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 shall have been previously admitted, sworn and inrolled an attorney or solicitor in any of the Courts at Westminster, or who shall be a proctor practising in any Ecclesiastical Court, and whose fitness and respectability shall be certified by the Court of Quarter Sessions, any law or usage to the contrary notwithstanding. Provided that nothing herein contained shall extend to authorize any notary who shall be admitted by virtue of this act, to practise as a notary, or to perform or certify any notarial act whatsoever, within the said city of London, the liberties of Westminster, the borough of Southwark, or within the circuit of twenty miles of the said city, or within the limits of any other city or town wherein there are or is, or hereafter shall be, any general practising notary public, so long as such general notary public shall continue to reside and practise in any such city or town. COURT OF BANKRUPTCY. ANALYSIS OF A BILL INTITULED AN ACT TO AUTHORIZE HIS MAJESTY TO GIVE FURTHER POWERS TO THE JUDGES OF THE COURT OF BANKRUPTCY, AND TO DIRECT THE TIMES OF SITTING OF THE JUDGES AND COMMIS SIONERS OF THE SAID COURT. of the said first-mentioned Court: Be it enacted, that it shall and may be lawful for his Majesty, his heirs and successors, by commission under the Great Seal of Great Britain, to authorize and direct the Judges of the said Court of Bankruptcy other than the Chief Judge, any one or more of them, to act in the said first-mentioned Court as a commissioner or commissioners thereof, at such times and for such purposes as may in any such commission be specified. That the said Judge or Judges so to be named in the said commission shall have and may exercise all the powers, authorities, and privileges, whether in the Court House of the said first-mentioned Court or upon the circuit or elsewhere, which by the said first-recited act are given to or vested in the commissioners of the said first-mentioned Court, or any one or more of them. That it shall and may be lawful for the Lord High Treasurer or Lords Commissioners of his Majesty's Treasury of the United Kingdom of Great Britain and Ireland for the time being, to direct that such sum or sums shall be paid as may appear fit and necessary for the defraying the travelling expenses of such Judge or Judges, with their or his Registrar or deputy Registrar, and other necessary officers, in the execution of their duties under this act. That it shall and may be lawful for the Court of Review in Bankruptcy to order and direct any one or more of the Registrars or deputy Registrars of the said Court of Bankruptcy to attend any one or more of the said Judges in the discharge of their duties under this act, and to give such attendance and perform such duties as the said Court of Review may by any That it shall be lawful for his Majesty, his heirs and successors, by warrant under his royal sign manual, from time to time to authorize any one or more Judge or Judges of the said Court of Bankruptcy to exercise the same jurisdiction and powers in all respects as by the said secondly-recited act is given to any three of such Judges; and also to direct at what times the said Court of Review and all or any of the Judges or Commissioners of the said Court of Bankruptcy shall hold their sittings. RECITING 7 G. 4. c. 57, intituled "An Act to SUPERIOR COURTS. Rolls Court. VOID DEVISE.-ESTATE DISCHARGED FROM DEBTS: The devise of an estate to a witness to the will being void, the estate descends to the heir at law of the testator, exonerated from the charges created by the introductary words of the will, directing all testator's just debts, &c. to be paid by the executors. The rule by which all the property given to the executors is held charged by the introductory words, does not apply to property 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 20007. 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 will. That devise being void, according to the statutea, the estate descended to the eldest son of the testator, as his heir at law. And the question in the cause was, whether that estate in his hands could be charged with the payment of the debts, legacies, &c. The Master of the Rolls, after stating the facts of the case, and a summary of the arguments at the bar, said it had been urged in argument that this was a resulting trust for the testator under the Statute of Frauds, and that the declaration by which it could be rebutted, should be commensurate with the legal effect of the deed. He had carefully examined the authorities on the subject, and he found two The Master of the Rolls decided that it could not. The introductory words of the will, directing those payments to be made by the ex-cases, Lloyd v. Spillett, 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 estate, resulting trust might be rebutted by a parol the subject of the void 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 exonerated from the effect of the introductory words in the will. Warren v. Davies, before M. R. at the Rolls, July 9, 1833. RESULTING TRUST.-PAROL DECLARATION.- A resulting trust may be rebutted as to part or trust within the Statute of Frauds; for being Benbow v. Townsend, before M. R. at the Money laid out on mortgage of copyhold Rolls, 9th of July, 1833. William Townsend, deceased, lent the sum of 2000l. to the trustees of the Tottenham Court Chapel, who, to secure the re-payment thereof with interest, granted a mortgage on the Chapel, which was copyhold; and covenanted, by the mortgage deed, to surrender the Chapel to the use of the lender. He had directed that his brother's name should be inserted in that deed, as if he had been the lender of the money, which was accordingly done, and a surrender was made to him by direction of William Townsend; who declared to the trustees that his intention, in using his brother's name and procuring the surrender to be made to him was, that the money lent should belong to the brother. Again, upon the trustees a 25 G. 2. c. 6. § 1. King's Bench Practice Court. JUDGMENT AS IN CASE OF A nonsuit. Giving notice of trial after the defendant is entitled to judgment as in case of a nonsuit, does not deprive him of his right. Mansel shewed cause against a rule for judgment as in case of a nonsuit. In this case, issue was joined in Michaelmas term, 1832. No proceedings were taken by the plaintiff during that term or Hilary term. On the 16th of April, notice of trial was given for the last Middlesex sittings in Easter term, and the rule nisi, for judgment as in case of a nonsuit, was obtained on the 20th of April. This, it was contended, was an improper application, as it a 2 Atkins, 148. 220 Superior Courts: K. B. Practice Court. was too late to apply for such a rule after the plaintiff had given notice of trial. White, in support of his rule, cited the case of Bainbridge v. Purvis,a in which case it was held, that where a default in proceeding to trial had been made by a plaintiff, but the defendant did not move for judgment as in case of a nonsuit until after fresh notice of trial, the defendant was still entitled to his judg. ment. The plaintiff has neglected to proceed according to the course and practice of the Court, by not giving notice of trial. The case FEME COVERT.-DISCHARGE OUT OF CUS TODY. Where a married woman will be discharged out of custody when taken in execution. Comyn shewed cause against a rule for discharging the female plaintiff out of custody, on a ca. sa. issued against her for the costs of a nonsuit in this action. It was an action of trespass for imprisoning the wife, and the plaintiffs were nonsuited. The question was, whether she was entitled to be discharged untherefore comes within the mischief contem-der these circumstances. That where the wife plated by that of Bainbridge 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 out of which the demand can be satisfied: she sequence of the plaintiff's laches. swears that she has not; but the affidavits in answer suggest that she has one-eighth part of certain leasehold property, and has a share in other property under a will. Whether she has separate property, therefore, is a matter of doubt. Under these circumstances, as it did not clearly appear that she had no separate property, the Court would not be disposed to discharge her out of custody. Patteson, J.-I think this case comes within the principle of Bainbridge v. Purvis. The rule must, therefore, be absolute, unless the plaintiff will give peremptory undertaking to try pursuant to his notice. Rule discharged accordingly.-Smedley v. Christie and another, May 3, 1833. K. B.P. C. JUDGMENT AS IN CASE OF A NONSUIT.- Law supported the rule. Cur. adv. vull. Patteson, J.-This appears to be the first case which has arisen where the husband and wife have been nonsuited and the wife has been taken in execution for the costs. The If the plaintiff has once taken down his cause to the assizes, and it has been made a remanet, the defendant cannot afterwards obtain judgment as in case of a nonsuit. N. R. Clarke shewed cause against a rule case is reduced to the question, whether she has any separate property. She says she has for judgment as in case of a nonsuit. Notice of trial was given for the last Summer Assizes, no property in her own right, separate and when it was made a remanet. Another notice apart from her husband. The answer to this was given for the Spring Assizes, at which is, that it is believed she has one eighth part of certain leasehold property, and that she has a time the plaintiff did not try. Having once share in certain other property under a will. taken down the cause to the assizes, and it It is thus left a matter of doubt. It would having been made a remanet, the plaintiff had therefore be more satisfactory if she would liament; and therefore the defendant was not complied with the provisions of the act of par-produce the will. If the property is settled to in a situation to move for judgment as in case of a nonsuit. White, in support of the rule, contended, that although taking the cause down to trial and making it a remanet, would cure previous laches; yet the plaintiff having taken down the cause a second time, and not having proceeded to trial pursuant to his notice, he was liable to judgment as in case of a nonsuit. Cur, adv. vult. Putteson, J.-I have consulted the other Judges on this point; and looking at the principle of the authorities, we are of opinion, that the plaintiff having taken down his cause to trial, and it having been made a remanet, the defendant cannot afterwards have judgment as in case of a nonsuit; and that it does not signify whether the plaintiff is passive and takes no step, or gives notice of trial, which he abandons. This rule must therefore be discharged, and the costs will be costs in the her sole and separate use, she is not entitled to her discharge; but if it was not left to her sole and separate use, I think she ought to be discharged. The burthen of shewing that the property is for her separate use, is thrown on the other side. The rule will therefore be absolute for discharging her, unless it is shewn within two days, that the property is settled to her sole and separate use under the will. Rule accordingly.-Houd et Ux, v. Matthews, April 24, 1833. K. B. P. C. ATTORNEY.-ADMISSION. STAMP DUTY. In what cases and on what grounds an attor ney may be re-admitted who has omitted to take out his certificate and pay the proper amount of duty, and has practised during the period of that omission. On application to re-admit a country attorney, it appeared that his agent, supposing he had not been admitted three years, for some time only also, he omitted to take out the certificate for paid 47. a year duty instead of 87. By accident, the current year. During all this time he had practised as an attorney, but was not aware of it. The consent of the Stamp Office to his Superior Courts: K. B. Practice Court.-Exchequer. being allowed to pay the arrears of duty, was produced. Patteson, J., allowed him to be re-admitted on payment of a nominal fine and the arrears of duty. Re-admitted.-Ex parte Jones, T. T. June, 1833, K. B. P. C. EJECTMENT.-SERVICE OF DECLARATION. Reading over, without explaining, to the wife on the premises the notice at the foot of the declaration in ejectment, is sufficient service. Mansel moved for judgment against the casual ejector. The service was on the wife on the premises. The deponent, making the affidavit of service, stated that he had read over the notice at the foot of the declaration, but did not explain the object of it. Patteson, J.-That will do. Reading over the notice without explaining, or explaining it without reading it over is sufficient. The same observation does not apply to the declaration itself, as that gives no information to the tenant in possession of what the object of the service is. Rule granted.-Doe v. Roe, T. T. 11th of June, 1833. K. B. P. C. Exchequer. INTERPLEADER ACT.-SHERIFF.-LACHES. If a sheriff wishes to obtain relief under the Interpleader Act, he must come to the Court promptly, and no supplemental affi, davit explaining his delay will be allowed when cause is shewn against his rule. It should seem that the sheriff ought to deny collusion with any of the parties. In this case S. Hughes obtained the common rule under the Interpleader Act, calling on the execution creditor and the brother of the defendant, who claimed the goods under a bill of sale, to appear before the Court and state their claims, and abide by such order as the Court should think proper to make. It appeared that the fi. fa. under which the seizure had been made, was sent on the 8th of December, and was returnable on the 11th of January, the first day of Hilary Term. The sheriff accordingly seized, and soon afterwards received notice, from the brother of the defendant, of a claim to the goods, under a bill of sale given on the 13th of May, 1832. Under these circumstances, the sheriff applied to the Court for relief under the 1 & 2 W. 4. c. 58. § 6, the Interpleader Act. J. Jervis appeared on behalf of Joseph Allen, the claimant, and W. H. Watson on behalf of Cook, the execution creditor.-It was contended, by both the learned counsel, that unless the sheriff applied promptly to the Court he was not entitled to relief. Here he had not applied promptly, for he had delayed until the 31st of January, the last day of Hilary 221 Term, before he applied for the rule, although the writ had come to his hands on the 8th of December. Under these circumstances, the Court would not be disposed to relieve him. S. Hughes appeared for the sheriff.-The goods were seized on the 10th of December; on the 16th, notice of the bill of sale to Joseph Allen was served on the sheriff; on the 18th, Robert Allen (the defendant in the action) obtained a Judge's order staying proceedings till the 4th day of Hilary Term, to give time to move to set aside the judgment and execution for irregularity. This was served on the sheriff on the 19th; that motion was accordingly made in Hilary Term, and was not ultimately disposed of till the 23d of January, when the rule was discharged. He was proceeding to state other facts, when Jervis objected that there was no affidavits of those facts. Hughes, in answer, said, that it was not usual to move on a special affidavit. The rule was moved upon the common affidavit, which was now a printed form: he contended that this was sufficient, otherwise it would be necessary, in all cases, for the sheriff to have a special affidavit anticipating all the objections that might be made on the other side. He offered 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 letter from the plaintiff to that effect; that the defendant's attorney, who was also the attorney for the person claiming under the bill of sale, result of the motion, but had neglected to do had promised to acquaint the sheriff with the so; that the sheriff, on being written to on the 26th, by the plaintiff, and required to go on with the execution, proceeded to make prethe 30th he received a letter from the attorneys parations for selling the goods; but that on for Joseph Allen, reminding him of the claim made by him. An indemnity was applied for, but refused. These facts, if the Court would permit it, could be embodied in a supplemental affidavit. As the rule was not disposed of until the 23d of January, and the affidavit in support of the application not being sworn untill the 30th, the sheriff had only delayed six days in coming to the Court. This, it was contended, was not such laches as deprived the sheriff of the relief granted by the Interpleader Act. The Court said, that the sheriff could not be allowed to make a supplemental affidavit; but that he should have come prepared, in the first instance, with an affidavit accounting for his delay. He was bound to watch the rule for setting aside the proceedings, and to have come to the Court within four days after it was disposed of. It was by no means clear that the sheriff ought not to deny collusion. Under the circumstances, the sheriff ought to pay the costs. Rule discharged, with costs.-Cooke v. Robert Allen, E. T. 1833. Excheq. 222 Notes of the Week.-Exchequer Sittings.—Accountant General's Office. On report on Law Amendment Bill, restore clauses for sending causes for less than 50%. to be tried by the Sheriff. Solicitor General. To amend the Stage Coach Act. Rice. Regarding the Signature of Death rants. Sir S. Whalley. Sir F. Vincent. Mr. Mr. War Inns of Court, {Mr. Hughes Hughes. To establish Local Courts. Mr. O'Connell. Bills waiting for Second Reading. Parish Vestries Act Amendment. To amend 2 & 3 W. 4. c. 107 (Metropolitan Commissioners of Lunacy). In Committee. Imprisonment for Debt. Metropolitan Police. Notaries Public. Burglary. Prisoners' Counsel. Waiting for Report. Law Amendment. ACCOUNTANT GENERAL'S OFFICE. It is ordered, that the books of the Accountant General be closed from Saturday the 24th August next to the first General Seal before Michaelmas Term next ensuing, in order to adjust the accounts of the suitors with the books kept at the bank. And that during that time no draft for any money or certificate for any effects under the care and direction of this Court be signed or delivered out by the said Accountant General, or any stocks or annuities accepted or transferred by him, relating to the suitors of this Court: And that no purchase, sale, or transfer, be made by the said Accountant General, unless the order, request, or Registrar's certificate, be left at his office on or before Saturday the 17th day of August next: And that no order for the payment of any money out of cash which may be then in Court be received at the Accountant General's office after Tuesday the 20th day of August next. |