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Superior Court*: K. B. Practice Court; Common Pleas.
an affidavit if he had the management of the particular business of the particular client j hut then he should shew that on the face of the affidavit of debt, *s prima" facie he would not have such means. This not being shewn on the affidavit, it must he considered as defective, and the defendant entitled to his discharge.
Williams, J., was of opinion that the capability of the deponent to swear to any debt due from the defendant to the plaintiff, did not sufficiently appear on the face of the affidavit. The defendant might therefore take a rule nisi for discharging the defendant out of custody.
Rule nisi accordingly.—Graves v. Browning, E. T. 183/. K. B. P. C.
ISSUE.—VENIRE.—COMMENCEMENT OF SUIT.
Semhle, thai it is an irregularity in the issue to make the venire returnable "forthwith," and to omit the commencement of the suit.
Hindmarch moved to set aside the issue and all subsequent proceedings in this cause, for irregularity. The irregularity was, that the venire was made returnable forthwith, instead of naming a particular day; and the issue also omitted to state the commencement of the suit.
Paltesnn, J.—Take a rale nisi.
The rule was drawn Hp with a stay of proceedings; but the plaintiff notwithstanding took out a summons to shew cause before Mr. Justice Patteson at chambers, why he should not be at liberty to amend the issue upon payment of costs; but the learned Judge refused lo interfere at chambers, as the matter was before the Court. The plaintiff then gave notice that he would not shew cause against the rule, which was therefore made absolute.
Rule absolute.— Williams v. Calver/y, E. T. 1837. K B. P. C.
DEMURRER.—STATEMENT IN MARGIN.
In artier to comply with the rule of Hilary Trrm, 4 W. 4, as to stating the grounds of demurrer in the margin of demurrer, it is sufficient to state them in the margin, without slating that the parly demurring intend* to rely on those grounds. This was a demurrer to a declaration. In the margin of the demurrer, various grounds of demurrer were stated, but the defendant did not state he intended to rely on tho6e grounds.
Prrry now moved for leave to set aside the demurrer as frivolous, on the ground of the rule of Hilory Term 4 W. 4, which required the party demurring to state in the margin of his demurrer on which he iutended to rely, not being complied with. It would not be considered as a compliance with the rule to state thus generally the various causes of demurrer, without pointing out any specific grounds on which Cat party intended to rely. If this were allowed to be sufficient, the object of the rule would be completely frustrated.
Williams, J.—I suppose the defendant intends to rely on all the grounds stated in the margin of his demurrer. I cannot limit him as to the number of grounds of demurrer which he shall state. I do not think it necessary that he should expressly state in terms, that he intends to rely on them. They are placed in the margin as the grounds on which he intends to rely.
Rule refused.—Groves v. Brown, E. T. 1837. K. B. P. C.
AFFIDAVIT OF DEBT.—ACCOUNT STATED.
An affidavit of debt stating the defendant to be indebted to the plaintiff in the sum of 800/., "the balance of an account slated," is sufficient without the addition of the words "and settled."
Barstow moved for a rule nisi for entering a common appearance, and for the giving up of the bail-bond to be cancelled. The ground of the application was a supposed irregularity in the affidavit of debt. The deponent stated the defendant to be justly and truly indebted to him in the sum of 800/., "the balance of an account stated between" the deponent and the defendant. It was urged that the form should have been, " the balance of an account stated and settled," which was the form given in Tidd's Practice. The case had already been before a Judge at chambers.
Vaughan, J.—Why should an affidavit of this description be required to be more particular in its form, than a count in a declaration i The allegation in a count, that it was on an account stated, would be sufficient.
Barstow admitted that the case was within the new rules, but urged that the form in Tidd should be followed. The deponent might really believe every word to be true which he Mvore, but the defendant might have some objection lo the debt, by which the truth of the allegation would be negatived.
Tindal, C. J.—We must not be always bound by the forms given by Mr. Tidd. How can the claim be on the balance of an account stated, unless it be also settled? The word "stated " means stated by consent.
Barstow urged, oa the authority of the case of Visgcr and another v. Delegal, 2 Barn. & Ad. 571. that incases like this it was better to follow the form in general use.
Tindal, (!. J.—The affidavit, we think will do. The form is sufficient in a count in a declaration, and we think it is also enough in an affidavit.
Rule refused.—Tyler v. Campbell, E. T. 1837. C. P.
TAXATION OF ATTORNEY'S DILL—CHARACTER OF ITEMS.
Searching for ajudgment previously recovered in the Court, and advising as to the effect of it, and that it should lie revived, are not items which trill render an attorney's bill taxable under the net Gen. 2, c. 23, s. 23
14 Superior Courts: Common Picas.—Sittings.—Parliamentary Proceeding*.
F. V. Lee applied for a rule to shew cause why an attorney's bill should not be taxed by the master, on the applicant giving an un overtaking to pay the amount which should be found to be due. The items which it was contended would bring the case within the act of parliament charges for searching for a judgment which it was sworn was recovered in this Court, and for attending an appointment and advising the applicant on the effect of the judgment, and that it should be put in execution.
Park, J.—I do not think there is anything in either of those charges to authorise the interference of the Court. The searching for a judgment may arise in many cases when there is no actual business done in Court.
F. V. Lee urged that it would most likely lead to business being done in the Court, and referred to the judgment of Lord Ellenborough, in Snndnn v. Bourn, 4 Camp. 68. He also cited Smith v. Taylor, 7 Bing. 262.
Tindal, C. J.—This case is one degree removed from any which has yet been decided. Here there is no proceeding in the Court at all. In Smith v. Taylor, there was an actually existing action, but here the only business done was the giving advice to revive a judgment.
Rule refused.—In Re Edward Rice, B. T. 1837. C. P.
DESCRIPTION OF PLAINTIFF'S NAME IN DBCLATION.—RULE FOR AMENDMENT.
The plaintiff being described in the declaration as Henry H. Lindsay, the Court granted a rule for amending the declaration at the cost of the plaintiff, or for setting aside the declaration.
Thomas applied for a rule for setting aside the declaration in this cause for irregularity. The irregularity complained of was, that the plaintiff was described as " Henry H. Lindsay" only, his second name not being set out fully.
Park, J.—Why not move to amend it at the cost of the plaintiff? The words of the 11th section of the act of the 2 and 3 W. 4, c. 2, point out that mode."
Thomas said, that he would take the subject in the alternative, for amending the declaration or for its being set aside. He had already applied to a judge at chambers, and had been referred to the Court.
Rule accordingly.—Lindsay v. Wells, E. T. 1837. C. P.
Intion thereof, and extend the Term of its duration. 18th May.
Mr. Serjeant Talfourd. To extend the suffrage of Householders.
Mr. Hume. To amend the Marriage Act, 11th May.
Parish Vestries—To abolish Plural Voting.
To amend the Law relating to the Property Qualification of Members.
Mr. Warburton. To alter and amend the Law relating to Mortgages on Ships and Vessels.
Mr. G. F. Young. To amend the Law of Costs and the General Issue Sir F. Pollock.
To declare and amend the Law relating to the Custody of Children of tender age, and to regulate the operation of the Writ of Habeas applicable thereto.
Mr. Serjeant Talfourd. To enable Tenants for Life of Estates in Ireland to make Improvements in their Estates, and to charge the Inheritance with the Monies expended in such Im
provements Mr. Lynch.
To repeal the Septennial Act, 1 G. 1, c.
38 Mr. Wm. Williams.
To regulate and restrain the Power of Judges to Commit for Contempt.
To explain the Marriage, and Registration
Acts Lord John Russell.
FOR SECOND READING.
To amend the Law of Controverted Elections Mr. C. Buller..
To amend the Law of Patents, 31st May Mr. Mackinnon.
To amend the Law as to Offences against the Person Mr. A. Trevor.
For regulating the Expenses at Elections,
To consolidate and amend the Law Relating to Bribery at Elections. Mr. Hardy.
To Repeal so much of the Reform Act, as makes the right of Registration conditional on payment of Poor Rates and Assessed Taxes.
To amend the Law of Wills.
The Attorney General.
To amend the Laws relating to Turnpike Trusts and Tolls. Mr. Mackinnon.
For amending the several Acts for the Regulation of Attorneys and Solicitors. 17th May Mr. Tooke.
For the better regulation of the Offices of Sheriff, UndersberifF, Deputy Sheriff, and Bailiff. 17th May Mr Tooke.
Sheriffs' Courts—To extend the 3 & 4 W. 4, c. 42, " for the further Amendment of the Law, and better Administration of Justice," Captain Pechell.
For the better Registration of Voters,
The Attorney General.
Shire Halls. Mr. Solicitor General.
Prisons Regulations Mr. Fox Maule.
For facilitating the Recovery, of the Possession of Tenements after the determination of the Tenancy Mr. Aglionby.
For restraining and regulating the holding of Benefices in Plurality, and amending the Laws relating to the Residence of the Clergy. Lord John Russell.
Offences punishable by Transportation for Life.
Abolishing the punishment of death in
cases of forgery.
Burning or destroying Buildings and
Abolishing the punishment of Death in certain cases.
Abolishing the punishment of the Pillory.*
For extending the provisions of the Uniformity of Process Act. Mr. Elphinstone.
To regulate the Keeping of the Public Records, Mr. C. Buller.
CONSIDERATION OP REPORTS.
To amend the Law of Debtor and Creditor, and abolish Imprisonment for Debt.
The Attorney General. To abolish useless Offices in the Common Law Courts, and Consolidate the Offices, Mr. Serjeant. Goulburn.
Recorders' Courts, Mr. Wortley.
To authorise Courts of Session of the Peace to reserve points of Law in Criminal Cases for the Opinions of the Judges, and to respite the Sentences of Prisoners till such Opinions are obtained.
Sir E. Wilmot.
Law of Libel.
• The Committee on these nine Criminal Law Bills stauds appointed for the 19th inst. , RESULT OF THE EXAMINATION OF ATTORNEYS.
16 Result of the Examination of Easter Term.—Queries.—Editor's Letter Box.
Easter Tkrm, 1837.
It appears that 121 persons gave notice of examination for the present term, in order to be admitted on the roll of attorneys. Several of the applicants, however, did not leave their documents of qualification at the Law Society, and their names were consequently struck out of the list. On Monday, the 1st instant, 106 of the candidates attended, and were examined. The examination commenced at the usual hour of ten o'clock, and the last candidate retired from the Hall at five o'clock. The Examiners met again the following day and proceeded with the consideration of the answers which had been given in, and at the close of their sitting it was determined to grant certificates of fitness to 100 candidates. Five others were allowed a further examination this term, and one was postponed for re-examination in a future term.
It was not known at the time we went to press whether the five who had a further examination granted, succeeded in passing or not. This will be the conclusion of the first year's trial of the New Rule, and we think that all parties may justly hail it as a great improvement, which, if pursued with the same diligence and discretion that have hitherto marked the proceedings, cannot fail to be eminently beneficial to the profession itself, and satisfactory to the public.
The number of notices for Trinity Term is only 112; so that allowing for the usual proportion of defaulters, the admissions may be expected to be decreased; but it will be a considerable time before the effect of the Rule can be fully ascertained.
3Uim af fjropcrtp antr Cmturmumng.
TENANT DY CURTESY.
In 1805, a testatrix devised a freehold estate to trustees and their heirs, upon trust for and for the sole and separate and peculiar use, benefit, and disposal of her niece, her heirs and assigns for ever, free from the control, debts, management or engagements of any husband with whom she might thereafter marry; and whose receipts, notwithstanding any coverture, should be a sufficient discharge to the trustees for the rents, issues and profits thereof; and for the purchase monies arising from any sale
thereof, or any part thereof. Testatrix gave an annuity to her sister for life, to be issuing and payable out of the said estate, and to be paid by her said niece, &c. Testatrix died in 1819. The niece married in 1811, and died in 1821, (without having done any act relating to the premises,) leaving her husband and several
i children. Is the husband curtcseable?
I R. B.
8TATUTE OF USES.—COPYHOLDS.
A testator, by his will, gave all bis freehold, copyhold and leasehold estates to trustees, in trust to pay or permit A. B. to receive the rents and produce thereof for life, and afier his decease in trust for nnd to the uie of the son and daughter of A. B-, at their respective oges of twenty-one years, equally, aud to their respective heirs, executors, administrators and assigns, according to the nature of the said estates respectively, as tenants in common. One of the trustees died in the life-time of the testator, and the surviving trustee was duly admitted to the copyhold estate. A. B., the tenant for life, is dead, ns also the surviving trustee, who survived him. The son and daughter of A. B., whose ages exceed twentyone years, now desire to be admitted to the copyhold estate, but the steward of the manor requires the heir at law of the surviving trustee to be first admitted, and to have a surrender from him. Under the Statute of Uses did not the copyhold estate, on the death of the tenant for lite, vest in the son and daughter of A. B. i and cannot they now insist on being admitted? Or, did the trustee, after the death of the tenant for life, continue trustee for his son and daughter?
W. T. C.
THE EDITOR'S LETTER BOX.
The letter of W. Y. shall be considered; but we incline to think that our readers will be of opinion that enough has been already said on the subject.
The Queries and Answers of " An Articled Clerk;" J. C. G.; and F. W. D., have been received.
We cannot make ourselves parties to the controversy between an auonymous writer and the editor of another periodical work. The author must perceive that such a practice would be very inconvenient: if one statement were admitted, another could not be refused, and we really have not space for such matter.
"An Articled Clerk " is informed, in answer to his inquiry, that " The New Commentaries on the Laws of England " which have been announced, are not yet published. For the purpose he requires, we think Mr. Stewart's "Principles of the Law of Real Property, ac. cording to the text ,of Blackstone,'' is the proper book.
A Law Students' Society for the discussion of legal questions, assembles weekly at the Law Institution. Whether this will suit E. we are not aware.
ffijr Utqal ©timber.
SATURDAY, MAY 13, 1837.
"Quod maei* ad Nos
Pertinet, etoescire malum est, agitamus.
THE PRESENT SYSTEM OF LAW REPORTING.
This appears to us a proper time to call the attention of the legislature to some of the grievances which affect the profession, and through them, the community at large. We have, from the first commencement of this work, brought forward these complaints, and have indeed very recently adverted to most of them; but we shall not cease to reiterate their statement until they are redressed; and we are not a little pleased to see that the profession is becoming alive to them, and supports us in making them; and that the feeling for their redress is greatly on the increase.
We shall, on the present occasion, advert to the existing plan of reporting the decisions of the Courts of Law and Equity, which appears to us to be nearly as bad as it can be. The profession and the public have a right to have a uniform series of reports of all the principal Courts, edited by experienced and competent reporters, who should devote themselves to this duty, and be assisted by the Judges in discharging it; and these reports should appear at regular periods, soon after the cases are decided. The advantages that would arise in the administration of justice if this course were pursued, are incalculable. Many actions and suits now commenced in the dark, and which consequently fail, would never be brought at all. We should then know what the law is, and thus much hardship would be prevented: and we firmly believe that if reporters were appointed by the Courts, and the profits of the authorized reports applied in the payment of their salaries, they rot. xiv.—Ho. 397.
would receive a very liberal payment, and there would be no pecuniary burden to the public. On the other hand, we cannot conceive anything worse than the present system of reporting. The profession is, in fact, at the mercy of the law booksellers. Of late years rival reporters have been started in almost every Court; and these are of course abandoned or changed to suit the purposes, not of the profession, but of the owners of the copyright. It is anything but pleasant to us to go into details, but we are constantly urged to do it; and if we chose to tell all we know, we should indeed have enough to do.
One thing which is pressed upon us, is the frequent change which takes place in some of these works. A scries of reports, for instance, is started in one name; in a short time afterwards a partner is taken in: then one of the names is dropped, and a new one, or sometimes two, added. These are again soon altered; for the reporters in general do not continue long at their post. They willingly relinquish their labour for any more agreeable or profitable employment. The consequence is, that there is no uniform series of reports. Intervals frequently occur ;—one reporter stops in one term; the next does not always commence where the other left off, and this gap is frequently never filled up. This practice, which is most inconvenient, nay, unjust to the profession, arises from the rivalry of some of the booksellers, who wish to get the start of the other series. Thus, supposing each series of reports has gone on pretty regularly down to any given Easter Term: a continuation of one of the series is sometimes started at the end of the next Michaelmas Term, omitting Trinity Tena B