Superior Courts: Exchequer. end of the term, it was wished that cause might be shewn at chambers to prevent delay. Bayley, B., refused to grant this part of the motion as to the place of shewing cause, on the ground that although the first section of the act granted such power to a Judge at chambers, the sixth section, under which the present application was made, did not. Rule granted accordingly. Shaw v. Roberts, T. T. 1833. Excheq. 445 Cause was shewn against this rule, and it was contended that the venue could not be changed, after time to plead had been obtained on the usual terms. The Court was of opinion, that as the time to plead had been so obtained, it was not competent for the defendant to change the venue. Rule discharged, with costs.-Fouks v. Fisher, T. T. 1833. Exch. ARREST WITHOUT PROBABLE CAUSE.-COSTS. -MERITS. If a defendant is arrested for an illegal debt, and which is consequently not recovered, it is an arrest without reasonable and probable cause; and therefore, he will be entitled to his costs under 43 G. 3. c. 46. In this case, a rule nisi was obtained for giving the defendant his costs, under the 43 G. 3. c. 46. § 3, on the ground of his having been arrested without reasonable and probable cause, for 281, the sum of 57. only being recovered. It appeared that the action was brought to recover the amount of certain beer supplied by the plaintiff to the defendant. The plaintiff was the keeper of a Tom and Jerry shop, and the defendant a man in very poor circumstances; the beer had been supplied in many instances while the defendant was in a state of intoxication; in one instance alone, he was charged with thirty-six quarts in a single day. Per Curiam.-The jury were told that it was Improper for the plaintiff to supply the defendant with the beer while he was in a state of intoxication; the jury accordingly only gave 57. to the plaintiff; that was a satisfactory verdict, for the supply was improperly made; the defendant had no means of judging whether he had been supplied or not with the quantity charged. The jury thought he had been charged too much; and therefore, under the circumstances, the defendant ought to have his costs. Rule absolute, and no action to be brought. -Erle v. Wynne, T. T. 1833. Exch. CHANGE OF VENUE. Where, in an action of assumpsit, the Court will not allow the venue to be changed on the usual terms. This was an action of assumpsit on the money counts. The time for pleading being out, a summons was taken out before Mr. Baron Bolland for time to plead, and also to change the venue. His Lordship refused to make the order, and further time was then asked, and a week granted, on the usual terms of taking short notice of trial. A rule nisi for changing the venue was afterwards obtained on an affidavit, which stated that the cause of action arose in Warwickshire, and that all the witnesses resided there. DISTRINGAS.-UNIFORMITY OF PROCESS ACT. What is necessary to entitle a plaintiff to a distringas. Application for a distringas. The affidavit on which the application was founded, stated, that the deponent had made four attempts to serve a summons on the defendant, by calling at his house, and leaving a copy on each occasion. At the house, the answer given to deponent's enquiries was, that the defendant was not at home, and it was not known when he would be at home. The affidavit further stated, that the deponent had been informed by two persons, that they believed the information to be true, that the defendant was keeping out of the way. Bayley, B., observed, that this statement in the affidavit was insufficient, because it ought to appear from the answers at the house, or otherwise, that the defendant is at home at the time attempts are made to effect a service. Rule refused. - Price v. Bower, T. T. 1833. Exch. EXECUTOR.-TERMS.-COSTS. In what case the Court will allow a defendant to be let in to try on terms. In this case an action was commenced against the defendant, who was an executor. Judgment was obtained against him by the plaintiff, for want of a plea. On payment of costs, a rule was made by this Court for permitting the defendant to come in and try, he admitting the execution of a certain agreement. Before the rule for this purpose was made absolute, the defendant died. That rule was afterwards rescinded on application of the plaintiff, and an action of sci. fa. commenced upon the judgment. By his will, the defendant appointed four persons as his executors, all of whom renounced. Administration was afterwards taken out by two other persons, who applied to be let in to try the merits of the case, they undertaking to pay all the costs, and to admit all that the original defendant was to have admitted. The Court granted the application on the terms of the payment of those costs to which the defendant would be liable, and also the costs of the application. The parties making the application, however, ought not to pay the costs of applying to rescind the original order for letting in the original defendant to try on the merits after signing judgment for want of 446 Superior Courts: Exchequer.-Answers to Queries.-Queries. a plea. Those costs were unnecessarily in- | conditional discharge out of custody. The curred, because there was no occasion to have Court could not allow any person thus to take applied to rescind that order until administra- advantage of his own wrong. Rule discharged. tion had been taken out. E. T. 1833. Exch. Rule absolute, accordingly.-Cash v. Cock, executor, E. T. 1833. Exch - Cantellow v. Trueman, PRISONER. SECOND ARREST.-JUDGE'S OR- In what case a defendant may be arrested ANSWERS TO QUERIES. Practice. TESTE OF WRITS. PP. 287, 335. In this case the defendant had been arrested Having had some concern with the case of for a certain sum, at the suit of the plaintiff. Engleheart v. Dunbar, I beg leave to corWhile in custody, he sent to the plaintiff, for rect your correspondent S. G. S., and to say the purpose of making terms, in order that he that the apprehension of W. O., as to the point might obtain his discharge. He proposed to in issue, is the correct one. The ground of give a third person's bills for the amount, by a the application to set aside the ca. sa. was, not certain day; on condition of receiving these that a ca. sa. could not be tested prior to the bills, the plaintiff permitted him to be dis- day of signing judgment, but that the ca. sa. in charged. Those bills, however, were never this action, being issued under the 3d sect. of given to the plaintiff, and he afterwards arrest-1 W. 4. c. 7, should have been tested on the ed the defendant a second time for the original debt, without making a fresh affidavit of debt, or obtaining a Judge's order to arrest. A rule nisi was obtained for the discharge of the defendant, on the ground that no person could be arrested twice for the same debt. Cause was shewn against this rule; and it was contended, that the present instance was very different from those cases in which a defendant had been arrested, and then by some act of the plaintiff he had been absolutely discharged from custody, and then again arrested. Here the defendant had himself applied to the plaintiff to be discharged, and obtained his discharge on a condition suggested by himself. The plaintiff only discharged him conditionally; that is to say, he did not discharge him at all, unless the condition so suggested was complied with. It had not been complied with; and therefore the conditional discharge by the plaintiff did not operate as a discharge at all. If this were to be considered as a discharge, and therefore that the defendant could not be retaken into custody, the latter would in fact be permitted to take advantage of his own wrong; for by fraud he had in fact obtained his conditional discharge. In support of the rule, it was contended, that the discharge given by the plaintiff, operated as a species of discontinuance, and therefore that the present case came within 1 Reg. Gen. H. T. 2 W. 4. § 7, which directed that after a non pros., non-suit, or discontinuance, the defendant should not be arrested a second time without the order of a Judge. Here, therefore, as the discharge by the plaintiff operated as a discontinuance, the plaintiff should at any rate have obtained a Judge's order before he proceeded to arrest the defendant. The Court was however of opinion that the discharge by the plaintiff was neither a non pros., a nonsuit, nor a discontinuance; and therefore that the rule did not here apply. Here a deception had been practised, and the defendant by his own wrong had obtained a day of the issuing thereof, whereas it was tested on the last day of Hilary term, the judgment being signed in the ensuing vacation. There would seem to be a little inaccuracy in the report of this case in the Legal Observer, which has led to the query of S. G. S. QUERIES. Common Law. J. K. A. drew on B. for 307, and after acceptance, discounted with D., with whom B. kept a banking account. Before the bill arrived at maturity, D. the holder of the bill failed, and at this time was indebted to B. in a much larger amount than the 307., in the balance of his banking account. Can B. set off this debt? D. D. Queries. gentleman's parlor, the shutters of which have OFFICIAL ASSIGNEE. 447 A. and B. partners, in consequence of cer tain liabilities incurred by 4., determined upon dissolving the partnership. Shortly after the dissolution 4. becomes a bankrupt, and upon investigating the partnership accounts it is found that A. has drawn more than his share out of the partnership funds. There are debts to a large amount due to the firm, and in order DISTRESS. BROKER'S COMMISSION. to enforce the payment of those debts B. is Can a broker who distrains for rent under advised that he must proceed in the names of 207., charge five per cent commission upon the himself and the assignees of A.; application amount, where the goods are sold by private has been made to the assignees to consent to contract at the condemned price? And when allow their names to be used. The creditors' goods are distrained upon for King's taxes, assignee has no objection whatever. The offican any other person than the collector levy?cial assignee however objects, notwithstanding and when the goods are condemned, what are the expenses the collector's broker can legally charge? A SUBSCRIBER. NEWSPAPER.-REPORT Of trial. B. has offered, and is still ready and willing, to give him bond for indemnity against all costs and liabilities. B. is anxious to know what course to pursue in order to compel the official assignee to allow his name to be used in any surely it never could be intended that justice should be so defeated by an officer of the Court, and particularly in this case, B. being liable to pay the debts of the late firm, which it will be impossible for him to do unless he has the power of enforcing payment of the debts due to him and his late partner. Practice. J. B. Is an editor of a newspaper justified in pub-action it may be thought proper to bring; as lishing the report of a trial, which has appeared in another paper, after notice served upon him not to do so, although such report may be substantially correct, but which charges the defendants, in direct terms, with having assumed false characters, and thereby practised a fraud; and which, consequently, would render them liable to a criminal prosecution? The judgment of Lord Ellenborough, in Browne v. Croome, 2 Starkie, 297, seems to bear upon the subject, where it will be found that his Lordship stated, "In the case of a brief to counsel, for instance, the publication, as between attorney and counsel, might not be libellous, and yet, if it were to be printed and published, there might be a libel in every line. Every unauthorized publication, to the detriment of another, is, in point of law, to be considered as malicious." And Saunders v. Mills, 3 Moo. & Pay. 520; and Duncan v. Thwaites, 3 B. & C. 556; 5 D. & R. 447; have been referred to, but are not satisfactory. PARTNERSHIP. * A. * A. carries on business, and as a remuneration to B. for his services therein, engages to pay him whatever may remain after reserving a profit of 30 per cent. Does this make B. A's partner? S. CHANGE OF NAME. A. C. having lost his parents in his infancy, and under a wrong impression, was given to understand that he was christened with two christian names, A. B. A. C. having recently obtained a certificate of his baptism, has ascertained that only one christian name, "A.," is inserted in the registry. A. C. has hitherto invariably signed his name as A. B. C. in all his transactions in business. Should he not drop the second christian name, "B.," now that he has discovered he has only one; or will it invalidate any of the transactions in which he has signed his name with two christian names? L. 1. PRISONER.-FI. FA. A defendant on being arrested forthwith goes to prison, where he remains until after final judgment has been obtained against him. Can the plaintiff, forbearing to charge him in execution, issue a fi. fu. against his personal estate while he remains in custody? DECLARATION.-COSTS. W. C. When is a plaintiff entitled to charge for draft declaration, and how soon may he deliver the declaration? I think the Uniformity Act, and consequent Rules, affect this. C. B. Law of Property and Conveyancing. DOWER.-BANKRUPT. A. B. becomes possessed of freehold property by descent after his marriage, and mortgages it for a term of years to C. D. A.B. shortly afterwards becomes a bankrupt, and his assignees make sale of the property to E. F., and the mortgage is consequently paid off, and the term surrendered. The wife of A. B. now claims her dower. Is it not barred? J. P. EXECUTORY DEVISE. "I direct, limit, and appoint, give, and devise, all that my cottage D. unto and to and for the only proper use and behoof of my son A. B., (provided he shall have attained, or shall live to attain the age of twenty-four 448 Queries.- Miscellanea.-Editor's Letter Box. all her leasehold messuages, &c., A. B. gave to C. D., wife of E. F., absolutely for her sole and separate use, exclusively of her present or any future husband, and so that the same should not be liable to his debts, &c. Can C. D. mortgage the premises (she having no power of appointment), with or without the consent of her husband? And has the husband any and what interest in the premises, either in her lifetime or after decease? MISCELLANEA. ANCIENT CONVEYANCES. D. D. In the time of the Saxons the following methods of conveyance were in use: A legal transfer of lands might be made among the Saxons without any deed or writing, but in lieu thereof by certain ceremonies, as that of holding by the horn, by the arrow, and the like. Thus Edward the Confessor granted to the monks of St. Edmund's Bury in Suffolk the manor of Brok per cultellum. Nevertheless deeds were not altogether unknown to the Saxons, by whom they were generally denominated gewrite, writings. The particular deed by which an estate was conveyed was termed a land-boc, whence the land was denominated boc-land. For the ratification of deeds it was usual to have them read in the county court in the presence of the assembly, by whom it was attested by the signature of their names, as well as that of the parties. Subsequently to the Conquest the following alterations had taken place: appellation of livery of seisin, in Latin traditio, was to be done either in person or by attorney, and might be performed in various ways, as by delivering of the rings of the door, of a turf, or of any other symbol, answering to the Saxon mode of transfer, per baculum et cultellum, before mentioned. Livery was also done by publicly reading the deed, or if by attorney, by reading the letters of attorney in the presence of the neighbours, who were called together for that purpose. This solemnity, as we learn from a writer in a subsequent reign, was of such effect in passing a freehold, that a gift was imperfect without it, being considered in law as à nuda promissio. THE EDITOR'S LETTER BOX. Our communications this week have been unusually numerous, and we regret that some of them did not reach us until the arrangements for the contents of the present number were completed. The following Papers we hope to insert next week:-On the Tithe Suits to save the Prescription Act; Reply to the Defence of Imprisonment for Debt (from two correspondents); Observations on the Clauses relating to Rent in the Limitation of Actions and Law Amendment Acts. The suggestions of a Country Subscriber shall be considered on the occasion of another Series of Commentaries on the New Statutes. We announced our plan several weeks before its execution, and the hint now given is too late. We are obliged to the writer for the trouble he has taken. M. A. B. reminds us, that in our notice of the Expenses of Trials at the Assizes (p. 404), it escaped our attention to observe, "that every attorney has, on the taxation of his bill of costs, to make an affidavit of the actual expenditure of the fees to counsel, number of witnesses, and whether material; the amount of court fees; the time occupied in attendance at the assizes, and the number of causes in which he was engaged there; and that the Master, upon reading this explanatory affidavit, exercises his judgment in taxing the various items alluded to, and allows the attorney only a proportionate part of the tavern expenses, and curtails the attorney's fee for attendance according to the number of causes in which he was engaged." The form suggested by J. S. shall be given in our next number. We are informed that the cause of Lyde v. Mynn, reported p. 377, was originally heard before the Vice Chancellor, and not the Master of the Rolls. Other acknowledgments will be made in our next. The mode of conveying lands or tenements, The queries and answers of J. G., J. S., H. B., had undergone some change since the Con-T. D. R., Inquirer, E. G., J. N., C., G. H., quest, at least as far as regarded the solemni- S., A Student, and P. S. have been received. ties which accompanied this proceeding. The *We regret that the absence of one of transferring of possession of lands or tene- our learned Commentators on the Statutes will ments from the donor to the donee, which delay the completion of the Second Part till was afterwards distinguished by the Norman next week. Vol. VI. The Legal Observer. SATURDAY, OCTOBER 12, 1833. No. CLXVII. -" Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. CHANGES MADE IN THE LAW IN | session thereof; provided that such dower No. IX. THE DOWER ACT. 3 & 4 W. 4, c. 105. THE Dower Act is another of the acts found. ed on the recommendations contained in the First Report of the Real Property Commissioners, which has now become the foundation of many parts of our law. We shall shortly point out the object of the present statute, and the changes effected by it. The first alteration made is that which will enable widows to claim dower out of equitable estates. It has long been considered an anomaly in the law, that they were not dowable out of trust estates, husbands being entitled to curtesy out of them; but no rule was more firmly settled. Under the present act they will be entitled to dower as well out of equitable as of legal estates ($2). By the former law, to create a title to dower, the husband must have been seised of the lands either in fact or at law. Co. Litt. 31a. Under the present act this will be no longer necessary; it being enacted, that seisin shall not be necessary to give a title to dower, but that when a husband shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same although her husband shall not have recovered pos a Printed 2 Monthly Record, p. 359 et seq. NO, CLXVII. be sued for or obtained within the period during which such right of entry or action might be enforced (§ 3). The act having thus extended the present rights of widows as to the nature of the property on which they shall attach, proceeds to make an important alteration in them in other particulars. If dower once attaches on land, as the law now stands, it cannot be defeated in the lifetime of the husband, excepting the wife join in a fine or recovery for that purpose. By the present act, however, a husband will be enabled to alien or devise his lands free from dower; it being enacted, that no widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will (§ 4). And further, that all partial estates and in terests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower (§ 5). Under the present act, also, the husband will be enabled to hold the lands himself, and to declare either by deed or will, that they shall not be liable to dower; as it is provided that a widow shall not be entitled to in the deed by which such land was condower out of any land of her husband when veyed to him, or by any deed executed by him, it shall be declared that his widow shall not be entitled to dower out of such land (§ 6); or, when by the will of her husband, duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of 2 G |