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No. 890-VOL. XVIII.
JAN. 28, 1854.
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NAMES OF THE CASES REPORTED IN THIS NUMBER.
COURT OF CHANCERY.
Temple v. The Ecclesiastical Commissioners for England.-(County Palatine of Durham-Construction of Act of Parliament — Stipend de Facto) ........ 45 COURT OF APPEAL IN CHANCERY.
Bryson. The Warwick and Birmingham Canal Navigation Company. — (Shareholders of provisionally registered Railway Company, Privity between, after Abandonment of Scheme-Power to sue by, after Appointment of Official Manager under Winding-up Acts) ..
ROLLS COURT. Attwater v. Attwater.-(Will-Construction—Annuity “from funded Property," Insufficiency of—Gift of Principal-Devise-Period of vesting-Restraint on Alienation-Executory Devise — Description of
VICE-CHANCELLOR STUART's Court. In re The Dover, Hastings, and Brighton Junction Railway Company, and in re The Joint-stock Companies Winding-up Acts, 1848 and 1849, ex parte Carew and Others.-(Railway Company, Scheme forAgreement executed by Subscribers only-Non-mutuality-Covenant to indemnify-Order for CallNon-liability of Subscribers)
VICE-CHANCELLOR WOOD'S COURT.
Reg. v. Reed.-(Larceny-Embezzlement-Possession of Master)
there will be less chance than ever of counsel behind
The Scale of Charges for Advertisements will in future be the bar, or even of the juniors of the inner bar, getting as follows:
THE resolution adopted by the gentlemen practising within the bar in Chancery, to confine themselves each to one Court and the Court of Appeal, (including, of course, the House of Lords and the Privy Council), is most satisfactory, and will, we trust, work as well for the honour, comfort, and otherwise for the advantage of those learned persons, as it undoubtedly will for the convenience of the suitor, and that generally ignored body of men called "the outer bar." It renders, how- ever, more necessary than ever the adoption of a rule for which we long ago contended, for having, on the day appointed for motions, a paper of motions in the Courts of the Master of the Rolls and the ViceChancellors, as well as in the Appeal Courts; because, now that each Court will have its permanent inner bar, VOL. XVIII. C
their opposed motions heard. The difference between a list and the existing system is plain enough. When motions are made according to seniority, every counsel within the bar having a right to make two motions, it follows in theory, and it has been found to follow in practice, whenever there has been a fixed Bar, that no more than two, or, at the most, three, of the leading counsel can be heard on a seal, to move. The seal being concluded, the right to move according to seniority is again acted upon at the next seal. First, the old motions are moved; next, those for which briefs have been delivered in the interval, and so on; so that the chance of moving an opposed motion, may not come to the outer bar for six or seven seals running; and in actual practice that has repeatedly and continually occurred. Now, we are not meaning to suggest that any rule ought to be adopted intended or tending to transfer business from the inner to the outer bar. We have, as we believe most junior counsel in actual practice have, an unfeigned respect for the inner bar-an unfeigned desire that its status, and all its rational privileges, should be maintained-looking upon it, as we all do, as the body that guards and represents the honour and interests of the whole Bar. But then, we have also some reverence for t and we conceive that no rule org
THE attention of the Editor of THE JURIST is drawn
his most sacred and unquestioned right to choose his counsel; and though in general he will be advised, and rightly advised, to intrust important motions to leading counsel, and to the most eminent amongst to the report of a case in the Legal Observer of the 14th them, yet there are cases under which it may be January, under the title, In re Clerks of Records and prudent for him, and at any rate he has always a Writs Oaths in Chancery Act, where it is stated to have right, if it so please him, to confide a motion to been held by the Lord Chancellor, "that a London Comyounger and more obscure silk gownsmen, or even to juniors; but if he is to be told that when-missioner to administer oaths in Chancery, under the 16 & 17 Vict. c. 78, is empowered to administer the oath ever, from economy, or caprice, or from any other motive, with which no mortal has anything whatever at the residence of the deponent, or elsewhere within to do, he chooses to adopt the latter course, he ten miles of Lincoln's Inn Hall, and is not limited to wait from what in America is termed July to eter- his place of business*." The terms in which the Lord nity before his unfortunate counsel can get a hear- Chancellor delivered his opinion on the case, which was ing, practically his boasted freedom of choice is arbi- stated ex parte, are not given in this report. His Lordtrarily and compulsorily interfered with. The notion ship said " that his attention had been previously called of his being at liberty to select his own counsel is to the point out of court, and he had come to the opinion, not without doubt, that the act did not remythical-a pure abstraction. But this is not all; he strict the commissioners to administer oaths at their is not merely mulcted in delay-he is heavily mulcted respective places of business; and this opinion was in costs. True, he does not refresh his counsel by strengthened by an observation made to him by Lord supplemental fees; but his solicitor, who is bound to Justice Turner, (who was on the bench), that it was attend on every day of motions till the motion is made, clear that the act was not intended so to restrict them, for by the 7th section the commissioners were embecause on any such day it may be made, is fairly entitled powered to administer oaths in the county palatine of to make, and always does make, a charge for attendance; Lancaster.'" The learned Lord Justice must have read and thus the unhappy suitor pays frequently more for this 7th section hastily, for it does not bear the conhis solicitor waiting day after day, when the motion is struction thus put upon it. It merely empowers the not made, than would have secured the advocacy of the commissioners "to administer oaths for all suits and first advocate. Now, a list of motions would, so far latine of Lancaster." The Lord Chancellor, in giving matters whatsoever in the Chancery of the county paas is practicable, remedy all this, because then no one his opinion as above, stated the limit of the London would be bound to attend unless a motion was in the Commissioners' jurisdiction to be within ten miles of paper; and every motion being disposed of in its order, Lincoln's Inn Hall. Now, the words in the 2nd within a reasonable time every suitor would get his section, "within ten miles from Lincoln's Inn Hall,” motion heard, whether he aspired to the dignity of are merely words of qualification for the office of Lonbeing heard from the very centre of the inner bar, or don Commissioner; and unless the words "at their modestly confined himself to the brightest wig and the respective places of business" are read as limiting the blackest gown of the third row. jurisdiction, there are no words in the act which do so. The words "at their respective places of business," being read as antecedent to the words "to administer," may not be strictly grammatical; but where is perfect grammar to be looked for in acts of Parliament?" They
Something, we believe, has been said from time to time, on this subject, about some supposed privilege of the inner bar, of moving by seniority, by virtue of their patents as counsel to the Crown.
This question we would investigate as a question of legal right, if it were worth while to do so. But it scarcely can be worth while to discuss whether it ever had existence, when the privilege, if ever it did exist, has been so long virtually abandoned by the inner bar, by their acquiescence in a paper of motions in the Appeal Court. If there was anything in it, it must apply as well in that Court as in the Courts below. Indeed, as an ancient privilege, it could not have existed in the Vice-Chancellors' Courts; and in aid of this argument, it will be recollected, that motions in the subordinate Courts, at least in the Vice-Chancellors' Courts, are technically and strictly coram the Lord Chancellor, who hears them by his Vice-Chancellors; who makes, that is, signs and gives force to, the orders; who may, whenever he chooses, hear them originally; and who, when there is what is commonly called an "appeal," does not, in strictness, hear an appeal from a judge of substantively original jurisdiction, but rehears what he is supposed himself to have heard before. So that the privilege, if it had any existence, was a privilege in the Chancellor's Court, in which it has been long abolished.
On every ground, then, of right in the suitor, of absence of any antagonistic right in the inner bar, and of convenience and economy in the dispatch of business, we repeat, let it be pressed by the Profession on the attention of the judges of the Court of Chancery, that there should be a regular paper of motions, as well as of causes and petitions.
*The 1st, 2nd, and 7th sections of the act are as follow:Sect. 1. "The persons now styled 'Masters Extraordinary in Chancery' shall cease to be so styled, and they, and all persons hereafter appointed by the Lord Chancellor to execute like duties in England, shall be designated Commissioners to administer Oaths in Chancery in England,' and shall possess and exercise all such powers and discharge all such duties as now appertain to the office of Master Extraordinary in Chancery by virtue of any statute or order of the Court of Chancery or of the Lord Chancellor, or usage in that behalf, or other
Sect. 2. "It shall be lawful for the Lord Chancellor from
time to time to appoint any persons practising as solicitors within ten miles from Lincoln's Inn Hall, at their respective places of business, to administer oaths and take declarations, affirmations, and attestations of honour in Chancery, and to possess all such other powers and discharge all such other duties as aforesaid; and such persons shall be styled 'London Commissioners to administer Oaths in Chancery:' and they shall be entitled to charge and take a fee of 18. 6d. for every oath administered by them, and for every declaration, affirmation, or attestation of honour taken by them, subject to any order of the Lord Chancellor varying or annulling the same." to administer oaths for the High Court of Chancery, such is Sect. 7. "That where any person is or shall be authorised and shall be authorised to administer oaths for all suits and matters whatsoever in the Chancery of the county palatine of Lancaster; and where any plea, answer, affidavit, or other document whatsoever is or shall be receivable in evidence in the High Court of Chancery, the same shall be in like manner receivable in the said court of the county palatine."
are, at all events, sense. On the contrary, reading the words as part of the qualification for the office, they are not merely surplusage, but wholly without meaning. If, as thrown out by the Lord Chancellor, there is the least doubt on the subject, it ought to be set at rest by a declaratory act; for in the event-not an unlikely one-of an indictment for perjury, or any other criminal offence, founded on an answer or affidavit sworn before one of the London Commissioners elsewhere than at his place of business, surely the defendant would get the benefit of any such doubt.
[We have not any report of the case referred to by our correspondent. If reported as stated by him, it must certainly be incorrectly reported, as it is quite impossible that the Lord Chancellor and Lord Justice Turner can have said concurrently the two things imputed to them. The Lord Chancellor may by possibility have held that the 2nd section was to be read, that persons "practising within ten miles of Lincoln's Inn Hall, at their respective places of business," may be appointed to administer oaths, without limit as to the locality in which they are to administer the oaths, though we can hardly think that his Lordship did so hold; but if he did state that opinion, then Lord Justice Turner's alleged construction of the 7th section would have been at least consistent with it. But if the Lord Chancellor held that the commissioner, though not limited to his own place of business, is limited to ten miles from Lincoln's Inn Hall, then Lord Justice Turner's alleged construction of the 7th section would be in direct opposition to, instead of supporting, the Lord Chancellor's opinion.
COURT OF QUEEN'S BENCH. HILARY TERM.-17 VICTORIA.-Jan. 23, 1854. This Court will on Friday the 3rd, Saturday the 4th, Monday the 6th, Tuesday the 7th, and Wednesday the 8th days of February next, hold sittings, and will proceed in disposing of the remaining cases in the New Trial Paper, the Special and the Crown Papers, in the order named; and will also hold a sitting on Saturday the 18th day of February next, to give judgment in any undecided cases which may have been argued. The Court will sit at ten o'clock on the first five days, and at twelve o'clock on the last. BY THE COURT.
COURT OF EXCHEQUER.
HILARY TERM.-17 VICTORIA.-Jan. 23, 1854. This Court will hold sittings on Wednesday the 1st day of February next, and on every succeeding day (Sunday excepted) until and including Tuesday the 7th day of February next, and will at such sittings proceed in disposing of the business then pending in the Paper of New Trials and in the Special Paper, and in all other business then pending in this Court; and will also hold a sitting on Thursday the 23rd day of February next, and will on the said 23rd day of February next proceed in giving judgment in all matters then standing for judgment.
17 Vict. c. 78, intituled "An Act relating to the ApThe Lord Chancellor, under the powers of the 16 & pointment of Persons to administer Oaths in Chancery, and to Affidavits made for Purposes connected with Registration," has appointed the following gentlemen to be Commissioners for administering Oaths in Chan
We confess we greatly doubt either of the learned COMMISSIONERS TO ADMINISTER OATHS judges having given the opinion attributed to him, as it seems scarcely possible to doubt, that, as suggested by our correspondent, the construction of the 2nd section is, that the persons to be appointed must be solicitors practising within ten miles of Lincoln's Inn Hall, that being their qualification for appointment as London Commissioners, and that they are to administer oaths at their respective places of business, which of course would be within the ten miles. If read as appointing persons practising as solicitors within ten miles from Lincoln's Inn Hall, at their places of business, the observation immediately occurs, how can persons practise as solicitors except at their places of business?-and that if so read, then clearly there is no limit to their authority in point of locality, which would be quite inconsistent with the distinction between them as "London Commissioners" and the commissioners of the 1st section, who are only the country Masters Extraordinary with new faces. As to the 7th section, it is quite clear that all it means to do is to give to any person,
who has authority to administer oaths for the Court of Chancery, the like power to administer them for the business of the Lancaster Court-not necessarily in Lancashire, but wherever the particular commissioner might administer oaths for the Court of Chancery; and so we are confident it will be decided if the point should ever come to be heard on argument.-ED.]
REGISTRATION OF TITLE COMMISSION.-The Queen has been pleased to appoint the Right Hon. Spencer Horatio Walpole; the Right Hon. Joseph Napier; Sir Alexander James Edmund Cockburn, Knt., Attorney-General; Sir Richard Bethell, Knt., Solicitor-General; Thomas Emerson Headlam, Esq., Q. C.; Vincent Scully, Esq., Q. C.; Robert Lowe, Esq., Barrister at Law; William David Lewis, Esq., Barrister at Law; Henry Drummond, Esq.; John Evelyn Denison, Esq.; Robert Wilson, Esq.; and William Strickland Cookson, Esq., to be her Majesty's Commissioners for considering the subject of the registration of title with reference to the sale and transfer of land.
George Frederick Abrahams, 6, Great Marlborough
street, and 1, Fortess-terrace, Kentish-town, to be a London Commissioner.
William Pownall, 9, Staple-inn, to be a London Commissioner.
Edward Burkitt, Curriers'-hall, London-wall, City, to
George Cox, 14, Sise-lane, City, to be a London Com-
Hyla 'Holden, Worcester, to be a Commissioner in
row, to be a London Commissioner.
James Wells Taylor, 28, Great James-street, Bedford-
William Jones, 7, Crosby-square, City, to be a London
Richard Minshull Jones, 190, Tooley-street, South-
Henry Vallance, 20, Essex-street, Strand, to be a Lon
James Bird, 5, New-inn, Strand, 30, Hornton-street,
Charles Matthew Clode, 2, Gray's-inn-square, to be a
Stephen Williams, 16, Bedford-row, to be a London | WILLIAM HESKETH, Blackburn, Lancashire, cotton Commissioner.
Nathaniel Hollingsworth, 24, Gresham-street, City, to
St. Pierre Butler Hook, 9, Lincoln's-inn-fields, to be a
John Clayton, 10, Lancaster-place, Strand, to be a
John Parkinson, 9, Argyle-street, Regent-street, to be
a London Commissioner.
Thomas Henry Street, 1, Brabant-court, Philpot-lane,
James Williamson, 10, Great James-street, Bedford-
to be a London Commissioner.
to be a London Commissioner.
Frederick Allan Grant, 13, King's-road, Gray's-inn,
Frederick Ouvrey, 13, Tokenhouse-yard, City, to be a
London Commissioner. Joseph Muskett Yetts, Temple-chambers, Fleet-street, to be a London Commissioner.
FRIDAY, JANUARY 20. BANKRUPTS. BENJAMIN MILLER, Landport, Portsea, Southampton, mercer and draper, Jan. 31 at 11, and March 2 at 12, Court of Bankruptcy, London: Off. Ass. Johnson; Sols. Sole & Co., Aldermanbury.-Petition filed Jan. 3. GEORGE NEWMAN, Stratford-place, Camden-town, Middlesex, builder, Jan. 28 at 11, and March 3 at half-past 1, Court of Bankruptcy, London: Off. Ass. Whitmore; Sols. Laurence & Co., 12, Bread-street, Cheapside.-Petition
dated Jan. 17.
manufacturer, Jan. 31 and Feb. 21 at 12, District Court of Bankruptcy, Manchester: Off. Ass. Fraser; Sols. Wilkinson, Blackburn; Sale & Co., Manchester.-Petition filed Jan. 11.
JOHN WORSLEY, Macclesfield, Cheshire, cabinet maker, Feb. 6 and 28 at 12, District Court of Bankruptcy, Manchester: Off. Ass. Pott; Sols. Taylor, Manchester; Taylor, 15, South-street, Finsbury-square, London.-Petition filed
William Brook, Manchester and London, stuff merchant,
James Dowle, Chepstow, Monmouthshire, wine merchant,
before the Day of Meeting.
JOHN HALES SWEET, Tunbridge Wells, Kent, seedsflorist, dealer and chapman, Jan. 27 and Feb. 28 at 1, Court of Bankruptcy, London: Off. Ass. Edwards; Sol. Pawle, 5, New-inn, Strand, London.-Petition filed Jan. 5. HARRY WINTON, HARRY JOHN LANGRIDGE WINTON, and EDWIN WILLIAM WINTON, Birmingham, agricultural implement makers, dealers and chapmen, (trading under the firm of Winton & Sons), Jan. 31 and March 7 at 11, District Court of Bankruptcy, Bir- To be allowed, unless Cause be shewn to the contrary on or mingham Off. Ass. Christie; Sols. E. & H. Wright, Birmingham.-Petition dated Jan. 13. WILLIAM TAYLOR WARREN, MATTHEW WARREN, and CHARLES DENROCHE, Cardiff, Glamorganshire, contractors, builders, dealers and chapmen, Feb. 3 and March 8 at 11, District Court of Bankruptcy, Bristol: Off. Ass. Acraman; Sols. Savery & Co., Bristol.-Petition filed Jan. 13. GEORGE KILLICK KENT, Taunton, Somersetshire, plumber and painter, Jan. 26 and Feb. 23 at 1, District Court of Bankruptcy, Exeter: Off. Ass. Hirtzel; Sols. Messrs. Frenchard, Taunton; Stogdon, Exeter.-Petition filed Jan. 17. CHARLES JOHN POOLE, Bridgewater, Somersetshire, baker, dealer and chapman, Jan. 26 and Feb. 23 at 1, District Court of Bankruptcy, Exeter: Off. Ass. Hernaman; Sols. Smith, jun., Bridgewater; Stogdon, Exeter.Petition filed Jan. 19.
Wm. Crebo and John Hay, Mount-street, Lambeth, Surrey, tailors, Feb. 14 at half-past 11, Court of Bankruptcy, London.-Joseph Matthews, Great Waltham, Essex, grocer, Feb. 16 at 2, Court of Bankruptcy, London.-Wm. Brown, Portsmouth, Southampton, licensed victualler, Feb. 13 at 12, Court of Bankruptcy, London.-Charles S. Twigg, Cardiff, Glamorganshire, brickmaker, Feb. 14 at 11, District Court of Bankruptcy, Bristol.-John Wills, Exeter, builder, Feb. 23 at 1, District Court of Bankruptcy, Exeter.-George Alcock, Manchester, draper, Feb. 14 at 12, District Court of Bankruptcy, Manchester.-John L. Ward, Fullege, Burnley Wood, Burnley, Lancashire, cotton spinner, Feb. 13 at 12, District Court of Bankruptcy, Manchester.-W. Thomas the younger, Haworth, Yorkshire, worsted spinner, Feb. 10 at 11, District Court of Bankruptcy, Leeds.-Gregory Barrett the elder and Gregory Barrett the younger, Kidderminster, and Bathstreet, Newgate-street, London, carpet manufacturers, Feb. 15