360 List of Sheriffs, Under-Sheriffs, &c.—Points in Common Law Practice. AFFIDAVIT OF SEARCH FOR APPEARANCE, WHEN TO BE SWORN.-15 & 16 VICT. C. 76, s. 24. A motion for a distringas to compel the appearance of the defendant to a writ of summons was refused where the affidavit of his non-appearance had been sworn four days previously. Drinkwater v. Mills, 12 C. B. 452. SERVICE OF PROCEEDINGS IN EJECTMENT. -15 & 16 VICT. c. 76, s. 170. A copy of the declaration and notice in ejectment was affixed on the outer door of premises which were shut up and abandoned, another copy was served on the tenant's daughter at his last known place of abode, another copy on the house agent employed by order to obtain leave to proceed under s. 17. him to let the premises, and another copy on And see Hooker v. Townsend, 1 Hodges, 204; his attorneys, who had acted for him in an action of debt, and in which a Judge's order Spence v. Barker, 8 Dowl. P. C. 296. had been drawn up by consent for payment of The proceeding by distringas to compel appearance is abolished by the 15 & 16 Vict. c. 76, s. 24, but search must still be made in the debt and costs in both actions, and on de- JUDGMENT AS IN CASE OF NONSUIT.—AF fault for liberty to proceed with the action of ejectment. The service was held sufficient. Doe d. Laundy v. Roe, 12 C. B. 451. FIDAVIT OF DEFAULT IN PROCEEDING The affidavit in support of a motion for judgment as in case of nonsuit stated that issue was joined and notice of trial given, 'but that the plaintiff did not proceed to trial this cause "in pursuance thereof: Held, Under the 15 & 16 Vict. c. 76, s. 170, service of the writ of summons, which is substituted for the proceeding by declaration and notice, is to be made in the same manner as an ejectment has been heretofore served, or in sufficient, and that the negativing the fact of the plaintiff having since proceeded to trial such manner as the Court or a Judge shall should come from the plaintiff. Edgar v. order, and in case of vacant possession by posting a copy of the writ on the door of the Halliday, 1. L. M. & P. 367, has been exBlackman v. Asplin, 12 pressly overruled. dwelling-house or other conspicuous part of C. B. 453. the property. Judgment as in case of nonsuit is repealed by the 15 & 16 Vict. c. 76, s. 100, and the Henry Seymour Westmacott, Pwllheli Abbott, Jenkins, and Abbott, 8, New-inn. Edw. Williams, Oswestry (A. U., Rd. Williams, James William Dean, Bloomsbury-square. Vale-street, Denbigh Arthur Troughton Roberts, Mold Griffith Williams, Dolgelly Robert Devereux Harrison, Welchpool jury only gave nominal damages: Held, that the plaintiff was, notwithstanding, entitled to his full costs under the 13 & 14 Vict. c. 61, ss. 11, 12. Glynne v. Roberts, 9 Exch. R. 253. practice with respect to judgment for default the sheriff, he appeared by counsel, and the in not proceeding to trial, is either, 1st, to obtain a rule under s. 99, for the costs of the day, and which may be drawn up on affidavit with out motion; or 2nd, to give the 20 days' notice under s. 101, to the plaintiff to try, and after suggesting on the record his default, to sign judgment for costs; or 3rd, to take down the cause for trial by proviso, under s. 116. LAW INSURANCE SOCIETIES. To the Editor of the Legal Observer. THE LAW UNION. SIR,-It has often been a matter of observation among solicitors, that in the Profession of the Law there exist many objectionable monopolies. A young practitioner, whatever may be his ability or acquirements, stands but little chance, him-while the great firms, through the aid of -he finds every door to practice shut against powerful and influential companies, of which "FULL costs and charges," in the Lands' Clauses' Consolidation Act, 8 & 9 Vict. c. 18, s. 126, payable by the promoters of an under-they have been fortunate enough to become taking, when the right of any estate, interest, or charge shall have been disputed by them and determined in favour of the party claiming the same,-construed to mean costs as between attorney and client. Doe dem. Hyde v. Mayor, &c., of Manchester, 12 C. B. 474. solicitors, have the exclusive use of large capital, and so draw to themselves all the business that the patronage of immense funds virtually commands. I have frequently thought of this as a great grievance and unfair advan tage, especially when it is considered how large a portion of those funds is supplied by the industry of the general body of solicitors, to be afterwards monopolised by a score or more fortunate members of the Profession. I freely admit that I could never find out the practical remedy for this evil, but I think it has Sir William Foster, Bart., of Norwich. I learn been discovered by a distinguished solicitor, from the resolutions passed at a meeting, of which he was the chairman (and a copy of 362 Queries of Articled Clerks.-Selections from Correspondence.-Notes of the Week. which I received by post), that it is contemplated to establish a company by the name of "The Law Union Fire and Life Insurance Company," and that every respectable solicitor being a shareholder, will, under proper regulations, be allowed to act for the company in transacting any approved mortgaged securities introduced by him. Surely this is quite fair and just, and must be a great boon to the Profession, and I in common with hundreds shall look forward with the greatest interest for the prospectus. A SOLICITOR. SELECTIONS FROM CORRE- sCOTCH LAW OF MARRIAGE AND DIVORCE. IF "A Scotch Advocate," in your Number of 25th February, had obliged your readers by stating the Law as it at present exists on this subject, he would have conferred an obligation on them. I have little doubt, like that of England, of its being in a very unsatisfactory state. I have no pretension to the knowledge of Scotch Law, but I do know that a gentleman of large landed estate, not many miles from the [We refer our Correspondent to the Pro-"modern Athens," acted as is stated in your spectus, which will be found in our Advertising columns, and we must admit that it is well worthy of the attention of solicitors.-ED.] QUERIES OF ARTICLED CLERKS. MODE OF SERVICE.- HOLDING PUBLIC OFFICES. AN articled clerk holds on his own account the several offices of clerk to the board of guardians, superintendent registrar, and agent to an insurance office. He devotes most of his time to his master's business, but attends the meetings of the board of guardians. Will this be a good service under articles? X. Number of February 18th, and that, under the threat there mentioned, his daughter was induced actually to sell her own estate to satisfy the father's debts; but whether she acted under legal advice or not I am altogether ignorant. She was, it seems, grossly deceived by the misrepresentations of her father, and suffered in CIVIS. consequence. LAW OF DISINHERISON. In conversing lately with a French advocate, he expressed the utmost astonishment at our barbarous law which could enable a father totally to disinherit his child; he designated this power as the most cruel and oppressive that can be imagined. total exclusion of the son, a barrister. A recent instance has occurred in my practice where a father, possessed of considerable [The Examiners, we believe, do not object to landed estates in three counties, leaving the articled clerks holding offices usually filled by whole to a daughter, charged with an inconattorneys, and the clerkship to a board of guar-siderable legacy to another daughter, to the dians and superintendent registrar are of that class. An insurance agency may be doubtful, though often held by solicitors. However, the service would be rendered perfect by continuing with the attorney for such length of time as may have been occupied in other than professional business.-ED.] INTERVAL IN SERVCE.-MILITIA OFFICER. I am by no means an advocate of the French law, which gives two shares to the eldest child and the remainder to the others in equal proportions, but I trust that a law will pass to prohibit a father from acting in so cruel and unnatural a manner as I have mentioned. NOTES OF THE WEEK. LECTURES AT THE LAW SOCIETY. A.. MR. WILSON, the eminent conveyancer, Would an articled clerk prejudice his ad-met his class in the Hall of the Law Society, mission as an attorney by accepting a commis- last Wednesday, for the purpose of answering sion in the militia, where, with his master's any doubts which might be suggested arising positive and express consent, joining the regi-out of his lectures. The class is upwards of ment during the three weeks' period of training? Would it be advisable for the clerk to serve a period at the termination of his articles equal to the time he may be thus engaged? G. [The Court would probably consider the service to be sufficient, if the absence in each year were only three weeks, on the ground that the attorney may permit a few weeks' holiday by way of relaxation; and at all events the interval might be made up by subsequent service.-ED.] 200, and a considerable proportion attended on this occasion. The points of inquiry which were put by the students, did them much credit: they were important, and every one of them drew forth a clear and masterly exposition of the state of the Law and the Practice of Conveyancers on the several questions brought forward. Errors of practice were noticed, and many doubts in the Law satisfactorily explained. Several of the members of the Society were present, who appeared much interested in the discussion, and the meeting, the first of the kind, must be considered as highly satisfactory. Superior Courts: Lords Justices.-Master of the Rolls. RECENT DECISIONS IN THE SUPERIOR COURTS. Lords Justices. In re Blakeley, exparte Harvey and another; exparte Springfield. Jan. 27, 30, 31; Feb. 28, 1845. BANKRUPT.PROOF AGAINST ESTATE ON JOINT PROMISSORY NOTE.-DEED OF ARRANGEMENT.-RELEASE OF SURETY. A bankrupt had joined in promissory notes with his son in respect of debts due from the latter to the appellants, and it appeared that afterwards the son assigned his property to them in trust for the benefit of his creditors: Held, allowing an appeal from Mr. Commissioner Fane, that such deed did not operate as a release of the father as surety, and the appellants' claim in respect of the notes was admitted against the father's estate. THESE were appeals from the decision of Mr. Commissioner Fane disallowing the claims of proof of Messrs. Harvey and Hudson and Messrs. Springfield against the estate of the defendant, a silk mercer at Norwich, in respect of debts as surety for his son, a bankrupt, on their joint promissory notes. It appeared that Mr. Harvey had executed a deed in March, 1853, whereby the son had assigned his property to Messrs. Harvey and Hudson and Messrs. Springfield in trust for the benefit of his creditors, and the Commissioner had disallowed their claims on the ground such deed operated as a release. Swanston, Rolt, and Bazalgette in support; Daniel and Aspland for the assignees, contrà. Cur. ad. vult. The Lords Justices said, that the evidence, which had not been adduced before the Commissioner, was very conflicting as to whether the father had assented to the execution of the deed. The proposition was reasonable in itself, and on the materials before the Court must be decided to be true. The son had been made bankrupt on the deed, and the arrangement was never completed nor executed by any other creditors, and it was clear the petitioners would not have executed if the father had been released from the promissory note. It ought not, therefore, to be set up against their claim, and the appeal would accordingly be allowed. Wood and another v. Midgley. Feb. 28, 1854. CONTRACT FOR PURCHASE OF HOUSE.PAYMENT OF DEPOSIT.— MEMORANDUM STATUTE OF FRAUDS. SPECIFIC PERFORMANCE. IN WRITING. ww 363 ment, held, in a suit for the specific performance of the contract, and allowing a demurrer on appeal from Vice-Chancellor Stuart, that there was no sufficient_contract in writing, in compliance with the requirements of the Statute of Frauds. THIS was an appeal from the decision of Vice-Chancellor Stuart, overruling a demurrer setting up the Statute of Frauds to this bill for into in May, 1853, by the defendant to purthe specific performance of a contract entered chase a public-house at Bermondsey for 1,000l. It appeared that the defendant had agreed to the terms of the contract for the purchase, and had paid a deposit of 50l. to the plaintiffs' auctioneer and agent, who signed a memorandum stating it was in part payment of the purchasemoney, the terms to be expressed in an agreehad subsequently refused to sign the contract. ment to be signed when prepared, but that he Malins and Cairns in support; W.D. Lewis, contrà. The Lords Justices said, the Statute of Frauds required that a person purchasing, or be bound until he had assented in writing to intending to purchase, real estate, should not the completion of the contract, and that the demurrer must therefore be allowed, with costs, and the decision of the Court below be re versed. Master of the Ralls. Hutchin v. Morris. March 2, 1854. SALE OF PROPERTY BY AGENT OF TRUSTEES FOR SALE.- - PURCHASE BY AGENT AND SUBSEQUENT SALE AT ADVANCED PRICE. The father of infant defendants, who were entitled to a moiety of certain property with the plaintiffs, devised in trust for sale, had prevailed on the trustees and the plaintiffs' mother that he should conduct the sale, and he had informed a person who had applied in consequence of an advertisement that the property would not be sold for the sum he offered. He afterwards purchased for a less sum, and then negotiated a sale to such person for 1,000l. more than he gave: Held, that he was liable as a trustee to account for the whole of the purchase-money. THE trustees for sale under the will of a testatrix of certain freehold and leasehold property in Monmouthshire held in trust for the The defendant paid a deposit of 50l. to the plaintiffs and the defendants, had advertised plaintiffs' auctioneer and agent, who signed the sale accordingly, and received in reply an a memorandum stating it was in part pay-application from Mr. Smedley, who eventually ment of the purchase-money of a public- offered to purchase for 2,800l. The defendhouse-the terms to be expressed in an ants' father then obtained from the plaintiffs' agreement to be signed when prepared. On mother and the trustees authority to manage the defendant's refusal to sign the agree- the sale, and he stated to Mr. Smedley that the 364 Superior Courts: Rolls.-V. C. Kindersley.-V. C. Stuart. property would not be sold at the price offered, a sufficient description of the plaintiff's interest and he informed the trustees and the plaintiffs' mother that the negotiations had gone off. He afterwards, however, obtained the consent of the trustees for a purchase to himself for 2,600l., and the day after he had informed Mr. Smedley that the price required was 3,600/., at which Mr. Smedley agreed to purchase and had accordingly paid. This suit was instituted on behalf of the infant plaintiffs LEGACY.-MISDESCRIPTION Of legatee. for a declaration that the whole 3,6007. should be paid to the trustees. in the property within the Statute of Frauds, and besides, the misrepresentation of the plaintiff as to the house being substantially and well built did not entitle him to relief in equity. The bill would be dismissed, with costs. Roupell and Fooks in support; R. Palmer, Cox, and Jessel for the defendants; Karslake for the trustees. The Master of the Rolls said, that the defendants' father was acting as trustee for the sale of the property, and that there must be a decree for the plaintiffs as asked for. Vice-Chancellor Kindersley. Cox v. Middleton. Feb. 20, 1854. SPECIFIC PERFORMANCE OF CONTRACT.- It appeared in a suit for specific performance, In re Meen's Trust. March 3, 1854. EVIDENCE OF DEATH OF LEGATEE.- Bequest of legacy to George W., son of the A TESTATRIX, by her will, gave a legacy of 500l. to George Wheeler, son of her brother Thomas Wheeler, but it appeared that George Wheeler was the son of her brother John, and not of Thomas, who had no children. It appeared also, that George survived the testatrix, but that, as was proved by the evidence of two sailors who were with him at the time, he was drowned off Calcutta. This petition was now presented by his representives for payment of the sum which had been paid in under the 10 & 11 Vict. c. 96. Baily and Walford in support; Hitchcock for the trustees. The Vice-Chancellor made the order as prayed-the trustees' costs to come out of the fund. Vice-Chancellor Stuart. Barrett and another v. Ring and others. Jan. 23, 1854. Ir appeared that the defendant had entered into negotiations with the plaintiff for the purchase for 6007. of a leasehold house and stable SPECIFIC PERFORMANCE OF CONTRACT BY in Wellington Square, Chelsea, but that he had failed to attend the appointment to execute the lease, and that his solicitor had, in answer to a letter from the plaintiff's threatening proceedings, stated his intention to appear. The parties afterwards met in a street in Chelsea, when the defendant signed the following memorandum in pencil in the plaintiff's pocketbook:-"Mr. Middleton agrees to pay 6251. for the cottage and stable, Mr. Cox paying the expenses of the lease held by Mr. Smith;" and a person named John Newman attested the same. It also appeared that the plaintiff had represented the premises as being substantially and well built, but on a survey this was ascertained not to be the case. The defendant then refused to complete, and this bill was filed. Elmsley and Southgate for the plaintiff; Chandless and Haldane for the defendant. The Vice-Chancellor said, that there was not TRUSTEES OF TURNPIKE ROAD FOR SALE The trustees of a turnpike road contracted for the title. THIS was a suit for the specific performance of an agreement, dated August, 1852, and entered into by the trustees of the Junction Turnpike Road from Kentish Town to Upper Holloway, appointed under the 3 & 4 Wm. 4, c. c., for the sale to the plaintiffs, who were lessees under the Corporation of the Sons of the |