appointed in the year Sir Edward Coke, the most eminent lawyers, 1851, to consider the same important subject ; statesmen, and political economists, including who adopted similar views to those of the for(along with the two high authorities referred mer Committee, and reported that it was highly to) the Lord Keeper Guilford, the Lord Chan- desirable for the interests of the lords, the copycellor Cowper, Archdeacon Paley, the late Sir holders, and the public—that the entire enfranRobert Peel, Bart.,

Lord Brougham, and the chisement of copyhold tenures should be effected present Lord High Chancellor, and Lord Chief as soon as practicable on equitable terms, due Justice of England, have in the strongest terms regard being had to the rights and just claims pointed out the evils and enforced the necessity of all parties. The great advantage and utility of the abolition of copyhold tenures.

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