254 Superior Courts: Vice Chancellor; Queen's Bench. Vice Chancellor Bruce's Court. TRUSTEES.-INSOLVENT ASSIGNEES. A settlement contained a proviso, that if a party to whom surplus rents were directed to be paid, should be discharged under the Insolvent Act, the trustees should manage the property according "to their diseretion!" Held, such party, taking the benefit of the act between the time of filing a bill for the administration of the trust, and a supplemental bill bringing the assignees before the Court, the trustees were empowered to apply the rents since the discharge, either in favor of the insolvent, his wife and children, or of the children exclusively, and also were accountable to the assignee up to the period of the discharge. By a deed of settlement certain freehold estates were conveyed to trustees, upon trust to pay to Thomas Lord certain surplus rents during the life of a person therein named. It was provided that if any commission of bankrupt should be issued against Lord, or if he should compound with his creditors for the payment of his debts, or should be discharged under the act for the relief of insolvent debtors, it should be lawful for the trustees to manage the property acccording to their discretion. On the 15th January, 1842, a bill was filed for the administration of the trust. On the 19th of May, in the same year, Lord took the benefit of the act, and in June following a supplemental bill was filed, bringing the assignees before the Court. Upon a question whether the trustees could exercise the discretion ac cording to the provisions in the deed of settlement, subsequently to the institution of the suit: Sir J. L. Knight Bruce thought, that according to the proper construction of the settlement, a discretionary power was vested in the trustees for the time being. They had a power, therefore, to apply the rents, since the discharge of the cestui que trust, either in favour of himself, his wife and children, or in favour of his children only. He declared that the settlement should be established; that the trusts thereof should be carried into effect; that the trustee should be accountable to the assignees up to the period of the discharge, and that any benefit, to which the insolvent was then entitled under the trust passed to the assignees. Lord v. Bunn, H. T. 1843. of insurance on the life of one Daniel, who had become bankrupt. The assignees of the bankrupt were defendants, and resisted the claim upon the ground of insufficiency of notice. The executor of Daniel was made a party to the suit. Hardy, who appeared for the executor, asked for costs as between solicitor and client. Sir J. Wigram, V. C.-If you are an improper party, you will have your costs, but not as between solicitor and client. Queen's Bench. ARREST.-DOMICILE. A judge has power, under the 1 & 2 Vict. c. 110, s. 3, to make an order for arresting a defendant, where there is a legal debt, in this country, and where the defendant happens to be in this country, and is about to quit it. It is not necessary for the making of such order that the defendant should be about to go into foreign parts; nor is he exempt from arrest, because his real domicile is in Ireland, and he is about to return thither. It is not usual to grant costs against defendants in imprisonment cases. The defendant had accepted a bill of exchange for 800., with a memorondum at the bottom that it was payable at the Caledonian Insurance Company, Edinburgh. He was himself a resident in Ireland, where he had accepted the bill, which had been previously drawn in Scotland, and was given on account of the Company. The bill was dishonoured. The plaintiff afterwards came to London, where, upon an order of a judge obtained on the usual affidavit, according to the provisions of the 1 & 2 Vict. c. 110, s. 3,a he was arrested. Mr. Kelly had obtained a rule to shew cause why this order should not be rescinded, and the defendant discharged from custody. Mr. Bules shewed cause.-This is, in law, an English debt, and the defendant cannot set up his residence in Ireland as a ground of exemption from arrest. It is not a departure from the United Kingdom, but a departure from the jurisdiction of the Superior Courts at Westminster, that gives the judge the power to direct an arrest. Lord Eldon, in Howden v. a By which it is enacted, "That if a plaintiff in any action in the Superior Courts at Westminster, in which the defendant is now liable to arrest, shall by affidavit shew to the satisfache has a cause of action against the defendant tion of a judge of one of the said Courts, that to the amount of 201. or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be forthwith apprehended, it shall be lawful for the judge to direct that such defendant shall be held to bail for any sum not exceeding the amount of the debt or damages." Superior Courts: Queen's Bench: Queen's Bench Practice Court. 255 Rogers, so construed the powers of the Court | about to leave England with intent to defraud of Chancery with reference to a defendant his creditors, there might have been some whose domicile was in Ireland, but who had foundation for doubting whether there had come over to this country on business. The been sufficient in this case to justify the exersame principle must be acted on in the con- cise of the discretion of the learned judge. struction of this statute. The question of do- But as there are no such words, and it is clear micile has nothing to do with the matter. that the judge has a right to exercise a discretion in granting or refusing an arrest, according as he believes that the party is or is not about to quit the jurisdiction of the Courts at Westminster, I am of opinion that the order made in this case is right, and that the rule must be discharged. Mr. Kelly and Mr. Whateley in support of the rule. The real question is, whether, where a person is resident in Ireland, and subject therefore to process there, and his property is there, and his friends, who would become bail for him if he was arrested, are there, a judge or a court here can be called on to exercise a discretion, and direct his arrest, because he happens for a temporary purpose only to come to England. Ireland is part of the United Kingdom, and the act was clearly meant to apply only to persons going to foreign parts, where a British subject might have either no remedy at all, or an insufficient remedy against bim. Again, it cannot be said that he is about to leave this country for the purpose of evading his creditors, where he is, as in this case, merely returning to his settled place of domicile, and that place of domicile is within the United Kingdom. It ought to be shewn that the defendant was seeking to evade his creditors, before he can be put to the inconvenience of an arrest. Lord Denman, C. J-It is necessary to look to the terms of the act of parliament, and see what is the jurisdiction which we are bound to exercise. The statute requires that before a defendant can be arrested there shall be shewn on affidavit, to the satisfaction of the judge, probable cause for believing that the defendant is about to quit England, unless he is forthwith apprehended. We are in this case asked to say that the power thus given to the judge must be restricted in its exercise to the cases of persons going abroad, that is, into parts not within British jurisdiction. I see no reason for so restricting it. Where a party is going out of the jurisdiction of the Superior Courts at Westminster, he may be arrested, although he may be going to a place subject to the British Crown. I should not more readily exercise the discretionary power which the act gives me, if the defendant was going to France, than if he was going either to Calcutta or to any of our colonies where British judges preside, and British law is administered. Whether the defendant is a resident here, or whether he is only a visitor, and is returning to his usual domicile, makes no difference in the matter. If the plaintiff thinks he is going out of the jurisdiction of the Courts at Westminster, the plaintiff has a right to apply to a judge, and the judge may, in his discretion, upon the affidavits laid before him, grant or refuse an order for an arrest. Mr. Justice Williams.-If the act had con tained any restrictive words, such as have been supposed in the argument, namely, that the party was only to be arrested when it was made out to the satisfaction of the judge that he was b 1 Ves. & B. 129. Mr. Justice Coleridge.-Two things must concur to give the judge jurisdiction. First, there must be a legal debt; and next, the person sought to be arrested must be some one who could have been arrested before the passing of this act of parliament, and who must appear, to the satisfaction of the judge, to be about to leave this country. Having the jurisdiction, the judge may exercise it or not, at his discretion. He is not restrained by any consideration of what is the permanent or the temporary domicile of a defendant, or whether he is only going to Ireland, or going into foreign parts. It is enough if he is satisfied that there is a legal debt in this country, and that the defendant is here, and will quit the jurisdiction of the Courts here, if not restrained from so doing. Rule discharged. Application was made for costs. Per Cur.-No; it is not usual to give costs against defendants in imprisonment cases. Lamont v. Eiffe, H. T. 1843. Q. B. F. J. Queen's Bench Practice Court. DISTRINGAS.-ATTEMPTS TO SERVE DEFEN DANT WITH WRIT OF SUMMONS. Where unsuccessful efforts had been made to serve the defendant with a writ of summons at his dwelling house, but in answer to an application to his wife, she had written a letter, requesting that any communications for her husband might be sent to a certain house which she pointed out, and a letter was sent there, addressed to him, containing a copy of the writ, and on a subsequent occasion, the servant at that house stuted to the deponent, who had there gone in order to seek the defendant to effect personal service, that the defendant had fetched away all letters for him, but did not reside there, and it was sworn that the defendant kept out of the way to avoid service, the court granted a distringas against him to compel an appearance. Mellor moved for a distringas. It was sworn that before the issuing of the writ of summons in this action, the plaintiff's attorney wrote to the defendant, to request him to name an attorney who would accept service on his behalf; that no answer was given to this letter; that subsequently, the writ having issued, unsuccessful efforts were made to serve the defendant at his residence, and that there 256 Superior Courts: Q. B. Practice Court.-Court Papers.-Editor's Letter Box. Williams, J.-You may take a rule nisi; the service to be effected in the same way. Rule nisi.-Doe dem. Granley v. Roe, H. T. 1843. Q. B. P. C. upon a letter was written to Mrs. Thompson, said that they did not know where Mr. Long the defendant's wife, informing her of the pro-lived, nor where he was. Copies of the declaceedings; that in answer to that letter, she re- ration and notice were thereupon served on the quested that all communications for her gardener, on the sister in law, and on Mr. Elgie, husband might be sent to a house which she who was supposed to be the attorney of the pointed out, under cover to a Mr. F.; that tenant, and a copy was also affixed to the prethereupon on the 7th January, a letter was mises. written to the defendant, inclosing a copy of the writ of summons; that on the 17th January the deponent had called at the house in question with a view of personally serving him with a copy of the writ; that the servant at that house stated to the deponent, that the defendant did not live there, but only called occasionally for letters, and that he had last called on the 14th January, when he had received all letters then lying there for him. These facts, it was submitted, brought home a knowledge of the proceedings to the defendant; and as it was sworn that it was believed he was keeping out of the way to avoid service, the court would grant the writ. Williams, J.-The writ may go. SERVICE IN EJECTMENT. Where the tenant had quitted the premises Peacock moved for judgment against the casual ejector. The deponent to the affidavit on which the motion was made, stated that on the 7th January, he had gone to the premises in question in the cause, for the purpose of effecting service of the declaration and notice in ejectment on one Long, the tenant in possession; that he was informed by a sheriff's officer who was in possession, and by a gardener, residing in a cottage on the premises, that Mr. Long had gone away three weeks before, and that every thing belonging to him had been seized and sold under a distress for rent; that on his going away, he had left a bailiff in possession, who, however, on the 24th December, had also gone, leaving the keys with the gardener, and saying that he was going to Norfolk to see his friends, but should return in a few days, but that he had not yet returned; that the residence of Mr. Long was not known, and that it was believed he was keeping out of the way to avoid his creditors, but that he had been seen at the house of his sister-in-law, in Hastie Row, Islington, where it was believed his family was. The deponent had therefore gone to the house named, and had seen the sister in law, and daughter of Mr. Long, who Court of Queen's Bench. 23d January, 1943. This Court will, on Wednesday, Thursday, and Saturday, the 1st, 2d, and 4th days of February, and on Tuesday, the 7th day of February, and the four days next following, hold Sittings, and will proceed in disposing of the business in the Crown Paper, in the Special Paper, and in the New Trial Paper, and in giving judgment in cases that may then be pending. By the Court. Erratum.—In Mitford v. Reynolds, ante, pp. 200, 217, expunge the first head. The judgment shews that the Lord Chancellor gave no opinion on the validity of the bequest for the mausoleum, but supposing that bequest to be bad, still the bequest to the native inhabitants of Decca was good. The Legal Observer. MONTHLY RECORD FOR JANUARY, 1843, "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. HISTORICAL OUTLINE OF THE LAWS | duties of the earl, and the judicial ones of the OF ENGLAND. [Continued from p. 180, ante.] WILLIAM 1.—1066 to 1087. WILLIAM, in the fourth year of his reign, called his barons together at Berkhampstead, and selected twelve men from among the English who were learned in the law, to make a collection of such laws as were in force at the time of the Saxon kings. This collection having been made, he called a general council, and confirmed the laws of Edward the Confessor, making such additions and alterations as he thought proper. In 1076, he established the feudal law, by which England was divided into 700 baronies, the tenants whereof were called tenants in chief, who subdivided them into 60,215 knights' fees, amongst their vassals or knights. The depopulation of whole districts to make room for the royal forests, and the introduction of the forest laws of the continent, restrained in the country all rural pleasures and manly recreations; and in cities and towns all companies were obliged to disperse, and fire and candle to be extinguished at the sound of the melancholy curfew-bell. The military service, under the Normans, was to be performed as well abroad as at home. Among the Saxons it was confined to the defence of the realm. The new grants were hereditary, whereas they had formerly been only for life. The government of the counties was entrusted to the earls, with a similar jurisdiction as in the time of the Saxons. Officers of justice.-The sheriff, then also called vice comes, performed the ininisterial VOL. XXV.-No. 764. alderinan. The offices of the latter were then confined to the administration of justice in the various cities and boroughs. Courts.-Justice was administered in the early part of this reign, very similarly to the manner in which the same was done at the time of the Saxons. The Scyregemote was called the comitatus, or county court; the hundred gemote, the hundredum; and the halgemote, the court baron, with regard to its civil jurisdiction, and with regard to its criminal jurisdiction, court leet. The two former of these courts were sometimes summoned at the pleasure of the king. Ecclesiastical jurisdiction.―The most important change of judicature effected by William, was the separation of the ecclesiastical from the secular jurisdiction. It is probable that the bishop's consistory was effected about this time. Trial by jury.-This mode of trial is commonly dated from this reign. In a cause with regard to some lands between Gundult, Bishop of Rochester, and Pichot, the sheriff, this mode of trial was resorted to; we do not hear, however, of this having been done again in civil suits until the reign of Henry II., when it became a regular part of our jurisprudence. Chancery and Exchequer Courts.-In 1079, William established the Courts of Chancery and Exchequer, and authorized justices of the peace. Pleadings in French.-The introduction of the French language in our courts of justice was effected by William. Domesday book.-A survey was made about the year, 1081, of the various lands of the kingdom, for the purpose of determining those which belonged to the crown; it is, therefore now always resorted to on all subjects of ancient demesne. R 258 Historica Outline of the Laws of England.—Removal of the Courts. Seals and sealing of deeds are said to have | ror deemed it prudent to comply. Moreover, been first introduced by the Normans, but they possessed all the little learning of the there are some few earlier instances of seals times. having been used. WILLIAM II.-1087-1100. In this reign the first decision of quarrels by single combat took place. Westminster Hall was built in this reign. The kings and great men at this period could neither write nor read; they signed deeds by making a cross as a mark. Taxes were arbitrarily raised in this reign. HENRY I. 1100-1135. This king granted the famous charter of liberties, by which the laws of Edward the Confessor were confirmed, and by this, the king professed to give up the feudal grievances relating to marriages, wardships, and aids. He also abolished the curfew. He abolished moneyage, imposed by the Normans, to prevent the renewal of the coinage; and the payment of licenses for the marriage of a man's daughter. A change was made in this reign with regard to the descent of estates, the principal one being directed to go to the eldest son, and the rest to be equally divided among them all. A restriction was laid on the alienation of inheritable lands, which, however, did not extend to such as were obtained by purchase. The causes, or suits in court, were now called placita. The same distinction was made in this reign with regard to redeemable and irredeemable crimes, as in the time of the Saxons, with the exception, that stealing was now, first made punishable with death, but with the power of being pecuniarily compensated for. With regard to the courts of justice, and their officers, and the mode of trial; they appear, in most cases to have been continued, nearly the same as before the conquest; the feudal burdens were much lightened by Henry I., who was desirous of conciliating his English subjects as much as possible. STEPHEN. 1135-1154. 2. The introduction of the forest laws, whereby the slaughter of a beast was as penal as that of a man. 3. Narrowing the jurisdiction of the county courts, and extending the power of the King's justiciars, to all kinds of causes, and conducting legal proceedings in the Norman language. minal questions of fact, in the last resort. 4. The trial by combat in all civil and cri 5. Engrafting on all landed estates the fiction of feudal tenure. The next reign,-that of Henry the 2d.-is more full of legal matter than the preceding ones, and we must defer it for the present. It may be proper to state, that the materials of this outline are collected from the following works:-The Histories of the English Law by Mr. Reeves, Mr. Crabb, and Mr. Flintoff; the Commentaries of Mr. Justice Blackstone; Hume's History; and an unpublished work of Mr. Stacey Grimaldi, called, "A Synopsis of English History;" which we should like to see enlarged and published. OUR readers are aware that in our last and present volumes, besides giving a summary of the arguments for and against the removal of the Courts, we have stated the substance of the testimony of the Judges, both of the Equity and Common Law Courts,—that of the Masters in Chancery and Common Law,— the Registrars, and other officers ;—and having entered on the evidence of the Equity Counsel, we now proceed to complete that class of wit In this reign, there were two charters gran-nesses, and we purpose to conclude with the ted; the one confirming that of Henry, and the other enlarging the privileges of the clergy. The civil and canon laws were first introduced in this reign, and appeals made to the pope, as a branch of the canon law. The turbulent and unsettled reign of Stephen, afforded but little opportunity for legislation. He promised to redress the grievances of the forest laws, but left them nearly as he found them. We shall here sum up the chief alterations effected in the law during the first four kings of the Norman race. 1. The separation of the ecclesiastical courts from the civil. This was effected to gratify the popish clergy, who endeavoured all over Europe to exempt themselves from the secular power, and with whose demands, the conque evidence of Common Law Counsel and Solicitors. EQUITY COUNSEL. William Wright. You are a barrister practising in the Court of Chancery?-I aın. Will you be good enough to favour the committee with any observations which have occurred to you upon the subject of the present sites of the courts, or the inconveniences which result either from their situation or construction ?-I think that holding the courts of equity during term at Westminster is very inconve nient; because by far the greatest part of the business of the kingdom is transacted in offices |