As to Replevin on a Distress for Poor Rates.

43

AS TO REPLEVIN LYING ON A DIS-tained against the plaintiff, he not having apTRESS FOR POOR RATES.

(Concluded from p. 28.)

pealed to the sessions; and the second, whe ther he was rateable at all. The latter, however, being considered the principal question, 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 affording 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 juristion, and consequently an appeal would be absurd.

diction under the 43 Eliz.; and that, without 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- 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 rate; 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 averia caruce were distrainment, that the action did not lie; contending, that the Statute of Marlbridge, upon which replevin by plaint rested, did not extend to a distress by the King, or for public services; and that the distress given by the 43 Eliz. being a particular remedy for a public duty, and the words being," that the issue in every such action shall be joined, to be tried by verdict of twelve men, and not otherwise," excluded replevin by plaint; because the trial in the county court, except by prescription, was not by a jury. The whole Court (King's Bench), however, held, that whatever the practice of the county court might be in other instances, in the case of replevin the trial is to be by jury.

In Dewell v. Marshall (C. P.), 3 Wils. 442, where the plaintiff declared in replevin, and the defendant, the overseer, avowed under the 19th section of the 43 Eliz.; to which the plaintiff pleaded in bar, as thereby directed, that the defendant took the goods of his own wrong: upon which issue was joined. The verdict was for the defendant: but the jury having omitted to assess the treble damages given by that statute, a writ of inquiry was directed to assess them. This decision, as well as that of Herbert v. Waters, 1 Salk. 205, where the same direction was given, was therefore certainly wrong, if the action itself did not lie.

From the above authorities it might reasonably have been inferred, that it was a settled question that replevin would lie, had not the recent case of Marshall v. Pitman, in the Common Pleas, in last Hilary term, decided otherwise. In that case two questions were made: first, whether the action could be main

|

able; and that Lord Mansfield, without argu-
ment, observed, "that all about the rates is
clearly out of the present case; for if they are
bad, the parties who thought themselves ag-
grieved should have appealed." And this ob-
servation, and that without the slightest ex-
amination, appears to have been taken as
decisive of the law upon the point. Neither
of the cases I have mentioned appear to have
been referred to; nor does it seem to have
occurred to his Lordship, that the Superior
Courts had jurisdiction, as well by the words
of the statute, as upon the authority of that
well known and established legal maxim, in
1 Sand. (Wms.) 74 a, "that nothing shall be
intended to be out of the jurisdiction of a Su-
perior Court, but that which specially appears
to be so." Mr. Justice Bosanquet said, "The
real question here is, has there been an excess
of jurisdiction? The plaintiff should have
appealed in the first instance to the quarter
sessions, and not have brought his action in
this Court; because if we were to entertain
this action, we may be deciding on matters be-
yond our jurisdiction; for those cases of which
the quarter sessions take cognizance, go in the
next instance to the Court of King's Bench :"
and Mr. Justice Alderson said he was of the
same opinion. The question was, whether the
justices had jurisdiction. If they had, the
mode of proceeding adopted by the plaintiff is
irregular and informal. He should have ap-
pealed to the quarter sessions in the first in-
stance, and have gone thence to the Court of
King's Bench.

The effect of all which, supposing it to be law, appears to be to repeal the 19th section of the statute of Eliz., and to overrule the

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 trusCourt 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. The establishment of Local Courts may answer for the purposes of patronage; but any measure compelling parties to resort to them, will no doubt be felt as a great grievance. To an attentive observer of the ramifications of local influence, they will be regarded as a curse, rather than as a blessing; bearing this in remembrance, they will be in many instances preferred by a plaintiff. Returning, however, to the subject of this paper, it is submitted, in the words of Lord Ellenborough, that "Replevin is a proceeding, in which the right to levy by distress any sums claimed on account of the poor rate may be properly controverted:" the statute by which it is given not having been either repealed or altered. C. S.

SUPERIOR COURTS.

Ralls Court.

TRUST-DEED.-ACT OF BANKRUPTCY.

A conveyance of a trader's estates to trustees to sell or mortgage, and pay the proceeds as the owner should direct, is not an act of bankruptcy, as not disclosing an intention to defeat or delay creditors, who were not deprived of their remedy at law or in equity, as the beneficial interest remained

in the owner.

A security upon such trust estate, executed by the trustees and owner, for a just deht,

is available, notwithstanding any prior act of bankruptcy by the owner.

The facts of this case, which was argued by numerous counsel for two days, are stated with sufficient clearness in the following judgment, which was pronounced by the Master of the Rolls, on the 30th of April.

His Honor said, Mrs. Greenwood, the plaintiff in this cause, having a claim against Mr. Churchill to the amount of 2,2007., in respect of trust money possessed by him, an application on her part was made with strong pressure for security, early in the year 1826. On that occasion, Churchill gave his bond for the amount, with interest, payable in

when the agreement was made in October, they were not executed till the January following, and the acknowledgment of satisfaction was then entered up on the judgment. It was stated on the part of the assignees of Churchill (against whom a commission of bankrupt subsequently issued), that Mrs. Greenwood was not entitled to the benefit of her security, because it was in fact derived from certain trust conveyances executed by Churchill, by deeds of lease and release, on the 17th and 18th of July, 1826; that those deeds were in fact an act of bankruptcy, and, consequently, that her derivative title was not available. The first question therefore was, whether these trust deeds amounted to an act of bankruptcy. Any deed executed by a trader with the intent to defeat or delay his creditors, was to be considered an act of bankruptcy. That intention might appear either on the face of the deed itself, or might be proved by extrinsic 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 deed. The recital was intention to convey Churchill's leasehold and freehold estates to trustees; and the deed itself was an actual consituate in Oxfordshire, to trustees, with power of his freehold and leasehold estates, Churchill should direct, and to pay back to to sell or mortgage, and to pay the money as him such part of the proceeds as should not be applied according to his directions. Now the question was, whether this was an act of bankruptcy-whether it disclosed, by its recital or provisions, an intention to defeat or delay

veyance

creditors. His Honor could not see in what manner this deed could, if executed according to its avowed purpose, either defeat or delay creditors. It substituted the trustees for Churchill, in order to convert into money his real estates, to be applied as he himself should direct; he still remained to all intents and purposes in the same beneficial ownership of the property as before the deed was executed, and the creditor was in no degree defeated either of his legal or equitable right. As the beneficial interest still remained in Churchill, according to the Statute of Frauds, the creditor had the same legal right of execution as if no such deed had been executed. There was no intention expressed in the deed to give pre

Superior Courts: Exchequer.-Notes of the Week.

DISTRINGAS.

45

To obtain a distringas, the copy must be left at the last time of calling.

Petersdorff moved for a distringas. The affidavit stated that a copy was left on the second time of calling. Bayley, B. said he thought it should be the last time, but said he would mention it to the Court. On a subsequent day,

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 with debt. It appeared in the evidence, that these circumstances had certainly induced the execution of this deed; indeed, the state of his affairs had so affected his mind, that his friends considered he would not be equal to that conversion of his property which was necessary to relieve him from his difficulties. It was from this motive alone that the conveyance was execated, and for no other purpose than to place in his stead persons who, not being under his depression of spirits and infirmity of health, would be better able to manage his affairs than he himself was capable of doing. On neither ground, therefore, could this deed be considered an act of bankruptcy, not having the intent to defeat or defraud the creditors. But it was said, Churchill committed an act of bankruptcy prior to the trust deed, with the knowledge of one of the trustees, and that that person was not capable of taking a conveyance from the bankrupt, because he could give no validity to it. That, however, was altogether immaterial, as Mrs. Greenwood took her security on the trust estate, not from the 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

Lyndhurst, C. B. said that all the Judges had conferred together on the point, and they were all of opinion that the copy should be left at the last time of calling. He observed, that the defendant having eight days to appear, it was calculated to mislead him, if the copy was left the first or second time. The eight days were to be reckoned from the last time of calling, and the object of calling was to see whether the party kept out of the way. Rule refused.

On a subsequent day, on motions by Mr. Godson and Mr. Price for a distringas, the Court refused them on the same ground.Hill v. Maule, E. T. 1833. Excheq.

NOTES OF THE WEEK.

Exchequer.

DISTRINGAS.

Where a defendant is absent at the time of the endeavour to serve a writ of summons, a distringas cannot be moved for unless there are grounds shewn from which the Court can infer that the defendant keeps out of the way to avoid being served. Tomlinson moved for a distringas. Four 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 answer was, that the defendant was in France. The last two calls were made by appointment; but the only answer was, that the defendant was not yet returned. It was sworn that the defendant had gone over to France, and was staying there for the purpose of avoiding the demands of his creditors. Lord Lyndhurst C. B. What are the grounds stated for that conclusion.] None: but the fact is positively sworn to, and unless we get a distringas we are without remedy.

Per Curiam.-We cannot grant the rule. The

House of Lords.

LOCAL JURISDICTIONS.

THE day for the second reading of this Bill has not yet been appointed. Numerous petitions have been presented against the abolition of the Courts of Request, in various parts of the country where they have been found useful.

We have added, in another page, some further objections to the Bill, and reserve our general remarks until after the second reading.

COURT OF CHANCERY REGULATION.

This Bill has been referred, on the motion of Lord Eldon, to a select committee, consisting of the following members :- the Lord Chancellor, Lord President, Lord Privy Seal, Duke of Richmond, Earl Radnor, Earl Mansfield, Earl Rosslyn, Earl Eldon, Lord Melbourne, Lord Dacre, Lord Kenyon, Lord Aukland, Lord Redesdale, Lord Ellenborough, Lord Manners, Lord Bexley, Lord Somerhill, Lord Wharncliffe, Lord

Lyndhurst, Lord Roseberry, and Lord Wyn- | LETTERS PATENT.-
-PRIVY COUNCIL APPEALS.
ford.
SHERIFFS' Expenses.

The committee have entered on their important duties, and several solicitors of large practice and experience have been sum

These Bills are in Committee.

ASSIZES REMOVAL.

moned to attend them. Their Lordships PAYMENT OF DEBTS OUT OF REAL ESTATE.are taking the right course to obtain accurate information of the existing evils, and adopting the best method to remove them. No theoretical ingenuity can satisfactorily arrange the details of this bill: those who constantly attend to the working of the machinery can alone give information of what is necessary to be abolished and substituted.

These Bills have been read a third time

and passed this House, and we hope will soon become parts of the Statute Law.

PAYMENT OF DEBTS OUT OF REAL ESTATE.-
ASSIZES' REMOVAL.

LAW AMENDMENT.

This Bill has gone through the Committee, 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 of small debts before the Sheriffs, have been

These Bills are waiting for the second struck out. The Earl of Eldon ineffectually reading.

House of Commons.

FINES AND RECOVERIES. — LIMITATION OF
ACTIONS. INHERITANCE. -DOWER.

CURTESY.

These Bills have been reported, with the amendments which we have stated in ano

advised their omission in the Upper House, and we then expressed, and must repeat, our regret that any opposition should be offered to this useful Bill of the Common Law Commissioners. We trust the clauses will be restored.

STAMPS ON ATTORNEYS' CERTIFICATES, AR-
TICLES OF CLERKSHIP, AND ADMISSIONS.

On the motion of Mr. Tooke, the follow

ther part of this Number, and they are to ing returns have been ordered: be read a third time on Monday next.

GENERAL REGISTRY.

This Bill has been read a first time, and ordered for second reading on Wednesday the 22d inst. We shall point out, as soon as the Bill is printed, the alterations which have taken place since we gave an analysis of it in our 1st volume, pp. 180, 195.

SEWERS.

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 day of Easter Term 1833, and the gross annual amount of Stamp Duties paid during those periods upon such Certificates."

2. "Of the number of Articles of Clerkship of Attorneys, and of Assignments thereof in his Majesty's Court of King's 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, Exchequer, and Chancery in England, from the 7th day of May 1819 to the 7th day of May 1833."

These returns, we hope, will enable the honorable and learned member to obtain some amelioration of the severe burthens imposed on the profession, especially with regard to the certificate duty.

Sittings in the Common Pleas.—Answers to Queries.—Queries.