Superior Courts:-King's Bench Practice Court; Exchequer.

13

mously of opinion, that the decree of the Court below should be affirmed.

Smyth v. Latham, in the Court of Exchequer Chamber at Westminster, April 23, 1833.

King's Bench Practice Court.

INTERPLEADER ACT.

Where process is issued out of different Courts, and directed to the same sheriff, the latter must apply for relief under the Interpleader Act, to the respective Courts out of which the process issues.

that, when that Court was possessed of it, the judgment creditors under the other writs might be called before the Court, as persons laying claim to the goods, according to the words of

the act.

nal sum, if the duties performed were merely | nominal. How much more consistent was it, to allow them to deprive them altogether, when no longer of use, than to continue officers without real duties or salaries annexed? It was objected to this construction, that the general power given by the act contemplated an establishment for the permanent payment of Exchequer bills, and that the Commissioners had power to select proper persons for the office, but not to remove them. The Commissioners, it is true, have the power to select, but it did not follow that the officers so selected were to hold the appointment for life. Besides, the performance of the office itself, Barstow, for the sheriff of Dorset, moved did not imply the performance of it by for the usual rule under the Interpleader Act. any one individual during life. It was also He made it a part of his motion, that the rule contended, that, as the words of the 11th should include the execution creditor in the section contained no power of dismissal, no Common Pleas cause, so as to save the sheriff such power could be exercised. The an- the expense of a separate application to that swer to that was plain: That section had re- Court. He admitted that the practice was for ference only to the duties of the officers while the Sheriff, when he had writs against the same in office. Another point made in the argu- defendant, issuing out of several Courts, to ment in this matter, was, that the terms of the apply separately to each Court; but he subact were doubtful, construed by analogy with mitted that either Court might entertain the other acts, in which, when the legislature in-subject-matter of the different claims; and tended that there should be a power of dismissal, such power was expressly reserved. That argument might prevail when the terms of an act were doubtful or obscure; but here they were clear, and free from all doubt: and even where such power was reserved, it was Patteson, J.-It certainly is a point of congenerally unnecessary, but inserted pro ma-siderable importance to sheriffs; but I do not jore cautela. Upon all these grounds, there-think they can be relieved in the way you sugfore, the first exception must be overruled. The second exception was, with respect to the occasion to consider whether the act applied gest. I know my brother Parke, last terin, had construction of a deed-poll, which, it was conto cases of conflicting executions; and he tended, gave a freehold interest in an office. thought it did not. You must take your rule The instrument of appointment here was not only in the King's Bench causes; and must a deed-poll, no more than an award was. When apply by a separate motion to the Common the Commissioners were empowered by the act Pleas, in the cause in that Court. to constitute Paymasters, the putting their seals to the appointment did not give it the effect of a deed-poll. The third exception was, that if the appointment of the plaintiff in 1811 gave office during pleasure only, still the appointment of the defendant in 1824, containing no revocation of the appointment of plaintiff, did not operate to that effect; but when there was a subsequent appointment of an office in place of another, the case bore so close an analogy to a tenancy at will, as to make it difficult to maintain that the new appointment was not a virtual revocation of the former. The fourth exception went upon the ground that the Commissioners having stated that the plaintiff had resigned the office, and that not being proved, the subsequent appointment did take effect. The answer to that argument was, that it was not necessary to prove the resignation; and that the appointment of a successor was sufficient notice to the plaintiff that he was not continued in office. To the fifth objection, which was on like ground, it may be answered, that the fact of the resignation of the plaintiff was not material to the issue in this case. The will of the Commissioners was sufficiently indicated Archbold.-Our object is to charge Smith by the appointment of a successor. Upon with a declaration. We do not want to change these grounds, they (the Judges) were unani-the custody. The other, whom we have served,

Rule accordingly.-Bragg v. Hopkins, and Wills v. Hopkins, in the King's Bench; and Wills v. Hopkins, in the Common Pleas, April 19, 1833. K. B. P. C.

Exchequer.

PRISONER.-CHARGING WITH A DECLARation. Where one of tiro defendants was in custody on a criminal charge, the Court allowed him to be brought up to be charged with a declaration.

ad res

Archbold applied for a habeas corpus pondendum to bring up a defendant who was in the custody of the Marshal in this action, and also in another action in the King's Bench, and in criminal custody under a Judge's warrant. This action was against two defendants, one of whom had been served, and the other arrested on a capias.

Bayley, B., suggested, that under the new process act, he might have a writ of retainer against him.

14

Superior Courts: Exchequer.-Notes of the Week.

we cannot serve again; and if we charge this
one with a declaration, we can declare against
the other, who has not appeared.
Bayley, B.-You take
may
your rule.
Rule granted.-Williams v. Smith and an-
other, H. T. 1833. Exch.

NEW TRIAL.

Where a party is entitled to move for a new trial, as a matter of right, the Court cannot limit the enquiry to one particular point, but must grant it generally.

will be the proper course of proceeding.
The Bill contains many useful provisions;
others be added, to render it still more
may
beneficial, and the objectionable or imper-
fect clauses may be modified and improved.

We think it would greatly expedite Chancery proceedings, if the Common Law practice were adopted, of the solicitors delivering to each other copies of the pleadings, for the accuracy of which they should be responsible. The defendant's time to answer should then be reckoned from the delivery of the copy of the bill to his solicitor, and the time for filing a replication calcu

In trespass, for breaking and entering the plaintiff's house and turning him out of possession, the jury gave 10007. damages, which was in fact the full value of the plaintiff's in-lated from the delivery of a copy of the terest in the house. Upon a motion for a new trial on several grounds, the Court expressing an opinion that there must be a new trial on the ground of excessive damages

Hutchinson, for the plaintiff, contended, that the new trial ought to be confined to that point; but

answer. At Common Law, 4d. per folio of seventy-two words is allowed the attorney; but in Chancery, as the folio is ninety words, and there is usually great delay in the payment of costs, the charge should be 6d. per folio. The Clerk in Court at present receives 10d.

Per Curiam-We can't do that. Where it is matter of right to have a new trial, the Court With respect to Writs, it would much cannot confine or limit the enquiry: when it is expedite business if the Solicitor were to matter of indulgence only, they may. prepare them, and the duty of the Filacer Rule absolute generally.-Mahoney v. Fra-be confined to stamping them with an offiser, H. T. 1833. Exch.

cial seal, as in the Common Law Courts.

NOTES OF THE WEEK.

House of Lords.

LOCAL JURISDICTIONS.

The second reading of this Bill has not yet been fixed. It is reported in the daily journals, but does not appear by the Votes of the House, that the Lord Chancellor moved on Tuesday for a copy of the Report of the Common Law Commissioners, and stated that he wished to postpone the second reading of the Bill until the Report, which was very important, was laid before their Lordships.

Several Petitions have been presented against the Bill, from places where there are Courts of Requests having jurisdiction to the extent of 51., and which the Bill is intended to abolish. The inhabitants of Hull, Kidderminster, Manchester, Liverpool, and, we believe, other large towns, (where the Local Courts would be most useful, if useful at all,) protest against the alteration.

REAL PROPERTY REPORTS.

It appears by the Votes, that an address has been moved for the Third and Fourth Reports by the Commissioners respecting Real Property. We do not understand how this occurs : the Third Report was printed last August; and a verbatim copy is contained in our Record or Supplement for that month. The Fourth Report appears to be just presented, and we shall lay it before our readers as soon as printed. It relates to Wills.

House of Commons.

GENERAL REGISTRY OF DEEDS.

The motion for bringing in this Bill has been deferred till Wednesday the 8th of May. How is it that no effort is made (as we pointed out long ago) to try the experiment of improving the Middlesex Registry? The plan of Local Courts, if carried, is only to be tried in two counties; but the General Registry, an equally, if not more dangerous measure, is at once to come into operation over the whole kingdom. Certainly as much caution is needed in altering the Law of Real Property, and establishing an Notice has been given of a motion to re-additional and compulsory mode of conveyfer this Bill to a Select Committee. This ance, and a new test of the validity of titles,

COURT OF CHANCERY REGULATIONS.

This Bill has been reprinted, as amended therefore attempted a solution of the whole question. in the Committee.

16

Answers to Queries.—Queries.—Editor's Letter Box.

not have been entitled to dower. See Coke Litt. 2 b. and note 1. and 31 B.

2. This depends on the 1st; and if the lution of that question be right, the Crown would not on office found take any estate.

3. The distress is incident to the reversion; Coke Litt. 143 a, 150 b; and as the reversion is in the wife only, the distress, it seems, must be in her name.

BUILDINGS.-FIXTURES.

A lease of a piece of ground contains a coso-venant" during the term, to repair and keep in repair the piece of ground, with the appurtenances, and all fences and ditches thereto belonging, and the same being so well and sufficiently repaired, &c. he the said [lessee], shall, at the end or sooner determination of the said term, surrender and yield up the same unto &c. in as good plight and condition as the same now are. At the time the lease was granted, there was no building of any kind on the ground demised; but the lessee afterwards erected a building, with a brick foundation, and sheds, for the purposes of his trade. Before the expiration of the term, he caused the buildings to be pulled down, and the materials carried away :-Is the lessee bound to yield up the buildings, together with the demised ground, at the end of the term? and if so, what form of action is sustainable by the lessors?

4. The demise must be in the name of the wife; for the husband has no interest in the land: and upon principle it is held, that an alien cannot maintain a mixed action, which an ejectment is. See Coke Litt. 129 b.

Law of Property and Conveyancing.
LEGACY.-NOTES. VOL. V. P. 484.

1. The bank notes, being quasi cash, would pass under the bequest mentioned by A Student." Flemming v. Brook, 1 Scho. & Lef. 318. Stuart v. Marquis of Bute, 11 Ves. jun. 662. But promissory notes would not pass by that bequest, as they are choses in action, and have no locality. See Chitty on Bills of Exchange and Promissory Notes, 4th ed. p. 2.

J. S.

2. It was decided in the case of Gray v. Cooke, by the Vice-Chancellor (Feb. 1833), that bank notes in a drawer will not pass to a legatee under the general words "furniture, goods, and chattels," in a will. In the present case, however, as the words of the bequest are much more comprehensive, and so strong as apparently to leave no doubt, it would perhaps be held, that bank notes, &o. so found would F. pass to B.

Practice.

STATUTE OF LIMITATIONS.-NOTE.
VOL. V. P. 484.

J. L.

Law of Property and Conveyancing.

COPYHOLDS.

Is a custom for a feme covert to surrender her copyhold lands, without her husband's consent, good? JUVENIS.

EJECTMENT.

Does ejectment lie for dower which has not been assigned? JUVENIS.

WILL-CONSTRUCTION.

H. M. by his will gives to his wife M. M. one-third part of his estate and effects; to his daughter C. M. one-third part of his estate, to be paid to her at twenty-one; and to his daughter E. M. the last third-part of his estate, to be paid to her at twenty-one: "Item, his The holder of the note of hand is precluded will was, that if any one of said parties should from recovering, by the Statute of Limitations. die first, the deceased party's one third-part A promissory note payable on demand is pay- should be equally shared between the two surable immediately, and the Statute of Limita-vivors; and if the second should die, the surtions runs from the date of the note, and not from the time of the demand. 1 Sel. N. P. 4th ed. 131, 339.

QUERIES.

Common Law.

EXECUTORS' ACCOUNTS.

J. S.

The executors of deceased executors have been applied to by the representative of a legatee for an account, which they refuse to give; but say, that if the representative chooses, he may go to the office of their solicitor, and peruse the account. The representative resides in London, and the executors and their solicitor 50 miles from town. Can the executors be compelled to furnish a detailed copy of the account, on the representative offering to pay for a copy?

vivor should possess and enjoy his whole estate and effects."-H. M. died seised of three copyhold houses in fee, leaving M. M., C. M., and E. M. surviving. The two latter attained 21. What estates or interests do M. M., C. M., and E. M. respectively take under the above will? R.M.

THE EDITOR'S LETTER BOX.

We still wait for some additional names, before we commence a Stamped Country Edition; and which will contain some intelligence collected particularly for that part of our impression.

We have to acknowledge the communications of "Querist;" S.; "Pesendede;" P.; J. S.; J. K.; "A Reader;" and T. D.

The Reviews of several Books, which we have received, and various Contributions, are unavoidably deferred. We beg the indulgence of our Correspondents.

DECISIONS

ON THE INTERPLEADER ACT.

ONE of the most important and useful statutes passed during the last two Sessions of Parliament, is the Interpleader Act,-the 1 & 2 W. 4, c. 58. Various decisions have been pronounced on its enactments; and in the present article we propose to point out how far its provisions have been held to extend.

On examining the act, it will be perceived, that there are three classes of persons to whom relief under it may be given. First, all bailees, having no interest in the matter bailed; secondly, sheriffs and other officers having the execution of process against goods and chattels; thirdly, persons to whom writs of mandamus may issue, and who may, or may not, have any interest in the matter to which the mandamus relates.

As to the first class of persons, it may be observed, that the only actions in which relief can be given, are assumpsit, debt, detinue, and trover,-the action of trespass being omitted. Where, therefore, either trover or trespass may be brought, and it is wished to evade the Interpleader Act, trespass may be brought, and the Courts cannot interfere. It may also be observed, that the remedy by filing a bill of interpleader is left in force, if parties choose to avail themselves of it: but it appears from the case of Sturgess v. Claude (1 Dowl. Prac. Rep. 505), that where claimants on property in dispute have proceeded in equity, they cannot

NO, CXL.

enforce their claims at law under this act, and the Court will take no notice of such claims.

In order to enable parties to obtain relief under this act, it is not necessary that the conflicting claimants should demand the absolute property of the matter in question; for a claim of lien is within the act. See Ford v. Baynton, 1 Dowl. Prac. Rep. 357. Where an issue has been directed by the Court, the question of costs, both of the original application to the Court and of the issue, will be determined after the issue has been decided. See Seaward v. Williams, 1 Dowl. P. Rep. 528.

The above appear to be the only decisions on the first branch of the act.

The second branch is that which relates to the relief of sheriffs and others from conflicting claims on property seized under process directed to them. As the relief of such executive officers is the object of this branch of the act, it should seem that it is of no consequence what the form of action is which may be brought against the sheriff, or with which he may be threatened.

In all such cases of application for relief, the officers seeking it must come promptly to the Court, where notice of conflicting claims has been received. Thus, in Devereux v. John and Another, (1 Dowl. Prac. Rep. 548,) where a sheriff allowed an action to be brought against him by assignees, who made a claim to goods seized by him under a fi. fa., and after a declaration had been delivered he obtained time to plead, the Court refused to relieve him, and made him C