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the costs."

Law of Vendor & Purchaser.-Points in Common Law Practice.-Notes of the Week. costs allowed, which in any action brought for | son his executors. The son received personal the recovery of the amount so certified, will estate and misapplied the same, and afterwards have the effect of a warrant of attorney to con- sold a freehold house to the defendant, who fess judgment, unless the defendant shall have had notice of the will. A legacy of 2,000l. had pleaded that he is not liable to the payment of not been paid, and the plaintiff now claimed it from the purchaser as a charge on the property We have had occasion, in reviewing the bought by him. The Master of the Rolls held, former editions of Mr. May's book, to that the purchaser was not bound to see to the notice the care and research bestowed in application of the purchase-money, and that he collecting the materials, and the skill with was not liable to make good the charge, inaswhich they are arranged. These excellent much as if the legacies were charged on the qualities, appertaining to a legal work, have real estate, the debts must also be charged been continued and diligently exerted in the thereon, and that therefore the son was able to present edition, which makes its appro- give valid receipts for the purchase-money of priate appearance at the commencement of another Session of Parliament. We commend it to all who are engaged as solicitors in the important and profitable business of parliamentary practice.

LAW OF VENDOR AND PURCHASER.

ACCEPTANCE OF CONTRACT WITHIN REA

SONABLE TIME.

the real estate. Dowling v. Hudson, 17 Beav.

248.

POINTS IN COMMON LAW
PRACTICE.

JURISDICTION TO RETURN RULES AT
CHAMBERS.

ALTHOUGH it is not the practice to enlarge UNLESS a valid acceptance be given within rules to Chambers, without the consent of both a reasonable space of time, to a written offer to parties, it is competent to the Court, in cases sell an estate, it will be treated as abandoned; of necessity, to grant rules nisi on the last day and where no step had been taken within five of Term, returnable at Chambers. Casse v. years, a bill to enforce the contract was dis-Wright, 14 Com. B. 562.

missed.

Williams v. Williams, 17 Beav. 213.

EFFECT OF CONDITIONS OF SALE ON IN-
QUIRY INTO TITLE.

If conditions of sale simply state the facts, and stipulate that the purchaser shall take such title or such interest as the circumstances detailed would confer upon him and no other, the purchaser must accept it, whatever it may be. But if they go on to state that the vendors have power to sell the fee, the purchaser is entitled to examine into the question whether the vendors have anything to sell or not, as their power so to do may have arisen from separate and independent sources. Johnson v. Smiley, 17 Beav. 223.

LIABILITY OF PURCHASER TO SEE TO AP-
PLICATION OF PURCHASE-MONEY.

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A testator ordered all his just debts and funeral expenses to be paid by his executors, and then directed the expenses of an annual mass for the repose of his soul to be defrayed out of the residue of his estates, and after giving certain legacies, he gave the residue of his real and personal estates, subject as aforesaid, to his son, whom he appointed with another per- Bristol.

Mr. Thomas Standbridge has been appointed Town Clerk of Birmingham, in the room of Mr. Wm. Morgan, resigned.

Mr. Robert Phippen, solicitor, has been elected Sheriff of the City and County of

Proceedings in Par. relating to the Law.-Superior Courts: Lords Justices.-Rolls.

PROCEEDINGS IN PARLIAMENT
RELATING TO THE LAW.

149

Mercantile Law, especially as to debtors and creditors in general, should be "much pondered upon," ere we engraft a solitary, but most important, change in our Commercial Law and in transactions of everyday occurrence.

In the House of Commons, a notice has been given by Mr. Crauford of reviving the Bill of last Session, enabling the Courts in England, Ireland, and Scotland, to enforce the judgments respectively of the other parts of the United Kingdom. This appears to be a just measure, but we shall, of course, reconsider the Bill and its several enactments when we see it in print.

WE observe that Lord Brougham has given notice of renewing his Bill to Assimilate the Law of England to that of Scotland in regard to Dishonoured Bills of Exchange and Notes, and to enable the holder to register these negotiable instruments, and in six days to issue Execution. Under the Common Law Procedure Act of 1852, a judgment may be obtained in eight days in an action on a bill or note where there is no defence. Execution, however, is mercifully stayed for another eight days. We feel sure that the noble lord does not mean to exclude With the War Bills, to pass which the just defences to actions on bills of exchange, Parliament has been convened, we have nor does he intend to overwhelm the drawer strictly no concern. To the Foreign Enlistor indorser, who may be unable instantane- ment Bill, we confess our aversion, unless ously to pay a bill which the acceptor, who it could be demonstrated as absolutely neis primarily liable, has neglected to honour. cessary: necessitas non habet legem. In There are 19 points of difference between the Militia Bill we are so far interested, the Laws of England and Scotland relating that we believe a large number of the to bills and notes. Should we not wait till younger men of the Profession will soon the Commissioners on Mercantile Law have appear as officers, not in her Majesty's made their report and published the evi- Superior Courts, but in her valiant Army,dence given before them, and weighed and not to prosecute or defend her subjects in considered the evidence and the views of the suits or actions, but to engage in the great Commissioners, prior to legislating on the warfare in which the nation is engaged. subject, especially as the proposed Bill com- We know, indeed, that many who are prises so small a part of the 19 sections of under articles of clerkship have already diversity? Moreover, the other heads of accepted commissions in the militia.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lords Justices.

Rolt, G. M. Giffard, and Karslake for the

South Wales Railway Company v. Wythes and appellants; Daniel and Babington for Mr.

another. Dec. 12, 1854.

SPECIFIC PERFORMANCE OF CONTRACT TO
CONSTRUCT RAILWAY.
BOND.

EXECUTION OF Held, dismissing with costs an appeal from the decision of Vice-Chancellor Wood, that specific performance will not be decreed of a contract entered into by the defendants to construct the works of a branch line of the plaintiffs' railway, and for the execution of a bond in a penal sum for the performance | of the works.

THIS was an appeal from the decision of Vice-Chancellor Wood allowing a demurrer to this bill, which was filed to enforce the specific performance of a contract entered into by the defendants to construct the works of a branch line of the plaintiffs' railway to Pembroke, and also to execute a bond in the penal sum of 50,000l. for the performance of the works in accordance with their agreement. Ranger v. Great Western Railway Company, 1 Rail. Ca. 1, was referred to.

Wythes; W. M. James, Rogers, and Selwyn for the other defendant.

The Lords Justices said, that the contract was not such as this Court could compel the defendants to perform, and that the appeal must be dismissed with costs.

Master of the Ralls.

Morgan v. Hatchell. Dec. 9, 1854. ATTESTATION OF DEED POLL APPOINTING

GUARDIAN TO INFANT.

Held, that the attestation of a deed poll appointing a guardian to an infant, is properly attested by the guardian and the solicitor acting in the matter, under the 12 Car. 2, c. 24, s. 8.

Ir appeared that by a deed poll dated May, 1854, Mr. Morgan, of Wexford, appointed Mrs. Boyse as guardian to his infant daughter, and that its execution was witnessed by the solicitor acting in the matter, and by Mrs. Boyse. The question was now raised upon the death of Mr. Morgan, whether Mrs. Boyse was a com

150

Superior Courts: Rolls.-V. C. Kindersley.

petent witness, under the Statute of 12 Car. 2, c. 24, s. 8.1

R. Palmer, Follett, Cairns, Hall, and Young, for the several parties.

The Master of the Rolls said, that there was no reason why Mrs. Boyse should not be a good witness to the deed. A trustee or a legatee were perfectly good witnesses to a will, as although the Statute debarred them from taking any interest thereunder, it did not affect their competency. The attestation was therefore good, and the deed a valid instrument.

Vice-Chancellor Kindersley.

Ewart v. Williams. Dec. 7, 1854. EQUITY JURISDICTION IMPROVEMENT ACT. -BOOKS USED AS PRIMA FACIE EVIDENCE.-AFFIDAVIT OF DECEASED PER

SON.

There was nothing in the books so irregular
as to preclude their being taken as prima facie
evidence, and the motion would accordingly be
granted.

Exparte Dean, &c. of Christchurch, Oxford.
Dec. 16, 1854.

RAILWAY COMPANY.-PURCHASE OF COL

LEGE LANDS.-PAYMENT OF DIVIDENDS.

On the purchase by a railway company of lands belonging to the dean and chapter of a college, the money was paid into Court. It appeared that the land was leased under two leases for 21 years, granted in 1839 and 1840, at small reserved rents, and renewable every seven years on payment of a fine: Held, that an order would be made for the investment of the funds in Court, for the payment to the dean and chapter of so much of the dividends as would be equivalent to the amount of rent actually received, and for the accumulation of the residue until further order.

Order on motion under the 15 & 16 Vict. c. 86, s. 54, for leave to use as primâ facie evidence certain books in which were entered the transactions in respect of which the suit related, and also for leave to use the affidavit Cairns appeared in support of this petition, of a person who was since dead; and held, for the investment of two sums of money which that the Act is retrospective. had been paid into Court upon the purchase, THIS was a motion for leave to use certain in the year 1853, by the Great Western Railbooks as prima facie evidence before the Mas-way Company, of certain property belonging to the petitioners, for the purposes of their ter under the 15 & 16 Vict. c. 86, s. 54,2 and also that the affidavit of a person since dead railway. It appeared that the property was might be used. It appeared that the plaintiffs, in 1839 and 1840, at a small reserved rent, and on leases for 21 years, granted respectively who were brokers, had had large transactions renewable every seven years on the payment of (and in respect of which the suit related) with a fine. The petition prayed the payment of the defendant in the purchase of shares, and that their clerk entered all the transactions of the the dividends to the dean and chapter. The Vice-Chancellor said, that the corporafirm, by their direction, in the books in question. tion was entitled to receive the full value of the Bagshawe in support; Cairns and Petersdorff, contrà. fee simple in possession of the lands sold, and The Vice-Chancellor said, that Act was re-direct the dividends to be accumulated until that the only way to secure this would be to trospective and applied to the present case.

Which enacts, that "where any person hath or shall have any child or children under the age of 21 years, and not married at the time of his death, that it shall and may be lawful to and for the father of such child, whether born at the time of the decease of the father or at that time in ventre sa mere, or whether such father be within the age of 21 years, or of full age, by deed executed in his lifetime or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner and from time to time as he shall respectively think fit, to dispose of the custody and tuition of such child or children for and during such time as he or they shall respectively remain under the age of 21 years or any lesser time, to any person or persons in possession or remainder."

2 Which enacts, that "it shall be lawful for the Court, in cases where it shall think fit so to do, to direct that, in taking the account, the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as primá facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections therto as they may be advised."

held

they could be re-invested in land, to be conveyed to the same uses as those of the land sold. In the present case, however, it would be until the termination of the period comprised in the lease. An order would therefore be made for the investment of the funds in Court, for the payment to the petitioners of so much of the dividends as would be equivalent to the amount of rent actually received, and for the accumulation of the residue until the further order of the Court, with liberty to apply.

Haggitt v. Stiff. Dec. 18, 1854.
AFFIDAVIT SWORN IN
FOREIGN COUNTRY.
-NOTARIAL CERTIFICATE.-CONSUL OR
VICE-CONSUL.

An application was refused for an order on
the clerk of records and writs to file an
affidavit which had been sworn before a no-
tary-public in the town of Geneva, Ontario
county, New York, in the United States,
to which there was a certificate of the con
sul at New York, verifying the official cha-
racter of the notary; and held it should be
taken before a consul or vice-consul, under
the 15 & 16 Vict. e. 86, s. 22.

Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood.

151

THIS was an application for an order on the of certain land. It appeared that an order had clerk of records and writs to file an affidavit in been made for an interim investment, and for this cause, which had been sworn before a no-payment of the dividends to the two trustees of tary-public of the town of Geneva, Ontario the testator's will nominatim, and that one had since died. county, New York, in the United States. appeared that there was a certificate by the English consul at New York, verifying the official character of the notary.

It

Nalder, in support, referred to the 15 & 16 Vict. c. 86, s. 22.1

The Vice-Chancellor said, the section provided that affidavits sworn in foreign parts out of her Majesty's dominions should be sworn before a consul or vice-consul, and the swearing before a notary-public only applied to places within the Queen's dominions. Previous to this Statute, the acts of a notary-public were not recognised in any way, except in certain mercantile transactions. The application must therefore be refused.

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Hemming for the railway company, applied for their costs, as the order should have directed payment to the trustees and the survivor of them, or the trustee or trustees for the time being.

The Vice-Chancellor said, that the company must pay the costs of the petition, as it was as much their fault that a proper order was not made on the former occasion.

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A solicitor, member of a firm, was appointed co-trustee with the testator's widow, and the testator had contracted before his death for the sale of certain real estate, which his widow employed the solicitor to carry into effect: Held, disallowing exceptions to the report of Master Kindersley, that the solicitor was not entitled to more than the costs out of pocket.

It appeared in this creditors' suit for the administration of the estate of the late Thomas Broughton of Boston, that the testator had appointed his wife and the defendant, Francis Thirkill White, his trustees, and that the testator, at the time of his death, had entered into several contracts for the sale of parts of his real estate, which contracts the defendant had carried out by the direction of the testator's wife. The Master Kindersley had allowed Mr. White only the amount actually paid and disbursed by him and his copartner in the business, but had disallowed all other costs, whereupon exceptions were taken to the report.

Malins and J. Hinde Palmer in support, cited Cradock v. Piper, 1 M'N. & G. 673. Bacon and C. Chapman Barber, contrà, referred to Lincoln v. Windsor, 9 Hare, 158.

Which enacts, that "all pleas, answers, disclaimers, examinations, affidavits, declarations, affirmations, and attestations of honour in causes or matters, depending in the High Court of Chancery, and also acknowledgments required for the purpose of enrolling any deed in the said Court, shall and may be sworn and taken in Scotland or Ireland, or the Channel Islands, or in any colony, island, plantation, or place under the dominion of her Majesty in foreign parts, before any Judge, Court, notarypublic, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respectively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions; and the Judges and other officers of the said Court of Chancery shall take judicial notice of the seal or signature, as the case may be, of any such Court, Judge, notary-public, person, consul, or vice-consul attached, appended, or subscribed to any such pleas, answers, disclaimers, examinations, affidavits, affirmations, attestations of honour, declarations, acknowledgments, or other documents to be used in Profession. the said Court."

The Vice-Chancellor said, that the only question was, whether the defendant, being a solicitor and appointed a co-trustee with the testator's widow, was entitled to the allowance of certain charges as solicitor incurred in the execution of the trust by him and the firm of which he was a partner. There was no doubt as to the rule, which was founded on the principle that a solicitor could not be allowed to make a profit out of his trusteeship. But for the decision of Vice-Chancellor Turner in Lincoln v. Windsor, and the finding of Master, now Vice-Chancellor Kindersley in the present case, he should have thought the dictum of Lord Chancellor Cottenham applied to such a case as the present, and he could not dispose of the case without expressing a hope that the time would soon come when the law relating to this subject would be established on some ground which would satisfy the Public and the Lord Cottenham bad materially modified the rule in Cradock v. Piper, that a

132

Superior Courts: Vice-Chancellor Wood.-Exchequer.-Bankruptcy.

solicitor, who was a trustee and a party to the cause, was not entitled to charge costs, except

Court of Bankruptcy. (Coram Mr. Commissioner Fonblanque.)

those out of pocket, by holding it did not ex- In re Shuttleworth and Sons. Dec. 18, 1854.

tend beyond the case of his acting for himself alone, nor to where he acted for a body of trustees, although he might be one; and he would have been glad to extend the modification of this rule to the present case. The exceptions must, however, be overruled.-No order as to costs.

Vice-Chancellor Wood.

Nickels v. Hancock; Bewley v. Nickels. Dec.
8, 1854.

DISMISSAL OF BILL ON MOTION FOR DE-
CREE UNDER EQUITY JURISDICTION IM-

PROVEMENT ACT.

Where the defendants are willing, that on a motion for a decree, under the 15 & 16 Vict. c. 86, s. 16, the cause should be treated as if it were a hearing in the usual way: Held, that the bill may be dismissed. THIS was a motion for a decree under the 15 & 16 Vict. c. 86, s. 16,' for the specific performance of an award.

The Vice-Chancellor having held, that neither of the bills could be sustained, dismissed the bills, the defendants being willing that the case should be dealt with in the same way as on a hearing of the cause in the usual way.

Court of Exchequer.

Oulds v. Harrison. Dec. 18, 1854. BILL OF EXCHANGE.-INDORSEE AGAINST ACCEPTOR.-PLEA OF FRAUD.-DEMURRER. A demurrer was allowed to a plea to an action by the indorsee against the acceptor of a bill of exchange, which set out that the bill was indorsed to the plaintiff by fraud and collusion with the drawer in order to deprive the defendant, to whom the drawer was indebted, of the power of setting off the debt against the bill in an action by the

drawer.

To this action by the indorsee of a bill of exchange against the acceptor, the defendant pleaded that the bill was indorsed to the plaintiff by fraud and collusion with the drawer, in order to deprive the defendant, to whom the drawer was indebted, of the power of settingoff the debt against the bill in an action by the drawer. There was a demurrer to this plea. Cur. ad. vult.

The Court said, that the demurrer must be allowed, and that the plaintiff was entitled to judgment.

Which enacts, that "upon any such motion for a decree or decretal order, it shall be discretionary with the Court to grant or refuse the motion, or to make an order giving such directions for or with respect to the further prosecution of the suit, as the circumstances of the case may require, and to make such order as to costs as it may think right."

AUCTIONEERS. RIGHT TO SPECULATE

WITH DEPOSITS.-CERTIFICATE. Semble, that auctioneers are not entitled to speculate with deposits of their customers, but that their profit consists in the commission arising from the sale of property intrusted for disposal.

Where bankrupts for some years back were aware of considerable deficiency, and had not since exercised all prudence and economy so as to retrieve their position, and never struck any balance, and were living beyond their incomes, and the bookkeeping was besides very bad: A third class certificate was only granted.

bankrupts, who carried on the business of aucTHIS, the certificate meeting of the above

tioneers.

Bagley for the assignees; Parry for the trus tees under a will, under which they had received a sum of 3,000l.

Lawrance and Linklater for the bankrupts. The Commissioner said, the first question was, whether an auctioneer was or was not entitled to speculate with deposits, or whether he was bound to consider them as deposits for which he was specifically required to account. On a strict principle of equity, auctioneers had no right to use such moneys, but a contrary opinion seemed to prevail throughout the mercantile community, which was to be regretted. But for this opinion the Court would have held, that for an auctioneer to make use of deposit moneys was, if not a breach of trust, very close upon it. This case was very different from that of bankers, part of whose business it was to employ deposits as a source of profits, whereas the profit of an auctioneer consisted of his commission arising from the sale of property intrusted for disposal. The next question was, whether the trade of the bankrupts had been prudently carried on? It appeared that so far back as 1847-8 the bankrupts were aware the firm was deficient to the amount of 4,800%, and from that time every member of the firm ought in a legitimate manner, and to exercise all pruto have been careful to conduct its transactions dence and economy so as to retrieve its position. This, however, had not been done. The bankrupts had never fairly looked their affairs in the

face, no balance had been struck, and the bankrupts were living beyond their incomes. The bookkeeping, also, had been very bad. On the carried on most improvidently, although not broad principle that the trading had been fraudulently, and that the bookkeeping was of cognise the slightest trace of unavoidable loss the worst description, the Court could not reor misfortune in the case, and the certificates must be of the third class. The causes of the failure were a rate of expenditure disproportionate to the profits, and bad book-keeping, and in these respects the younger bankrupts had been more to blame than their father. The father's certificate would be suspended for three months, and of the other bankrupts for two years.

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