New Practices of the Equity and Common Law Courts.-Notes of the Week. 285 A rule nisi for a new trial was afterwards | mon Law. The recent Acts, and the Orobtained,on an affidavit made by the defendant's ders and Rules founded on them, demand attorney, which stated that he had regularly publications of this kind; and we believe attended the assizes from their commencement that the gentlemen to whom we have enuntil 12 o'clock on Tuesday, the day on which the cause was tried: then hearing of the dan- trusted them, are fully qualified to render gerous illness of a relative, he returned to them useful and complete. They are intown, having left a brief for the defendant in tended to be wholly founded on the late the hands of another attorney, with directions alterations, and to serve not only as a sumto deliver it to counsel, if it should become mary of the present Practice, but as a Supnecessary: that a sum of 10. had been paid plement to all preceding works of the kind. into Court, with notice of a set-off: that the For this purpose they will be rendered as reason for not earlier delivering the brief that at other previous assizes, after his brief concise as possible. They will also be mohad been delivered, the plaintiff withdrew the derate in price. So fully do we see the record; and that the defendant had a good necessity for works of this nature, that we defence on the merits. would, if we were able, at once present them to the Profession. As it is, we hope to publish one of them within three weeks from the present time, and the other shortly was, On shewing cause against this rule, it was contended that the defendant should have been prepared with his counsel and witnesses throughout the assizes. In not doing so, he had been guilty of gross negligence, from the consequences of which the Court ought not to relieve him. The Court was of opinion that the proceedings at the assizes differed from those in London. In the latter place a list was made out every day, and it was necessary and right that persons having causes in that daily list should be prepared and in attendance throughout that day; but at the assizes it was different. There sometimes eighty or a hundred causes appeared in the list to be tried. It would be too much to expect that all the parties in that huge number of causes should be prepared for trial on the first day, thus subjecting themselves to an enormous consequent expense, without any advantage. At the time the cause was taken, namely, when it was thirty off in the list, the defendant was not bound to have delivered his brief. The present rule must therefore be made absolute, the costs of the first trial to abide the event of the second. Rule accordingly.—Aust v. Fenwick, M. T. 1833. Excheq. NEW PRACTICES OF THE EQUITY SINCE the commencement of this work we have humbly endeavoured to put our Readers in possession of every thing which they might need as practitioners; and our endeavours have met with the very general approbation of the Profession. We have great opportunities of knowing its wants and wishes, and it has been our anxious endeavour to attend to and fulfil them. It is with this view that we have for some time projected two small volumes,—one on the Practice of the Court of Chancery, the other on the Practice of the Courts of Com afterwards. "Present EDMUND HENRY LUSHINGTON, Esq. Joseph Jekyll, Esq. Sir JAMES SCARLETT, Knight. Sir ALEXANDER CROKE, Knight. Sir ROBERT BAKER, Knight. JOHN WYATT, Esq. The Hon. Sir GEORGE ROSE, Knight. The Hon. CHARLES EWAN LAW. PHILIP COURTENAY, Esq. LEGACY.-CONSTRUCTION. P. 112. From the statement of this query, there is nothing in the will itself evincing the testator's intention to restrain the gift to any children of evidence adduced in support of the same, and the arguments of the Learned Counsel thereon; it is unanimously resolved, that the Bench do not see any sufficient reason to alter the Resolution of the Bench, com-T. M., to the exclusion of others by a subsemunicated to Mr. HARVEY by the Treasurer of the Society, on the 13th November, 1821, against his application to be called to the Bar. quent marriage: and though, under the circumstances, it may perhaps be inferred that alone regarded by the testator, it would be such children as he might have by S. M. were superfluous to contend that the words made use of by him were not in favour of after-born children; nor am I aware of any authority in support of such a construction. It has, however, been determined, that a period being displace, no child afterwards born is entitled. tinctly fixed when the distribution is to take Godfrey v. Davis, 6 Ves. 43. And Lord Eldon subsequently said, "The Court goes as far as it can to comprehend every one until one attains the period at which that one can take a share." Whitbread v. Lord St. John, 10 Ves. 154. Now a bequest of a fund to all the children of A., " to be paid at his or their age or ages of twenty-one," was held to be divisible among those only who were in esse when the eldest attained that age. Andrews v. Partington, 3 Bro. C. C. 401. See also Prescott v. Long, 2 Ves. jun. 690. Hoste v. Pratt, 3 Ves. 730. Applying these principles to the present case, the question is, are there any words in the will fixing the time when a share is to vest or become payable? Assuming this to be the fact, we may, I think, conclude that the children of T. M. by S. M. in esse at such period, will be entitled, to the exclusion of all others, whether by the same or a subsequent marriage. MANCUNIENSIS. Law of Attorneys. ATTORNEYS' BILLS.— TIONS. In Jones v. Tye, 1 Dowl. 181, an objection was taken, that the defendant being in custody on mesne process, the plaintiff had no right to issue execution against his goods; and that the plaintiff ought to have discharged the deSTATUTE OF LIMITAfendant out of custody before he proceeded against his goods, he having made his election P. 160. to proceed against the body originally. But The cases of Howell v. Young, gent. one, &c. Parke, J. said, "That proposition cannot be 5 B. & C. 259, and Short v. M'Carthy, 3 B. & maintained. The plaintiff has a right to take Ald. 626, clearly shew that the statute begins any execution he thinks proper. The plaintiff to run from the time the cause of action first did not refuse to discharge him." Rule dis-accrued; and in this case I take it to be quite charged, with costs. clear that the cause of action was the business done, and not the ceasing to be concerned, or the taxation of the costs. H. E. N. A CONSTANT READER. ARTICLES OF CLERKSHIP.-PREMIUM. p. 143. Law of Property and Conveyancing. WILL. REVOCATION. P. 192. Much doubt formerly appears to have been entertained, whether in the case of a devise of The Court of King's Bench will in some real estate for the purpose of conversion, the cases, where the articles contain no stipulation produce whereof was to be paid to C., an un- for a return of premium in certain events, exattested codicil revoking such bequest to C. ercise a summary jurisdiction, so as to compel in favor of D., was a valid revocation; but the an equitable apportionment, without resorting cases of Gallini v. Noble, 3 Mer. 691; Shaddon to a Court of Equity. Ex parte Prankerd, v. Goodrich, 8 Ves. 495; and Hooper v. Good-3 B. & Ald. 257; Ex parte Bayley, 9 B. & C. win, 18 Ves. 56, clearly establish that a codicil 691; but in those cases the Chief Justice obnot attested according to the requisites of the served, that the jurisdiction of the Court deStatute of Frauds would not affect the dispo-pended on the authority it possessed over its sition of the produce to C. And consequently B., the heir at law, will not be deprived of the produce to arise by the conversion of the real estates under A.'s will. E. L. own officers. In this case the executors are not officers of the Court, and not liable, I apprehend, to this 'summary jurisdiction; but even if the Court possess such a jurisdiction, Answers to Queries.—Queries. I commenced several actions by my town agent, and the actions proceeded to pleas and issues; I now reside in London, and have my town certificate. Can I now proceed in the actions so carried on, and enter proceeding, endorsed "A. B. of, &c., agent for C. D., plaintiff's attorney, of, &c." in my own name, and without my agent, I by the proceedings appearing the principal, and A. B. only an agent; or am I compelled to obtain a Judge's order to omit the name of my agent? 287 207 of the present volume, appear to be very unsatisfactory. Suppose actions to have been brought against the acceptor, drawer, and indorser; the proceeds of a judgment to have been recovered against the acceptor; and the drawer to have become insolvent. Can any, and if any, what, proceedings be taken against the acceptor for the amount of the costs incurred against the drawer, in consequence of the acceptor's default ?-for instance, can a new action be brought against him for the amount of such costs? and can the proceedings be continued against the indorser, if the plaintiff does not reserve something upon the judgment against the acceptor ?—and will a shilling be sufficient for that purpose? It R. G. G. Law of Property and Conveyancing. BEQUEST.-HUSBAND. appears to me that the gentleman who has kindly taken the trouble to answer my query (see pp. 128, 239), and to quote authorities in support of his opinion, did not take the late Inheritance Act into consideration. I beg to submit to your correspondent, who appears to understand the question fully, that as the act above mentioned makes the parent the heir of his child, the husband, on the death of the child and B., will take the fee of the reversionary freehold estates, as the right heir; but as it is a matter of doubt, I should feel greatly obliged to your correspondent if he would give me his opinion now I have called his attention to the Inheritance Act. DOWER.-TRUSTEE. H. S. C. A. by his will devises all his freehold property to his wife, and after the making such will, purchases other freehold property. In a codicil made subsequently to the last purchase, the testator, after altering various bequests made by his will, confirmed the bequest to his wife will the freehold estate last purchased by the testator pass to the wife, or descend to the heir at law; and does the codicil amount to a republication ? W. 288 Queries.-Miscellanea.-Editor's Letter Box, Dower act, § 14. 1. Does the 14th section of the 3 & 4 W. 4. c. 105, save the right to dower of a woman married before the 1st inst., whose husband is still living; or does the word widow, in that section, only include those females who became widows prior to that day. 2. Supposing that section to save the right to dower of all females who were married on or before the 1st inst., will they be entitled to the benefit of those clauses in the act which extend dower to equitable estates, and to estates to which the husband has merely a right of entry or of action, since, according to such a construction of the section, they would not be subject to the restrictive clauses of the act? 3. Is not the following the true construction of the act?—That such right to dower as shall have attached upon an estate prior to the 1st inst. can only be barred by the concurrence of the wife under the Fines and Recoveries Act. That where a right to dower of a woman married before the 1st of January inst. shall attach upon an estate after that day, such right may be barred by the husband alone under the Dower Act, as if he had married since the act came into operation. Your correspondent, P- -E, vol. 7, p. 70, states, that "a woman married on or before the Jst inst. is not within the Dower Act, and she will be entitled to dower, as she would have been before that act was passed." Now these sections, which add to the estates upon which dower will attach, are worded generally, and not confined to wives married at any particular time; so that, if his opinion be correct, a woman married on or before the day above mentioned will be excluded the benefit of those sections, though they are worded generally. I have heard several gentlemen of the profession declare it to be their opinion, that the 14th section of the above act only saves the dower of those women whose husbands died before the commencement of the act; grounding their argument upon the word widow, used in that section, and which they said would have been woman, had it been the intention of the Legislature to preserve any dower after the 1st of Jan. 1834. lony, and take an oath to abjure the kingdom for ever; and if he thus confessed, and took that oath, he was thereby attainted of the felony, and then he had forty days from the coming of the coroner to provide and prepare for his voyage; and the coroner assigned him such a port as he chose for his departure out of the kingdom; and if he did not go straightway out of the kingdom, or being gone out, did return without license, he had judgment to be hanged, except he was a clerk, and then he had his clergy.-Speech of Sir Peter King on the Trial of Dr. Sacheverell. THE EDITOR'S LETTER BOX. Part I. of the Quarterly Digest of all Reported Cases for 1834, will be published on Saturday the 15th of the present month. We thank J. H. C. for his communication, of which we shall avail ourselves. "A Member of the Law Institution" should address the proper official authority in that Society. We are obliged to H. S. C. for his friendly estimation of our labours. The Letters of S. R.; "Psede;” H. B. I.; E. F.; and " Equamicus," are under consi deration. We think that the question under the Dower Act, ably discussed in the Letter of E. C., has been sufficiently considered, and until the question comes before one of the Superior Courts, we should not be justified in renewing the controversy. The queries and answers of "A Constant Reader;" J. C.; J. D.; G. H. T.; H. J.; and J. B. D., have been received. The queries of some of our correspondents are inadmissible, because they may be readily answered by reference to any elementary work on the subject. Some additional information for our Obituary has been received, and other particulars are expected, which, when received, shall be given altogether. "Censor" is a very uncivil person, both to our correspondents and ourselves, and he is very unreasonable in requiring perfection: nevertheless we will endeavour to profit by his sincere" remarks. 66 We regret being obliged to defer the Answer to the Commentaries on the Chancery Orders, an article on Municipal Corporations, and other contributions. The Legal Observer. Vol. VII. SATURDAY, FEBRUARY 8, 1834. No.CLXXXVIII. CHANGES MADE IN THE LAW EAST INDIA COMPANY ACT, 3 & 4 W. 4. c. 85. We close our series of "Changes in the Law" with a brief statement of the clauses in the East India Company Act. The general scope and objects of the measure were well explained by the Marquis of Lansdowne, on introducing the Bill into the House of Peers: the following particulars are abstracted from his speech. The main ground on which the measure rested was, that the Company could not continue any longer to act as a trading company with benefit to itself or the country generally. If the arrangements be realized which are stated in the following summary, the proprietors of India Stock will have reason to congratulate themselves. The territory of India, at the time mentioned in the act, is to be made over to the King's government in full sovereignty, subject to all the demands attaching to that sovereignty; and the Company is to make over to the King's government all the assets, funds, warehouses, and other property in England and the East Indies, in its possession, subject to all the outstanding demands against them. In return for these concessions on the part of the Company, the King's government takes upon itself, on the part of the territory of India, to provide NO, CLXXXVIII. for the payment of the whole of the dividends now due from it, to the amount of 630,000%. a-year; those dividends to be distinctly charged upon the territory of India, and not upon the assets of the Company. In addition to these dividends, the act provides a grant of 2,000,000. to accumulate for forty years, for the purpose of paying off the whole of the annuity of 630,0007.; and that, at the expiration of those forty years, the annuity may be redeemed. Without entering into the details of calculation on which the arrangements between the Government and the Company have proceeded, it may be useful to mention that the Company's Commercial assets were valued at 21,645,5577., including 4,811,000l. admitted to be due from territory, independent of the commercial property of India. To this sum may be added the sum of 8,616,113., being the amount of old claims due from their territory, making the total amount of their nominal assets 30,261,670., from which a variety of deductions must be made, on account of the difficulty of disposing of the property, the decay of buildings, the depreciation in the value of securities, and other causes, which reduce the amount to 12,970,0367. Besides this there is an additional sum of 4,811,000l. due from Territory to Commerce, which will increase the sum (less the discount) to 17,361,000. For these assets the territory will have to pay for a guarantee fund of 2,000,0007., and for compensations to the amount of 800,0007. This reduces the 17,361,000l. to 14,561,000. T |