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218

New Bills in Parliament.--Superior Courts : Rolls.

Westminster, the borough of Southwark, or part of the duties vested in the commissioners the circuit of twenty miles of the said city, who of the said first-mentioned Court : Be it enshall have been previously admitted, sworn and acted, that it shall and may be lawful for his inrolled an attorney or solicitor in any of the Majesty, his heirs and successors, by compis. Courts at Westminster, or who shall be a proc- sion under the Great Seal of Great Britain, to tor practising in any Ecclesiastical Court, and authorize and direct the Judges of the said cohose fitness and respectability shall be certified Court of Bankruptcy other than the Chief by the Court of Quarter Sessions, any law or Judge, any one or more of them, to act in the usage to the contrary notwithstanding.

said first-mentioned Court as a commissioner Provided that nothing herein contained shall or commissioners thereof, at such times and extend to authorize any notary who shall be for such purposes as may in any such comadmitted by virtue of this act, to practise as a mission be specified. notary, or to perform or certify any notarial That the said Judge or Judges so to be act whatsoever, within the said city of London, nained in the said commission shall have and the liberties of Westminster, the borough of may exercise all the powers, authorities, and Southwark, or within the circuit of troenty privileges, whether in the Court House of the miles of the said city, or within the limits of said first-mentioned Court or upon the circuit any other city or town wherein there are or is, or elsewhere, which by the said first-recited or hereafter shall be, any general practising act are given to or vested in the commissionnotary public, so long as such general notaryers of the said first-mentioned Court, or any public shall continue to reside and practise in one or more of them. any such city or toron.

That it shall and may be lawful for the Lord

High Treasurer or Lords Commissioners of COURT OF BANKRUPTCY.

his Majesty's Treasury of the United Kingdom

of Great Britain and Ireland for the time being, ANALYSIS OF A BILL INTITULED AN ACT TO

to direct that such sum or sums shall be paid AUTHORIZE HIS MAJESTY TO GIVE FURTHER

| as may appear fit and necessary for the dePOWERS TO THE JUDGES OF THE COURT OF

fraying the travelling expenses of such Judge BANKRUPTCY, AND TO DIRECT THE TIMES

or Judges, with their or his Registrar or deputy OF SITTING OF THE JUDGES AND COMMIS

Registrar, and other necessary officers, in the SIONERS OF THE SAID COURT.

execution of their duties under this act. RECITING 7 G. 4. c. 57, intituled “ An Act to That it shall and may be lawful for the Court amend and consolidate the Laws for the Relief of Review in Bankruptcy to order and direct of Insolvent Debtors in England,” by which any one or more of the Registrars or deputy it is enacted, that the Court established for Registrars of the said Court of Bankruptcy to the relief of Insolvent Debtors in England attend any one or more of the said Judges in shall be continued, and that the several per- the discharge of their duties under this act, sons appointed by his Majesty to be chief and and to give such attendance and perform such other commissioners of the said Court shall duties as the said Court of Review may by any continue to be the Chief and other commission-order direct. ers of the said Court, with all the powers, That it shall be lawful for his Majesty, his privileges, and authorities in the said Act spe- heirs and successors, by warrant under his cified: And that by an Act passed in the first royal sign manual, from time to time to auand second years of the reign of his present thorize any one or more Judge or Judges of Majesty (cap. 56), intituled “ An Act to es- the said Court of Bankruptcy to exercise the tablish a Court of Bankruptcy,” it is enacted same jurisdiction and powers in all respects as that it shall be lawful for his Majesty, his heirs by the said secondly-recited act is given to any and successors, by a commission under the three of such Judges; and also to direct at Great Seal, to appoint one person to be the what times the said Court of Review and all or Chief Judge and three other persons to be any of the Judges or Commissioners of the other Judges of the said last-mentioned Court: said Court of Bankruptcy shall hold their And that such Chief and other Judges have sittings. been duly appointed under and by virtue of the said Act: And that it has been found, that consistently with the vacation necessarily

SUPERIOR COURTS. allowed to the commissioners of the first-mentioned Court, and with the time occupied by

Rolls Court. them while they are on their several circuits, VOID DEVISE.-ESTATE DISCHARGED FRON intervals occur in their sittings during which

DEBTS: prisoners who would otherwise be entitled to The devise of an estate to a witness to the their discharge cannot obtain the same: And will being void, the estate descends to the that there are not a sufficient number of such heir at law of the testator, exonerated from commissioners to enable them to extend their the charges created by the introductary circuits to the principality of Wales; of all words of the will, directing all testator's which grievances repeated complaints have just debts, &c. to be paid by the executors. been made: And that the business of the The rule by which all the property given to said Court of Bankruptcy will allow time for the executors is held charged by the introthe Judges of the said Court other than the ductory words, does not apply to property Chief, some one or more of them, to discharge given to one of the executors beneficially.

Superior Courts : Rolls; K. B. Practice Court.

219

This was a question upon the construction bringing him the first half year's interest, he of a will. The testator began his will by di- declared to them that, although he should rerecting, in the usual way, the payment of all ceive the interest during his life, at his death his just debts, legacies, and funeral and tes- the principal should go to his brother. Wiltamentary expenses, by his executors there- liam Townsend having soon afterwards died, inafter to be named, and he afterwards named this suit was instituted for the purpose of obThomas Davies, his second son, and another taining a decision of this Court on the question person his executors, whom he also made wit- whether the 20001. should belong to the denesses to the will. Thomas Davies was not ceased's brother, or be considered as part of only made executor and witness, but a parti- his estate in the hands of his executors. cular estate was beneficially devised to him by The Master of the Rolls, after stating the the will. That devise being void, according facts of the case, and a summary of the arguto the statute a, the estate descended to the ments at the bar, said it had been urged in eldest son of the testator, as his heir at law. argument that this was a resulting trust for the And the question in the cause was, whether testator under the Statute of Frauds, and that that estatc in his hands could be charged with the declaration by which it could be rebutted, the payment of the debts, legacies, &c.

should be commensurate with the legal effect · The Master of the Rolls decided that it could of the deed. He had carefully examined the not. The introductory words of the will, di- authorities on the subject, and he found two recting those payments to be made by the ex- cases, Lloyd v. Spilleti, a and Lane v. Deighecutors, applied to all the property given to ton, b in both of which it was decided that a the executors by the will. But this estata, resulting trust might be rebutted by a parol the subject of the roid devise, which for being declaration which was not commensurate with void descended to the heir of the testator, was the legal operation of the deed. Such trust not given to the executors-it was intended by might be rebutted as to part, though not rethe testator as a gift to one of the executors butted as to the other part. There was no only. But the principle of the rule, in which reason, in principle, why the trust might not it was held that all the property given to the be rebutted by the declaration in the present executors 'stands charged by the introductory case as to part of the trust in the land. If this words of the will, applies only to such property were a case within the Statute of Frauds thereas is given to the executors jointly; whereas fore, the resulting trust would be well rebutted this estate was given to one of them, and that as to the principal, although not as to the for his own use and benefit. The estate there-interest of money. But, in fact, this is not a fore in question is to be considered as exone- trust within the Statute of Frauds; for being rated from the effect of the introductory words a mortgage, it was in the nature of personal in the will.

estate, and the words of the Statute of Frauds Warren v. Davies, before M. R. at the Rolls, extended only to “ lands, tenements, or hereJuly 9, 1833.

ditaments,” by which was meant fee simple

| lands and tenements, “ or any interest in or RESULTING TRUST.-PAROL DECLARATION.

concerning them.". It was therefore his MONEY ON MORTGAGE.

Honor's opinion, that the brother of the tes.

tator should be declared entitled to the 20001. A resulting trust may be rebutted as to part or

together with the interest on the same from the whole by a parol declaration not com

the death of William Townsend. mensurate with the legal operation of the

Benbow v. Townsend, before M. R. at the deed creating it.

2 Rolls, 9th of July, 1833. Money laid out on mortgage of copyhold

lands, is not within the operation of the Statute of Frauds, and a parol declaration as to the whole or part of ii, will be enforced

King's Bench Practice Court. by this Court.

JUDGMENT AS IN CASE OF A NONSUIT. . William Townsend, deceased, lent the sum of 20001. to the trustees of the Tottenham |

Giving notice of trial after the defendant is Court Chapel, who, to secure the re-payment

entitled to judgment as in case of a nonsuit, thereof with interest, granted a mortgage on

does not deprive him of his righe. the Chapel, which was copyhold ; and cove | Mansel shewed cause against a rule for judgnanted, by the mortgage deed, to surrender ment as in case of a nonsuit. In this case, the Chapel to the use of the lender. He had issue was joined in Michaelmas term, 1832. directed that his brother's name should be in-No proceedings were taken by the plaintiff serted in that deed, as if he had been the lender during that term or Hilary term. On the 16th of the money, which was accordingly done, and of April, notice of trial was given for the last a surrender was made to him by direction of Middlesex sittings in Easter term, and the rule William Townsend ; who declared to the trus- nisi, for judgment as in case of a nonsuit, was tees that his intention, in using his brother's obtained on the 20th of April. This, it was name and procuring the surrender to be made contended, was an improper application, as it to him was, that the money lent should belong to the brother. Again, upon the trustees a 2 Atkins, 148.

b1 Ambl. 409. . a 25 G. 2. c. 6. $ 1.

c 29 Car. 2. c. 3. $ 4.

220

Superior Courts : K. B. Practice Court.

was too late to apply for such a rule after the FEME COVERT. DISCHARGE OUT OF CUS. plaintiff had given notice of trial.

TODY. White, in support of his rule, cited the case

Where a married woman will be discharged of Bainbridge v. Purvis, a in which case it was held, that where a default in proceeding to

out of custody when taken in execution. trial had been made by a plaintitt, but the de

Comyn shewed cause against a rule for disfendant did not move for judgment as in case charging the female plaintiff out of custody. of a nonsuit until after fresh notice of trial, ön á ca. sa. issued against her for the costs of the defendant was still entitled to his judg. a nonsuit in this action. It was an action of ment. The plaintiff has neglected to proceed trespass for imprisoning the wife, and the according to the course and practice of the plaintiffs were nonsuited. The question was. Court, by not giving notice of trial. The case whether she was entitled to be discharged untherefore comes within the mischief contem- |

der these circumstances. That where the wife plated by that of Buinbridge v. Purvis. The

is taken in execution she cannot be discharged, defendant will be thrown over the term in con

unless it appear that she has separate property sequence of the plaintiff's laches.

out of which the demand can be satisfied : she Patleson, J.-I think this case comes within swears that she has not; but the affidavits in the principle of Bainbridge v. Purvis. The answer suggest that she has one-eighth part of rule must, therefore, be absolute, unless the certain leasehold property, and has a share in plaintiff will give peremptory undertaking to other property under a will. Whether she has try pursuant to his notice.

separate property, therefore, is a matter of Rule discharged accordingly.--Smedley v.

doubt. Under these circumstances, as it did Christie and anocher, May 3, 1833. K.B.B.C. not clearly appear that she had no separate

property, the Court would not be disposed to

discharge her out of custody. JUDGMENT AS IN CASE OF A NONSUIT. Law supported the rule. REMANET.

Cur. adv. vull. If the plaintiff has once taken down his cause Patteson, J.-This appears to be the first

to the assises, and it has been made a case which has arisen where the husband and remanet, the defendant cannot afterwards wife have been nonsuited and the wife has

obtuin judgment as in case of a nonsuit. been taken in execution for the costs. The N. R. Clarke shewed cause against a rule

ww case is reduced to the question, whether she for judgment as in case of a nonsuit. Notice

has any separate property. She says she has of trial was given for the last Summer Assizes,

no property in her own right, separate and

apart from her husband. The answer to this when it was made a remanet. Another notice

is, that it is believed she has one eighth part of was given for the Spring Assizes, at which time the plaintiff did not try. Having once

certain leasehold property, and that she has a taken down the cause to the assizes, and it

share in certain other property under a will. having been made a remanet, the plaintiff had

It is thus left a matter of doubt. It would

therefore be more satisfactory if she would complied with the provisions of the act of par

produce the will. liament; and therefore the defendant was not

If the property is settled to

her sole and separate use, she is not entitled in a situation to move for judgment as in case

to her discharge; but if it was not left to her of a nonsuit. White, in support of the rule, contended,

sole and separate use, I think she ought to be

| discharged. The burthen of shewing that the that although taking the cause down to trial |

property is for her separate use, is thrown on and making it a remanet, would cure previous laches; yet the plaintiff having taken down the

the other side. The rule will therefore be

absolute for discharging her, unless it is shewn cause a second time, and not having proceeded

within two days, that the property is settled to to trial pursuant to his notice, he was liable to

her sole and separate use under the will. judgment as in case of a nonsuit.

Rule accordingly.-Houd et Ux, v. Matthews, Cur. adv. vult.

April 24, 1833. K. B. P. C. Putteson, J.--I have consulted the other Judges on this point; and looking at the principle of the authorities, we are of opinion, that ATTORNEY.-ADMISSION.-STAMP DUTY. the plaintiff having taken down his cause to In what cases and on what grounds an attortrial, and it having been made a remanet, the ney may be re-admitted who has omitted to defendant cannot afterwards have judgment as take out his certificate and pay the proper in case of a nonsuit; and that it does not sig

amount of duty, and has practised during nify whether the plaintiff is passive and takes

the period of that omission. no step, or gives notice of trial, which he

On application to re-admit a country attorney, abandons. This rule must therefore be discharged, and the costs will be costs in the

it appeared that his agent, supposing he had not

been admitted three years, for some time only cause. Rule accordingly.-Gilbert v. Kirkland, May pi

| paid 41. a year' duty instead of 81. By accident, 2, 1833. K. B. P. C.

also, he omitted to take out the certificate for the current year. During all this time he had

practised as an attorney, but was not aware of a Dowl. Prac. Rep. vol. 1. p. 444.

it. The consent of the Stamp Office to his

Superior Courts: K. B. Practice Court.Exchequer.

221

service.

being allowed to pay the arrears of duty, was Term, before he applied for the rule, although produced.

the writ had come to his hands on the 8th of Patteson, J., allowed him to be re-admitted 'December. Under these circumstances, the on payment of a nominal fine and the arrears Court would not be disposed to relieve him. of duty.

S. Hughes appeared for the sheriff.—The Re-admitted.-Ex parte Jones, T. T. June, goods were seized on the 10th of December ; 1833, K. B. P. C.

on the 16th, notice of the bill of sale to Joseph

Allen was served on the sheriff ; on the 18th, EJECTMENT.-SERVICE OF DECLARATION. I tained a Judge's order staying proceedings till

| Robert Allen (the defendant in the action) obReading over, without explaining, to the the 4th day of Hilary Term, to give time to

wife on the premises the notice at the foot move to set aside the judgment and execution of the declaration in ejectinent, is sufficient for irregularity. This was served on the sheriff

| on the 19th; that motion was accordingly made Mansel moved for judgment against the | in Hilary Term, and was not ultimately disposed casual ejector. The service was on the wife of till the 23d of January, when the rule was on the premises. The deponent, making the discharged. He was proceeding to state other affidavit of service, stated that he had read | facts, whenover the notice at the foot of the declaration. I Jervis objected that there was no affidavits but did not explain the object of it.

" of those facts. Patieson, J.-That will do. Reading over

Hughes, in answer, said, that it was not the notice without explaining, or explaining it usual to move on a special affidavit. The rule without reading it over is sufficient. The same was moved upon the common affidavit, which observation does not apply to the declaration was now a printed form : he contended that itself, as that gives no inforination to the this was sufficient, otherwise it would be necestenant in possession of what the object of the sary, in all cases, for the sheriff to have a speservice is.

cial affidavit anticipating all the objections that Rule granted.- Doe v. Roe. T. T. 11th of might be made on the other side. He offered June, 1833. K. B. P. C.

to produce a supplemental affidavit of the facts he had stated, and of the further facts that the sheriff did not know of the rule being disposed

of till the 26th of January, when he received a Erchequer.

letter from the plaintiff to that effect; that the

defendant's attorney, who was also the attorney INTERPLEADER ACT.-SHERIFF.-LACHES. for the person claiming under the bill of sale,

had promised to acquaint the sheriff with the If a sheriff wishes to obtain relief under the

result of the motion, but had neglected to do Interpleader Act, he must come to the

so; that the sheriff, on being written to on the Court promptly, and no supplemental affi

26th, by the plaintiff, and required to go on davit explaining his delay will be allowed

with the execution, proceeded to make prewhen cause is shewn against his rule.

parations for selling the goods; but that on It should seem that the sheriff ought to deny

the 30th he received a letter from the attorneys collusion with any of the parties.

for Joseph Allen, reminding him of the claim In this case S. Hughes obtained the com- made by him. An indemnity was applied for, mon rule under the Interpleader Act, calling but refused. These facts, if the Court would on the execution creditor and the brother of permit it, could be embodied in a supplethe defendant, who clained the goods under a mental affidavit. As the rule was not disposed bill of sale, to appear before the Court and of until the 23d of January, and the affidavit state their claims, and abide by such order as in support of the application not being sworn the Court should think proper to make. It untill the 30th, the sheriff had only delayed six appeared that the fi. fa. under which the sei- days in coming to the Court. This, it was zure had been made, was sent on the 8th of contended, was not such laches as deprived the December, and was returnable on the 11th of sherift of the relief granted by the Interpleader January, the first day of Hilary Term. The Act. sheriff accordingly seized, and soon afterwards The Court said, that the sheriff could not be received notice, from the brother of the de-allowed to make a supplemental affidavit; but fendant, of a claim to the goods, under a bill that he should have come prepared, in the first of sale given on the 13th of May, 1832. Un- instance, with an affidavit accounting for his der these circumstances, the sheriff applied to delay. He was bound to watch the rule for the Court for relief under the 1 & 2 W. 4. setting aside the proceedings, and to have come c. 58. $ 6, the Interpleader Act.

| to the Court within four days after it was disJ. Jervis appeared on behalf of Joseph posed of. It was by no means clear that the Allen, the claimant, and W. H. Walson on sheriff ought not to deny collusion. Under behalf of Cook, the execution creditor. It the circumstances, the sheriff ought to pay the was contended, by both the learned counsel, | costs. that unless the sheriff applied promptly to the Rule discharged, with costs.-Cooke v. Robert Court he was not entitled to relief. Here he Allen, E. T. 1833. Excheq. had not applied promptly, for he had delayed until the 31st of January, the last day of Hilary

222

Notes of the Week.- Exchequer Sittings.-Accountant General's Office.

Waiting for consideration of Reports. NOTES OF THE WEEK.

Privy Council Appeals.

Justices of the Peace.
HOUSE OF LORDS.

Highways.
Bills waiting for Second Reading.

Tithes Commutation.

Passed. Assizes Removal.

Lunatic Commissions, with amendments. Fines and Recoveries.

Patents for Inventions, with amendments.. Dower. Curtesy. Inclosure Awards Titles. Dwelling House Robbery.

It will be observed by this List that the Patents for Inventions.

number of Law Bills has rather increased Ecclesiastical Jurisdiction.

than diminished since our last publicaCourt of Bankruptcy.

tion.
Chancery Court of Appeal.
Chancery Offices abolishing.
Waiting for Committee,

ADJOURNMENT OF THE EXCHEQUER Inheritance.

(EQUITY) SITTINGS. Separatists' Affirmation. Parochial Rates Exemption.

Waiting for Third Reading. On Wednesday last the 17th instant, the Lord Payment of Debts out of Real Estate.

Chief Baron adjourned his Equity Sittings Passed.

until Saturday the 27th instant; and his Lord

ship will continue his sittings on causes only Court of Chancery Regulation.

from that day to Saturday the 10th day of Au

gust inclusive. HOUSE OF COMMONS.

Notices of Motions. On report on Law Amendment Bill, to LACCOUNTANT GENERAL'S OFFICE. restore clauses for sending causes for less than 501, to be tried by the Sheriff. Mr. Solicitor General.

IT IS ORDERED, that the books of the AcTo amend the Stage Coach Act. Mr.

countant General be closed from Saturday Rice.

the 24th August next to the first General Regarding the Signature of Death War

Seal before Michaelmas Term next ensuing, rants. Sir S. Whalley.

in order to adjust the accounts of the suitInns of Court,

- Sir F. Vincent. nns of Court, Mr. Hughes Hughes.

ors with the books kept at the bank. And To establish Local Courts. Mr. O'Con

that during that time no draft for any money or certificate for any effects under the

care and direction of this Court be signed · Bills waiting for Second Reading. or delivered out by the said Accountant Law of Libel.

General, or any stocks or annuities acceptParish Vestries Act Amendment.

ed or transferred by him, relating to the To amend 2 & 3 W. 4. c. 107 (Metro

suitors of this Court: And that no pure politan Commissioners of Lunacy). chase, sale, or transfer, be made by the said

Accountant General, unless the order, reIn Committee.

quest, or Registrar's certificate, be left at Imprisonment for Debt.

his office on or before Saturday the 17th Parochial Registration.

day of August next : And that no order Metropolitan Police.

for the payment of any money out of cash Notaries Public.

which may be then in Court be received at Burglary.

the Accountant General's office after TuesPrisoners' Counsel.

day the 20th day of August next. Waiting for Report. Law Amendment.

nell.

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