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AS TO REPLEVIN LYING ON A DIS- tained against the plaintiff, he not having apTRESS FOR POOR RATES. pealed to the sessions, and the second, whe
ther he was rateable at all. The latter, how
ever, being considered the principal question, (Concluded from p. 28.)
Mr. Serjeant Wilde particularly addressed That the Court of King's Bench was of opi- himself to it. The judgment of the Court, it nion that replevin does lie in distress for a poor will appear, was given however principally rate, appears from Selby v. Bardons, 3 B. & upon the first. Tindal, C. J., after stating the Ad. 2, where it was held, that de injuria sua first question, said, “one mode of coming to may be pleaded, by which every fact alleged in a decision is to ascertain the fact, whether the the avowry must be distinctly proved, in order justices have or have not jurisdiction; for if to sustain the right to take the goods, and to they have, it follows, from the authorities cited, entitle the defendant to have them returned : and indeed from the general convenience of thus attording the plaintiff in replevin an op- the thing, that the plaintiff should in the first portunity of substantially putting matters in instance have appealed to the quarter sessions, issue in a more satisfactory manner than could and not have brought his action in this Court. be done at the sessions. Besides which, the I am decidedly of opinion that they have jurisobjection to pay the rate might be, that it had diction ; and consequently, that this action not been regularly published; in consequence cannot be maintained.” Although it is said, of which, the objector might treat it as a nul- in Rex v. Bromyard, that the jurisdiction of lity; Rex v. Newcomb, 4 T. R. 368; in which the sessions is derived from the notice of apcase the sessions could not have any jurisdic- peal, it may be admitted that they had juris. tion, and consequently an appeal would be diction under the 43 Eliz.; and that, without absurd.
reference to the authorities referred to by his The late case of Labourin v. Marshall and Lordship, the principal of which, Hutchins v. another, was an action brought against the de-I Chambers, 1 Burr. 580, Mr. Serjeant Wilde fendants, as sheriffs of Middlesex, for not re- said, in his reply, “ was no authority at all plevying goods distrained for a poor rute; in upon the subject.” And a reference to the which the plaintiff obtained a verdict : but the report appears to confirm the learned serjeant; defendants, upon the authority of the practice and shews that the case was trespass, and the in the sheriff's office, moved in arrest of judg-question, whether averiu carucæ were distrainment, that the action did not lie; contending, able; and that Lord Mansfield, without arguthat the Statute of Marlbridge, upon which ment, observed, “that all about the rates is replevin by plaint rested, did not extend to a clearly out of the present case; for if they are distress by the King, or for public services; bad, the parties who thought themselves agand that the distress given by the 43 Eliz. being grieved should have appealed.” And this oba particular remedy for a public duty, and the servation, and that without the slightest exwords being, “ that the issue in every such ac-amination, appears to have been taken as tion shall be joined, to be tried by verdict of decisive of the law upon the point. Neither twelve men, and not otherwise," excluded re- of the cases I have mentioned appear to have plerin by plaint; because the trial in the been referred to; nor does it seem to have county court, except by prescription, was not occurred to his Lordship, that the Superior by a jury. The whole Court (King's Bench), Courts had jurisdiction, as well by the words however, held, that whatever the practice of of the statute, as upon the authority of that the county court might be in other instances, well known and established legal maxim, in in the case of replevin the trial is to be by I Sand. (Wms.) 74 a, “that nothing shall be jury.
intended to be out of the jurisdiction of a SuIn Dewell v. Marshall (C. P.), 3 Wils. 442, perior Court, but that which specially appears where the plaintiff declared in replevin, and to be so.” Mr. Justice Bosanquet said, “The the defendant, the overseer, avowed under the real question here is, has there been an excess 19th section of the 43 Eliz.; to which the l of jurisdiction. The plaintiff should have plaintiff pleaded in bar, as thereby directed, appealed in the first instance to the quarter That the defendant took the goods of his own sessions, and not have brought his action in wrong: upon which issue was joined. The this Court; because if we were to entertain verdict was for the defendant : but the jury this action, we may be deciding on inatters behaving omitted to assess the treble damages yond our jurisdiction ; for those cases of which given by that statute, a writ of inquiry was di- the quarter sessions take cognizance, go in the řected to assess them. This decision, as well | next instance to the Court of King's Bench :" as that of Herbert v. Waters, 1 Salk. 205, and Mr. Justice Alderson said he was of the where the same direction was given, was there. same opinion. The question was, whether the fore certainly wrong, if the action itself did justices had jurisdiction. If they had, the not lie.
mode of proceeding adopted by the plaintiff is From the above authorities it might reason. irregular and informal." He should have ap. ably have been inferred, that it was a settled pealed to the quarter sessions in the first in. question that replevin would lie, had not the stance, and have gone thence to the Court of recent case of Marshall v. Pitman, in the King's Bench. Common Pleas, in last Hilary term, decided The effect of all which, supposing it to be otherwise. In that case two questions were law, appears to be to repeal the 19th section made : first, whether the action could be main- of the statute of Eliz., and to overrule the Superior Courts : Rolls. several authorities before mentioned; and that two months. The bond becoming due and too without any reference to either. That not paid, Mrs. Greenwood brought an action the justices had jurisdiction, if the plaintiff had and recovered judgment. In October, 1826, chosen to bring himself within it, is undeni. Mr. James, a brother-in-law of Churchill, and able ; but not having done so, it is respectfully one of the trustees under a deed now sought submitted, that the Court of Common Pleas to be impeached as an act of bankruptcy, had jurisdiction also; and that the plaintiff, applied to Mrs. Greenwood, begging she would having two modes of proceeding, had a right not sue out execution, and representing that to make his election. This decision of the Churchill was ready, together with the trus. Court of Common Pleas, if it is to be followed, tees, to give her a security for the amount on will, in the teeth of an act of parliament to his Oxfordshire estates. Mrs. Greenwood the contrary, operate as an abridgment of the being advised to accept this proposal, deeds rights of individuals, by forcing them to submit were accordingly prepared, stating the conto that jurisdiction in which they may have the sideration to be her undertaking not to sue least confidence. It is not necessary to advert out execution; and these deeds, James, the to the objections which parties generally have, trustee, undertook to have executed. It apto refer their disputes to an inferior jurisdic-peared, in point of fact, that although dated tion, when a superior one is open to them. when the agreement was made in October, The establishment of Local Courts may an- they were not executed till the January followswer for the purposes of patronage ; but any ing, and the acknowledgment of satisfaction measure compelling parties to resort to them, was then entered up on the judgment. It was will no doubt be felt as a great grievance. To stated on the part of the assignees of Churchill an attentive observer of the ramifications of (against whom a commission of bankrupt sublocal influence, they will be regarded as a sequently issued), that Mrs. Greenwood was curse, rather than as a blessing ; bearing this not entitled to the benefit of her security, bein remembrance, they will be in many in cause it was in fact derived from certain stances preferred by a plaintiff. Returning, trust conveyances executed by Churchill, by however, to the subject of this paper, it is sub- deeds of lease and release, on the 17th and mitted, in the words of Lord Ellenborough, 18th of July, 1826; that those deeds were in that “ Replevin is a proceeding, in which the fact an act of bankruptcy, and, consequently, right to levy by distress any sums claimed on that her derivative title was not available. The account of the poor rate may be properly con- first question therefore was, whether these troverted:” the statute by which it is given trust deeds amounted to an act of bankruptcy. not having been either repealed or altered. Any deed executed by a trader with the in
C.S. tent to defeat or delay his creditors, was to be
considered an act of bankruptcy. That inten. tion might appear either on the face of the
deed itself, or might be proved by extrinsic SUPERIOR COURTS.
circumstances. In the present case it was argued in both ways. In the first place, it was
said the intention appeared on the face of the Rolls Court.
deed. The recital was intention to convey TRUST-DEED.-ACT OF BANKRUPTCY. Churchill's leasehold and freehold estates to
trustees; and the deed itself was an actual conA conveyance of a trader's estates to trustees
veyance of his freehold and leasehold estates, to sell or mortgage, and pay the proceeds
situate in Oxfordshire, to trustees, with power as the owner should direct, is not an act
to sell or mortgage, and to pay the money as of bankruptcy, as not disclosing an intention to defent or delay creditors, who were
| Churchill should direct, and to pay back to
him such part of the proceeds as should not be not deprived of their remedy at law or in
applied according to his directions. Now the equity, as the beneficial interest remained
question was, whether this was an act of bankin the owner. A security upon such trust estate, executed.
ruptcy-whether it disclosed, by its recital or
I provisions, an intention to defeat or delay by the trustees and owner, for a just deht,
creditors. His Honor could not see in what is available, notwithstanding any prior act
inanner this deed could, if executed according of bankruptcy by the owner.
to its avowed purpose, either defeat or delay The facts of this case, which was argued by creditors. It substituted the trustees for numerous counsel for two days, are stated Churchill, in order to convert into money his with sufficient clearness in the following judg- real estates, to be applied as he himself should ment, which was pronounced by the Master of direct; he still remained to all intents and the Rolls, on the 30th of April."
purposes in the same beneficial ownership of His Honor said, Mrs. Greenwood, the the property as before the deed was executed, plaintiff in this cause, having a claim against and the creditor was in no degree defeated Mr. Churchill to the amount of 2,2007., in either of his legal or equitable right. As the respect of trust money possessed by him, beneficial interest still remained in Churchill, an application on her part was made with according to the Statute of Frauds, the creditor strong pressure for security, early in the year had the same legal right of execution as if no 1826. On that occasion, Churchill gave his such deed had been executed. There was no bond for the amount, with interest, payable in intention expressed in the deed to give pre
Superior Courts : Exchequer.-Notes of the Week.
ference to any particular creditor; its sole circumstances must be stated, to satisfy the purpose was that the trustees should take on Court that he keeps out of the way to avoid themselves that conversion which, before it being served. Simpson v. Lord Graves, E. T. was made, was solely in the power of Churchill. 1833, Excheq. The extraneous circumstances relied on were evidences of great embarassment on the part of the defendant, and that he was overwhelmed
DISTRINGAS. with debt. It appeared in the evidence, that
To obtain a distringas, the copy must be left these circumstances had certainly induced the
at the last time of culling. execution of this deed ; indeed, the state of his affairs had so affected his mind, that his friends Petersdorff moved for a distringas. The considered he would not be equal to that con. affidavit stated that a copy was left on the seversion of his property which was necessary to cond time of calling. Bayley, B. said he relieve him from his difficulties. It was from thought it should be the last time, but said he this motive alone that the conveyance was ex-would mention it to the Court. On a subseecated, and for no other purpose than to place quent day, in his stead persons who, not being under his Lyndhurst, C. B. said that all the Judges depression of spirits and infirmity of health, had conferred together on the point, and they would be better able to inanage his affairs than were all of opinion that the copy should be left he himself was capable of doing. On neither at the last time of calling. He observed, that ground, therefore, could this deed be con- the defendant having eight days to appear, it sidered an act of bankruptcy, not having the was calculated to mislead him, if the copy was intent to defeat or defraud the creditors. But left the first or second time. The eight days it was said, Churchill committed an act of were to be reckoned from the last time of bankruptcy prior to the trust deed, with the calling, and the object of calling was to see knowledge of one of the trustees, and that that whether the party kept out of the way. person was not capable of taking a convey- Rule refused. ance from the bankrupt, because he could give On a subsequent day, on motions by Mr. no validity to it. That, however, was alto-Godson and Mr. Price for a distringas, the gether immaterial, as Mrs. Greenwood took Court refused them on the same ground.her security on the trust estate, not from the Hill v. Muule, E. T. 1833. Excheq. trustees alone, but from the bankrupt also, who was a party to the conveyance. On the whole, his Honor was of opinion, that the plaintiff was entitled to have her security declared available, according to the prayer of NOTES OF THE WEEK. the bill.
Greenwood v. Churchill, at Westminster, E. T. 1833.
House of Lords.
The day for the second reading of this
Bill has not yet been appointed. NumerDISTRINGÁS.
ous petitions have been presented against Where a defendant is absent at the time of the abolition of the Courts of Request, in
the endeuvour to serve a writ of summons, various parts of the country where they a distring as cannot be moved for unless have been found
have been found useful. there are grounds shewn from which the
| We have added, in another page, some Court can infer that the defendant keeps out of the way to avoid being served.
o further objections to the Bill, and reserve Tomlinson moved for a distringas.
our general remarks until after the second
Four reading calls had been made at the defendant's house, in Cornwall, and the object of the visits was stated to his lordship's servant, and the last time a copy was left. On each occasion the
COURT OP CHANCERY REGULATION. answer was, that the defendant was in France. The last two calls were made by appointment;
This Bill has been referred, on the mobut the only answer was, that the defendant tion of Lord Eldon, to a select committee, was not yet returned. It was sworn that the consisting of the following members :- the defendant had gone over to France, and was Lord Chancellor, Lord President, Lord Pristaying there for the purpose of avoiding the vy Seal, Duke of Richmond, Earl Radnor, deinands of his creditors. [Lord Lyndhurst Earl Mansfield. Earl Rosslyn. Earl Eldon. C. B. What are the grounds stated for that
Lord Melbourne, Lord Dacre, Lord Kenconclusion.] None: but the fact is positively. sworn to, and unless we get a distringas we
yon, Lord Aukland, Lord Redesdale, Lord are without remedy.
Ellenborough, Lord Manners, Lord Bexley, Per Curiam.-We cannot grant the rule. The Lord Somerhill, Lord Wharncliffe, Lord
PAYMENT OP DEBTS OUT OF REAL ESTATE.
Lyndhurst, Lord Roseberry, and Lord Wyn- | LETTERS PATENT.- PRIVY COUNCIL APPEALS. ford.
--- SHERIFFS' EXPENSES. The committee have entered on their im
These Bills are in Committee. portant duties, and several solicitors of large practice and experience have been summoned to attend them. Their Lordships | PAYMENT OF DEBTS OUT OF REAL ESTATE. are taking the right course to obtain accu
ASSIZES REMOVAL. rate information of the existing evils, and! These Bills have been read a third time adopting the best method to remove them. I and passed this House, and we hope will No theoretical ingenuity can satisfactorily soon become parts of the Statute Law. arrange the details of this bill: those who constantly attend to the working of the machinery can alone give information of
LAW AMENDMENT. what is necessary to be abolished and sub- This Bill has gone through the Commitstituted.
tee, and is waiting for the Report. Since our last Number we learn that, on the suggestion of Mr. Jervis and Mr. Hill, the
clauses relating to the trial of issues in cases ASSIZES' REMOVAL.
of small debts before the Sheriffs, have been These Bills are waiting for the second struck out. The Earl of Eldon ineffectually reading
advised their omission in the Upper House, and we then expressed, and must repeat, our
regret that any opposition should be offered House of Commons.
to this useful Bill of the Common Law Coma
missioners. We trust the clauses will be FINES AND RECOVERIES. — LIMITATION OF | restored.
ACTIONS. — INHERITANCE. — DOWER. —
STAMPS ON ATTORNEYS' CERTIFICATES, ARThese Bills have been reported, with the TICLES OF CLERKSHIP, AND ADMISSIONS. amendments which we have stated in ano
On the motion of Mr. Tooke, the followther part of this Number, and they are to Ling returns
care to ing returns have been ordered : be read a third time on Monday next.
1. “ Of the number of Certificates annually taken out by Attorneys and Solicitors, practising in England and Wales, from the
first day of Easter Term 1819, to the first GENERAL REGISTRY.
day of Easter Term 1833, and the gross This Bill has been read a first time, and annual amount of Stamp Duties paid during ordered for second reading on Wednesday those periods upon such Certificates." the 22d inst. We shall point out, as soon 2. “ Of the number of Articles of Clerkas the Bill is printed, the alterations which ship of Attorneys, and of Assignments have taken place since we gave an analysis thereof in his Majesty's Court of King's of it in our 1st volume, pp. 180, 195. Bench in each Year, from the first day of
Easter Term 1819 to the first day of Easter Term 1833, distinguishing those of University Graduates."
3. “Of the gross annual amount of Stamp
Duties upon Admissions of Attorneys and This Bill has been read a third time, and Solicitors to practise in his Majesty's Courts passed the House of Commons.
of King's Bench, Common Pleas, Exche-
These returns, we hope, will enable the This Bill has been recommitted. We honorable and learned member to obtain have stated, in another page, the amend some amelioration of the severe burthens ments made by the Committee, most of imposed on the profession, especially with which belonged, as matters of finance, to the regard to the certificate duty. Lower House.
Sittings in the Common Pleas. - Answers to Queries.- Queries.
COMMON PLEAS SITTINGS.
quently let to another person, upon whòm a
claim is made for this arrear, which he disTRINITY TERM, 1833.
charges; and upon settling with the landlord
for his rent, claims that an abatement should In Term.
be made him of the sum which he paid in MIDDLESEX.
LONDON. satisfaction of such arrear. Can the arrear Wednesday May 29 Friday , May 31 | be legally demanded from either the landlord Wednesday
e June 5 | Friday June 7
or the new tenant? And has the tenant, hav
ing paid the amount, any legal claim upon the After Term.
landlord for an allowance? Thursday - June 13 | Friday June 14
A READER. The Court will sit at 10 o'clock in the fore
SUB-LEASE.-RENT. noon on each of the days in term; and at
A. B. lets to J. D. at 701. per annum. J.D. half-past nine precisely on each of the days sublets to R. T. for a term ending 3d June, after term.
1834, at 1301. for the first six years, and a The causes in the list for each of the above
pepper corn the last year (the first year's rent sitting days, in term, if not disposed of on
having been paid in advance). R. T. sublets those days, will be tried by adjournment on the
to J. E. on the same terms, (i. e. first year's days following each of such sitting days. rent in advance and a pepper corn for the last
year,) for a term ending 2d June, 1834. J. D. is bankrupt, and his assignees refuse to take
the lease. J. E. will, by continuing in posANSWERS TO QUERIES. session for the last year, be liable to the ground
rent of 701. Has he a right to retain out of
the present year's rent the 701., in anticipation Cammon Law.
of the ground rent for the last year, or has he EJECTMENT. p. 16.
any other remedy against R. T., his immediate
landlord, for the ground rent, which he will be The remedy for dower is by action, or bylb)
s obliged to pay? The covenant for quiet enbill in equity. The remedy by action before lioyment in his lease, is limited to the acts of assignment, is by writ of dower unde nihil. I persons claiming, by, from, through, or under. habet ; and after assignment, it is by writ of LRT the lessor, dower simply. The modern remedy, however, and the one to which it is most advisable to resort, is in both cases by bill of dower in
A. takes an assignment of lease for the resi| due of a term of years, subject to covenants
| contained in the original lease, amongst which BUILDINGS.-FIXTURES. P. 16.
was the usual covenant to repair. When the It is an old acknowledged law, that a person assignee took possession, the premises were in who builds upon another's freehold, does it to a very dilapidated state : he repairs them parhis own wrong; and upon this principle I am tially, but not to the satisfaction of the lessor, inclined to think, that the lessee inentioned in who obtains a verdict against the assignee for the query of J. S. was bound to yield up the breach of covenant. Can the assignee recover building, with the brick foundation, as part of damages against the assignor, on the same the freehold, at the end of the term ; for the grounds; as in the assignment it is stated that very fact of the building being inserted in the the assignor had performed all the covenants freehold makes it forthwith part thereof, and before he parted from his interest in the term? vests it in the holder of the fee. But with re
W. gard to the sheds erected for the purposes of the lessee's trade, it is otherwise, and he was justi
Law of Attorney s. fied in removing them. See Elwes v. Maw, 3 East, 52. Case in the nature of waste will ADMISSION IN INSOLVENT COURT. lie for the removal of the building, which, it Being admitted an attorney in the King's will be observed, I have presumed was not used Bench, Common Pleas, and Exchequer, and for the purposes of the lessee's trade.
also a solicitor in Chancery, I applied by peR. R.
tition to the Insolvent Debtors' Court, to be admitted an attorney of that Court. At the
expiration of a week my petition was returned, QUERIES.
marked " no orders," and assigning no reason. Can any of your correspondents advise me what course to pursue, and in what Court?
| If my agent in town be an attorney of the InLaw of Landlord and Tenant.
solvent Court, can I practise and claim my ARREAR OF ASSESSED TAXES. fees without being admitted ? A tenant quits a house, leaving unpaid house
Horsham. and window duties. The premises are subse.