Page images
PDF

Superior Courts: Exchequer.

183

P. C. 4-49, was an authority to shew that the defendant, under such circumstances, was not entitled to his discharge. That was a decision of Mr. Baron Aldi.rson, who was sitting in the Exchequer alone, and was founded on an unreported case of Sumption v. Monzani, in the King's Bench, in Easter Term, 1836. There was a case of Day v. Thomas, mentioned in Mr. Chapman's Practice, which was to a contrary effect.

Williams, J.—I think 1 am hound hy the case of Sumption v. Monzuni, which was in the full Court of King's Bench. The defendant, therefore, is not entitled to his discharge.

Rule refused.—Barnard v. Symonds, T. T. 1S37-—K. B. P. C.

©rchcqurr.

COUNTY COURT.— RESIDENCE OF PLAINTIFF.

A plaintiff need not reside irithin the county, in order to give the Count;/ Court jurisdiction under the 2H G. 2, c. 23.

Ogle shewed cause against a rule ohtained by Thomas for entering a suggestion to deprive the plaintiff of costs under the Middlesex County Court Act, 23 G. 2, c. 23. It was an action of debt; and at the trial of the cause before the undersheriff, the plaintiff gained a verdict, with 1/. I "is. damages. An ohjectiou was now taken, that the affidavit on which the rule had been obtained, did not shew that the plaintiff resided within the jurisdiction of the Counly Court. The provisions of the statute gave the Court authority to determine only such causes as might have been held by plaint before the Court, before the making of the act, asid defendants only who rrsided within the county were liable to be summoned, Tubb v. Woodward, 6 T. R. 175. It would seem that the same provisions must be held to apply to plaintiffs also, Webb v. liroicn, 5 T. R. 535 i Dillamore v. Capon, 1 Bing. 338.

Parke, B.—I am clearly of opinion that it was never intended that the plaintiff should necessarily reside within the county, to give the Court jurisdiction. The books all decide that the cause of action must arise, and the defendant reside within the county, but there is no decision, by which it is rendered necessary for the plaintiff also to live within the jurisdiction of the Court. At common law, this matter could be tried in the County Court, and the 23 G. 2, does not alter the case in this respect. This opinion is confirmed by the 19th section of the act, which relates to costs, and requires only that the defendant should reside within the county.

Atderson, B., concurred.

Rule absolute.—Pritchard v. Macgill, E. T. 183/. Excheq.

COSTS OF ACTION ON A JUDGMENT.

Where the plaintiff has neglected to charge the defendant in execution, and he hus been in consequence superseded, the Court tcUl not id low the plaintiff the costs ofan action brought on He judgment, although the de

fendant shall plead a false plea, thereby causing expense ami delay.

Archbotd moved for a rule nisi for allowing the plaintiff his costs under the following circumstances. It appeared that the defendant had been sued on a promissory note, and had put in a plea, but afterwards obtained a sum. mons to stay proceedings ou payment of the debt and costs within a certain time, or in default, the plaintiff to be at liberty to sign final judgment. The costs were not paid, and the plaintiff in consequence signed final judgment, and sued out a ca. sa. in order to fix the bail. The defendant rendered in discharge of his bail, and was subsequently superseded. The plaintiff afterwards brought an action on the judgment, to which the defendant, after having obtained time to plead, pleaded nul tie! record. The statute 43 G. 3, c. 4(i, s. 4, provided that the plaintiff should have no costs in an action on a judgment, unless the Court or one of the Judges should otherwise order. It was urged that the circumstances of this case were such as would induce the Court to grant costs. The defendant had pleaded a false plea, and had caused considerable expense and delay.

Parlte, B.—The question is, whether the plaintiff should suffer the consequences of his own negligence in not having charged the defendant in execution, or whether the defendant shall pay the costs. If the costs of the plea could be separated from the others, the defendant should be made to pay them, but the Court has no authority under the act to award a portion only of the costs.

Rule refused.—Halt v. Pierce, E. T. 1837Excheq.

DEDT.—PAYMENT.

Payment, unless pleaded, cannot be proved in mitigation if damages in an action of debt.

Addison had obtained a rule in this case for a new trial, unless the plaintiff would take nominal damages. It was an action of debt for goods sold, and on an account stated, and the defendant pleaded nunquam indebitatus. The cause was tried before the under-sheriff of Hampshire, and the defendant, in answer to the plaintifl's case, produced a promissory note, and evidence was tendered to shew that it had been paid since the commencement of the action. The evidence was, however, objected to, as there was no plea of payment, but the under-sheriff received it, and left it to the jury to say whether it was given on account of the debt, and whether the plaintiff had not precluded himself from proceeding for the debt by his acceptance of the note until after it had become due. The jury found a verdict for the defendant.

Kullinson now shewed cause.

Parke, B —It has been held that in assumpsit payment may be given in evidenco in reduction of damages, but it cannot be doue in debt. How could it be done in reduction of damages, when there is no enquiry on that

184 Parliamentary Proceedings.Imprisonment for Debt.The Editor's Letter Box.

[graphic][merged small][merged small]

Kopal SUsfrntf.
30/A June.
Registration and Marriages.
Turnpike Acts continuance.
Recorders' Courts.
Shire-halls.
Pillory Abolition.
Bristol Court of Conscience.

3d July.

Law of Wills.
Limitation of Actions.

jljousc of UorM.

BILLS FOR SECOND READING.

Imprisonment for Debt.

Municipal Rates.

Bills of Exchange.

Punishment of Death.

Letters Patent to Trading Companies.

Final Registration of Electors.

Administration of Justice (New S. W.).

Rolls Estate.

Parliamentary Electors.

To establish Local Courts.

Education and Charities.

Pluralities Prevention.

Residence of Clergy.

Judge's Opinions.

Tithe Commutation.

Coroners' Expences.

IN COMMITTEE.

Sheriffs' Fees.

Attorneys and Solicitors.

Offences punishable by Transportation.

Abolishing the punishment of death for forgery.

Robbery and stealing from the person.

Burglary and stealing in a Dwelling-House.

Crime of Piracy.

Burning or destroying Buildings and Ships.

Offences against the Person.

Lords Justices.

Irish and Scotch Affidavits.

Municipal Corporations.

THIRD READING.

Common Law Offices.
Metropolis Police.

Sltjusr of Command.

BILLS TO BE BROUGHT IN.

Local Courts Mr. Roebuck.

Abolishing Grand Juries . . Mr. Prime. To extend the Suffrage of Householders.

Mr. Hume.

To amend the Marriage Act. Mr. Wilks. Qualification of Members. Mr. Warburton. Mortgages on Ships. Mr. G. F. Young.

Law of Costs and General Issue. Sir F. Pollock. Powers of Tenants for life of Estates in Ireland

Mr. Lynch.

Repealing Septennial Act. Mr. Williams.

Mr. D'Eyncourt. Power of Judges to commit. Mr. Charlton.

FOR SECOND READING.

Controverted Elections . . Mr. C. Buller. Law of Patents . . . -. Mr. Mackinon.

Freemens' Admission.

Attorneys and Solicitors, (Ireland,)

Parish Vestries.—To abolish Plural Voting.

Mr. Wakley.

Law of Coverture . . . Captain Pechell.

IN COMMITTEE.

Criminal Courts, Assimilation of Practice.

Bribery at Elections .... Mr. Hardy. Repealing Usury Law on Bills of Exchange. Registration of Voters. Attorney General. Prisons Regulations . . Mr. Fox Maule. Recovery of Tenements. Mr. Algionby.

Residence of Clergy.

Public Records Mr. C. Buller.

Highway Rates.

Inclosure Awards.

Final Register of Electors.

THIRD READING.

Secular Jurisdiction of York and Ely.

TASSED.

Rolls Estate.
Forgery.

Municipal Rates.

Abolishing Imprisonment for Debt.
Bills of Exchange.
Parliamentary Electors.
Punishment of Death.

[graphic]

ABOLISHING IMPRISONMENT FOR DEBT.

This Bill, which was brought into the House of Commons in February, and by forced marches passed through the Commons so long ago as the 1st March, has only just found its way to the House of Lords! It will of course be postponed. There are no petitions in its favour, except from prisoners; and the numerous objections to it remain unanswered. The weight of evidence is against it, and many of its most strenuous supporters object to abolishing imprisonment after judgment. It must stand over, and at all events be materially modified.

THE EDITOR'S LETTER BOX.

Subscribers who wish to receive by post the Country Stamped Edition of the Legal Observer, will please to give directions accordingly. The wort in all other respects remains the same; and the London subscribers, and those who can receive it by the Booksellers' parcels, may continue it at the same price and in the same form as heretofore.

The Cover of the Weekly number, co mprising the Advertisements and Contents, will in future be stamped for the Country as a Sup plement, and sent, without any extra charge, to all the subscribers.

We are not able at present to avail ourselves of the offer of *' A Barrister of the Inner Temple," but are obliged by his communication.

The Letters of S. B.; "A Gent., one, &c.;" "A Constant Reader;" "Philonomus;" and T. H. have been received.

Printed by Edmund Spbttiuue, 67, Chancery Lane, London , and published by John Richards & Co., 194, Fleet Street, London. Price, 6d.; and Stamped, 74. Friday, 7thJulv, JS37.

SATURDAY, JULY 15, 1837.

—— "Quod magis ad i»os

Pertinet, et uescire malum est, agitamus.

Horat.

THE CLOSE OF THE SESSION.

The Session of Parliament, it is said, at the time we write, will close on Tuesday next; at any rate, it can only last a few days longer, and the dissolution which will follow will plunge the country into all the bustle and excitement of a General Election.

Her Majesty's reign has commenced auspiciously for the cause of legal reform. The Wills Act, which we give in the present number, is the 26th chapter of her first year. It is a useful measure, and will prevent much litigation as to wills executed after the 1st of January, 1838. The old law applies to all wills executed before that time.

The bills relating to the administration of the Criminal Law are also entitled to the highest praise. It gives us much gratification to be able to state, that the Parliamentary returns" of the number of commitments, for the crimes the punishment of which has been alleviated, fairly warrant an amelioration of the Criminal Code. So far as the experience of the last ten years go, they satisfactorily prove that the abolition of the punishment of death has diminished crime very considerably. We know that this is but a limited experience, but still it encourages the Legislature to go forward.

A bill of some interest connected with the Criminal Law will be found in another part of this number, under which the Recorder will be enabled to make his Report to a Secretary of State, and not to the Queen in person,—reserving, however, the prerogative of mercy in the Crown. It will readily strike the reader, that, when the reigning sovereign is a female, it would be imposing on her an unnecessary and revolting task to decide on the execution of the last punishment of the law on persons guilty of certain offences. The whole ceremony of the Recorder's Report has been for some time a mere form, and has, indeed, frequently been attended with great incon

» See ante, 140—142. VOL. My.—Ko. 408.

venience to the administration of justice, in cases of illness of the King or Queen. The only person who may object to this Bill is the Recorder) who has sometimes liked this communication with Royalty ;b but we cannot see that any one else should object to it.

The Coroner's Expenses Bill also is a useful bill as it now stands, and we lay claim to some of the merit of making it a proper measure.

The Imprisonment for Debt Bill was withdrawn, as we supposed it would be, on Tuesday last. It would have been impossible to have properly considered its details in the present period of the session, even if the principle had been admitted on all sides. The Lord Chancellor, on withdrawing it, stated that the principle was so admitted, and that it would be introduced early next session.

The Rolls Estate Bill, which vests that property in the Crown, will enable the Commissioners to effect several improvements in regard to the building of New Courts and Law Offices:—plans of which are already under consideration by the proper authorities, and which have been frequently advocated in this Journal.

It was rumoured that in consequence of the Elections, the Sittings of the Court of Chancery would close, and would be resumed in October. This plan was, we believe, seriously entertained, and considering that many of the leading Counsel of this Court would be absent, it might have tended to expedite the business. It has, however, been found impracticable, and the Court will not rise until about the 10th of August.

The Lord Chancellor, it is expected, will soon dispose of the appeals he intended to hear, and will then proceed to the hearing of original causes; and as he will be undisturbed by parliamentary business, he will probably proceed rapidly with this list.

b Our readers will remember the story told by Horace Walpole, of George I. and " the man with the dying speech."

[blocks in formation]

CHANGES IN THE LAW IN THE PRESENT SESSION OF PARLIAMENT.

No. II.

AMENDMENT OF THE LAW OP WILLS.

I Victoria, C. 26.

This act is entituled An Act for the Amendment of the Laws with respect to Wills. [3d July, 183/.]

Meaning of certain Words in thit Act, Be it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or different meaning', shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows j (that is to say,) the word " will " shall extend to a testament, and to a codicil, and to an appointment l>y will or by writing in the nature of a will in exercise of a power, and also to a disposition hy will mud testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled An Act for taking atcay the Court of Wards and Liveries, and Tenures in capite and by Knights' Service,and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof, or by virtue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled An Act for taking away the Court of Wards and Liveries, and Tenures in capite and hy Knights' Service, and to any other testamentary disposition; and the words " real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to uny estate, right, or interest (other than a chattel interest) therein: and the words "personal estate " shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other funds, securities for money, (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and toauy share or interest therein; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the .masculine gender only shall extend and be applied to a female as well as a male. (s. 1.)

Repeal of the Statutes relating to Wills.— That an act passed hi the thirty-second year of the reign of King Henry the Eighth, intituled The Act of -Wills, Wards, and Primer Seisins, trhereby a Man may devise Two Paris if his Land; and also an act passed in the thirtyfourth and thirty-fifth years of the said King

Henry the Eighih, intituled The BUI ing the Explanation of Wills; and also an act passed in the parliament of Ireland, in the tenth year of the reign of King Churlet the First, intituled An Act how Lands, Tenements, etc. may be disposed by Will or otherwise, ami concerning Words and Primer Seisins; and also so much of an act passed in the twentyninth year of the reign of King Charlrs the Second, intituled An A*t for Prevention of Frauds and Perjuries, and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled An Act for Prevention of Fraud* and Perjuries, an relates to devises or bequests of lands or tenements, or to the revocation or alteration of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur avtrr vie, or to any such estate being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne intituled An Art for the Amendment of the Law and the better Advancement of Justioe, ami of an act passed in the parliament of Ireland in the sixth year of the reign of Qaeeu Anne, intituled An Act for the Amendment of the Law and the better Advancement of Justice, as relates to witnesses to nuncupative wills j and also so much of an act passed in the fourteenth year of the reign of King George the Second, mtituled An Act to amend the Law concerning Common Recoveries, and to explain and amend an Act made in the Twenty-ninth Year of King Charles the Second, intituled 'An Act for Prevention of Frauds and Peijuriet,' as relates to estates pur outre vie; and also an act passed in the twenty-fifth year of the reign of King George the Second, intituled An Act for avoiding and putting an end to certain Doubts <md Questions relating to the Attestation of Wilis and Codicils concerning Real Estate* in that Port of Great Britain ailed England, and in His Majesty's Colonies and Plantations in America, except so far as relates to his Majesty's colonies and plantations in America; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of Km? "orge the Second, intituled An Act for tie idtng and putting an end to certain Doubts and Questions relating to the Attestations of Will* and Codicils concerning Real Estate* ,and also an act passed in the fiftv-fifth year of the reign of King George the Third, intituled An Act to remove certain Difficulties in tie Disposition if Copyhold Estates by Will, shall be and the same are hereby repealed, except so far as the same acts or auy of them respectively relate to any wills or estates pur autre vie to which this act does not extend, (s. 2.)

All property may be disposed of by will.— That it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner herein-after required, all real estate and all personal estate which be

[blocks in formation]

shall be entitled to, either at law or in equity, at the time of his death, and which if not so dsvised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power hereby given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in tins Act, if this act had not been made; and also to estates pur autre vie, whether theie shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will, (s. 3.)

4' to the feet and fines payable by devisees of customary and copyhold estates.—That where any real estate of the nature of customary freehold or tenant right, or customary or copyhold, might, by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of presenting, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator: Provided also, that where the testa

tor was entitled to have been admitted to such real estate, and might, if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid, (s. 4.)

Wills or extracts of trills of customary frerholds and copyholds to be entered on the court rolls.—That when any real estate of the nature of customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to he entered on the court rolls of such manor or reputed manor; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufficient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same remedy for recovering and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent, (s. 5.)

Estates pur autre vie.—That if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the

« PreviousContinue »