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Superior Courts: King's Bench Practice Court.
as a part of the matters connected with the was in London; and it was objected that the partnership, and that, as it had been sold by I plaintiff could not recover for the medicines, Smith before the reference, it was not to be &c., as be had not proved himself to be a cer, considered as included in the submission; Itificated apothecary, in accordance with the think the attachment cannot be enforced, and stat. 55 Geo. 3, c. 194, s. 21. A verdict was, I also entertain the same opinion as respects however, returned for the plaintiff with 31. 7d. the payment of the moiety of the costs. Be- damages, beyond the money paid into Court, cause, although one party who had paid the but the damages were subsequently reduced by whole of the costs could recover against the 21. 28. on an application being made to the other, and although Smith was informed that Court of King's Bench. It was now urged, Reeres had paid them, yet there is no affidavit that as the amount of damages found by the that they had been actually so paid. As to the jury exceeded 21., the subsequent reduction of sum of 105l. 88. 10d., there is no objection, the amount did not bring the case within the and the rule for the attachment as to that, statute. In Tubb v. Woodroard, 6 T. R. 175, must be made absolute; but the attachment it was decided, that the whole cause of action should remain a fortnight in the office. Al. must have arisen within the jurisdiction of the though Reeves cannot recover the moiety of County Court; here from the evidence, it was the costs under this rule, yet he must not be not clear whether a portion of the claim had shut out of them altogether ; but in order to not arisen in London. The defendant, there. save Smith from the vexation of there being fore, could not succeed in his rule, but it must two proceedings on the same matter, I shall be discharged with costs. direct that Reeves shall undertake not to sue Waddington submitted that the verdict must out any writ or process against Smith as re- be taken to be that which was found to be the gards the costs, until the expiration of one legal verdict; and he cited Chadwick v. Bunmonth from the time of a demand in writing ning, 5 B. & C. 532, to shew that the verdict being made for the moiety s but if Reeves must be taken to be conclusive, as regarded shall refuse to give this undertaking, this rule the amount of the plaintiff's deinand. must be enlarged until next terın.
Littledale, J.-It does not appear positively Rule accordingly. In the matter of Arbitra- on the sheriff's notes, whether permission was tion between Smith and Reeves, T. T. 1837. given to the defendant to apply to the Court K. B. P. C.
to reduce the amount of the damages; but it must be presumed, either that such was the
case, or that the parties consented to that COUNTY COURT.-COST8.-JURISDICTION. course being taken, or the Court would have TRIAL BEFORE SHERIFF.
sent the cause back to a new tria). If the parThe defendunt will be entitled to enter a sug.
ties consented that the Court have the power gestion to give himself double costs under
to reduce the amount of damages, then the the Middlesex County Courl Act, although
verdict as settled by them must be taken to be o verdict shall have been found for more
the real verdict iu point of law, and is just the than 40s. by the jury, if it shall have been
sampe as if the jury had found it. It is said, reduced on an application to the Court on a
besides, that the real debt as found by the jury,
exceeded 31. in amount, and that if that was point of law. The cause of action must arise within the ju.
reduced on a point of law only, it was not risdiction of the County Courl, to bring it
within the act; but that makes no difference, within the statute.
for if it could not be recovered in point of The suggestion may be entered, although
law, it is the same as if it did not actually exist. the cause shall have been tried before ike
It is contended also, that the cause of action sheriff on a writ of trial.
may have arisen in the city of London, and
that therefore, it is not within the jurisdiction Waddington had obtained a rule, calling on of the Middlesex County Court, and consethe plaintiff to shew cause why a suggestion quently out of the act of parliament. If the should not be entered under the 19th section defendant had, in fact, received the money or of the Middlesex County Court Act, (23 Geo. the sale of the mare in London, and that had 2, e. 23) to give the defendant double costs, I been shewn before me, I should have thought
cm having recovered a verdict for 40s. that the whole act, being taken together, would only.
imply that the cause of action must arise within Humfry shewed cause. The action, it ap- I the jurisdiction of the Court, potwithstanding peared, was brought to recover the sum of 31. the particular words of the 19th section, “if the 68. 4d., two guincas of which were claimed for defendant shall reside in the county of Middlework and medicines by the plaintiff as an sex, and be liable to be summoned to the apothecary, and the residue on a balance County Court." From the notes of the unclaimed to be due on the sale of a mare. The dersheriff, however, it is not clear that the defendant paid 58, 9d into Court, and as to cause of action did arise in London ; for al. the rest pleaded non assumpsit. On the trial I though Dixon's Repository be in London, and of the cause before the undersheriff, it was the defendant lives in Middlesex, it is as probaproved that the Il. 48. 4d. claimed on behalf ble that the money was paid to the defendant 10 of the sale of the mare, had been paid either the latter county as in London. If this inatat the plaintiff's residence in Middlesex, or atter had been explained on an affidavit by the Dixon's Horse Repository, Barbican, which plaintiff, it might have been different, but it is
Superior Courts : Exchequer. Parliamentary Proceedings.
199 not likely that a question upon the place of Parke, B. If it had been forfeited to the payment of the money would have been raised | Crown, it might have been pleaded in bar. on the trial. In the absence of all proof to Smith.-Here the judgment was subsequent the contrary, therefore, it must be understood to the outlawry, and it could only be pleaded that the defendant not only resides in Middle-in abatement. See Viner's Abridgment, tit. sex, but that he received the money in his own Outluwry, C.; and in the cases of Clarke v. house, within the jurisdiction of the County | Scrogg's, 2 Lutw. 1510, and Anon. Salk. 275, Court. I had entertained a doubt, whether it is laid down, that a demand not ascertained under this act, on a writ of trial before the at the time of the outlawry, is not forfeited to sheriff, a suggestion could be entered, but hav- the Crown. The Court, besides, would not ing looked into the statute, I am not prepared exercise its equitable jurisdiction, as there was to say that my doubt was well founded. The a remedy by uudita querela. Symons v rule must be inade absolute.
Blake, 2 C. M. & R. 416. Rule absolute.-Wells v. Langridge, T. T. Parke, B.—There could not be on audita 1837. K. B. P. C.
querela, for the form of the writ is audila querela defendentis.
Lord Abinger, C. B.--It seems to me, that Erchequer.
there can be no doubt about the principle of
the case. The defendant is making use of the SETTING ASIDE HABBAS.-OUTLAWRY.- TIME
authority of the Court to enforce his claim ; OF APPLICATION.
but he cannot do so, as he is an outlaw, and The defendant having been outlaised in May, we cannot assist him, unless the outlawry is
and having obtained judgment is in case reversed. of a nonsuit, in an action in the February Parke, B.--I at first thought that the applifollowing, on which, in March, he obtained cation was too late, but I think that it is a habeas do charge the plaintiff in execu- sufficient to come at any time before the judg. tion, his outlarory is a sufficient ground for ment is acted upon. setting aside the habeas, und the applica-l Rule absolute.-Aldridge v. Buller, E. T. tion is in time, if made before the judgment 1837. Excheq.
is acted upon. Price had obtained a rule for setting aside a writ of habeas corpus to bring up the body of the plaintiff, in order to charge him in exe PARLIAMENTARY PROCEEDINGS. cution, against which,
J. W. Smith shewed cause. It was con. tended that the application came too late. The ground on which the rule was obtained
Royal Assents. was, that the defendant was an outlaw. The
12th July. outlawry had taken place in May, 1836, and Common Law Courts the defendant had obtained judgment as in Concealment of Births. case of a nonsuit against the plaintiff in the Metropolis Police. following February. The habeas had issued in Rolls Estate. March last, and its object was to charge the Administration of Justice (New S. W.). plaintiff in execution for the costs on the judgment. The present rule was not obtained
House of Lords. until the 29th April. Lord Abinger, C. B.--The habeas is a means
BILLS FOR SECOND READING. of enforcing the defendant's claim. The plaintiff must pay the money, or else he must I To establish Local Courts. go to prison. The outlawry might be pleaded...
Education and Charities. in bar, if an action had been brought on the
the Pluralities Prevention. judgment; but it is argued that this is now
Residence of Clergy.' the only method in which the objection can be
Judges Opinions. taken.
Irish and Scotch Affidavits.
. THIRD READING. dant had brought his action on the judgment, | Offences punishable by Transportation. how would he then have been situated ? | Abolishing the punishment of death for forgery.
Smith.—The plaintiff must then have pleaded Robbery and stealing from the person. his outlawry in abatement, and he would have Burglary and stealing in a Dwelling-House. been obliged to plead within four days. Crime of Piracy.
Parliamentary Proceedings.- The Editor's Letler Box.
Burning or destroying Buildings and Ships.
Attorneys and Solicitors.
THE EDITOR'S LETTER BOX.
At the suggestion of some of our subscribers, Tithes Commutation.
we have determined to give in the Legal ObAdministration of Justice, N. S. W.
server all the Statutes relating to the Law passed Coroners Expences.
in the present session of parliament, nearly ver. Reference to Acts Mistakes.
batim, with occasional notes. The series was Metropolis Police.
commenced last week with the Marriage and Sheriffs' Fees.
Registration Amendment Act. The present
nuinber contains the first part of the new BILLS POSTPONED.
statute relating to Wills; and we would sugImprisonment for Debt.
gest to the profession the propriety, as far as Final Registration of Electors.
possible, of apprising their clients of the in. Parliamentary Electors.
validity of their wills, executed after 1st Jan. | 1838, as to personal estate, in the old form,
if not attested by two witnesses. House of Commons.
The Letter of D. H. S. will be inserted in
an early number. BILLS TO BE BROUGHT IN.
We have still no room for Queries and Local Courts . . . . . Mr. Roebuck. | Answers, and the space they occasionally Abolishing Grand Juries . Mr. Prime. I occupy is objected to by several subscribers. To amend the Marriage Act. Mr. Wilks. The point in dispute does not clearly appear Qualification of Members. Mr. Warburton. in the letter of “A Subscriber of long standMortgages on Ships. Mr. G. F. Young. ing.” We do not see that any answer could Law of Costs and General Issue. Sir F. Pollock. | be usefully given to his letter, if inserted in its Powers of Tenants for life of Estates in Ireland present state.
Mr. Lynch. The grievance of a clerk who has completed Repealing Septennial Act. Mr. Williains. his articles, shall be stated.
Mr. D’Eyncourt. The subject of the evening attendance at Power of Judges to commit. Mr. Charlion. solicitors'offices, has been, we think, sufficiently FOR SECOND READING.
stated. One of several more letters which we Controverted Elections . Mr. C. Buller. I have received, will probably be inserted, and Law of Patents . . . . Mr. Mackinon. then we think the correspondence inust close. Freemens' Admission.
Subscribers who wish to receive by post the
Country Stamped Edition of the Legal ObserBribery at Elections . ::..: Mr. Hardy. I ver, will please to give directions accordingly. Repealing Usury Law on Bills of Exchange.'
The work in all other respects remains the Registration of Voters. Attorney General.
same; and the London subscribers, and those Prisuns Regulations .. Mr. Fox Maule. Recovery of Tenements. Mr. Algionby.
who can receive it by the Booksellers' parcels,
onby. may continue it at the same price and in the Residence of Clergy.
same form as heretofore. Public Records. ..., Mr. C. Buller.
The Cover of the Weekly number, comHighway Rates.
prising the Advertisements and Contents, will Inclosure Awards.
in future be stamped for the Country as a Sup THIRD READING.
plement, and sent, without any extra charge, to
all the subscribers. Lords Justices.
Printed by EDMUND SPETTIGUE, 67, Chancery Lane, Lon.
don ; and published by JOHN RICHARDS & Co., 194, Fleet Street, London. Price, 6d.; and Stamped, 7d. Friday, 14th July, 1837.
The Legal Observer.
SATURDAY, JULY 22, 1837.
" Quod magis ad NOS
ALTERATIONS MADE IN THE LAW | if he wishes to dispose of it, he must still sever BY THE WILLS ACT.
it by deed in his lifetime, and he may then de
vise his share. Neither can a tenant in tail We avail ourselves of an edition of the bar the entail by will. He is expressly preWills Acta which has just been published,
cluded from doing so by the act for abolishing
fines and recoveries (3 & 4 W. 4. c. 74, s. 40). edited by Mr. Stewart, to explain some of
And no alteration is made as to this by the the alterations effected by the act.
present act; he may however acquire a fee Its general objects are thus stated in the by a deed enrolled under that act, and may introductory note.
then devise such estate in fee. But, with these “The chief objects of the new act (which ex
two exceptions, every species of property will tends only to wills executed after the 1st of
| be devisable under this act. January, 1838) are the following :
“ Copyholds were not devisable at common "1. The former acts relating to wills are re.
law, and there must have been a surrender to pealed. 2. All property whatever, real or
| the use of the will, which alone gave effect to personal, contingent or vested, may be devised,
the limitations therein; but the necessity of a including rights of entry and real estate ac
surrender to the use of a will was taken away quired by the testator after the execution of
by the stat. 55 G. 3, c. 192, which enacted his will. 3. No will made by a person under
that devises should be good without any surtwenty-one shall be valid. 4. One settled
render to the use of the will, and that the same rule as to the execution of all wills is establish
duties and fees should continue to be paid as ed. 5. The necessity of a publication of a
had been paid on surrenders. But difficulties will is done away. 6. A settlement of the
arose under this act, as to whether it applied rules which relate to the credibility of the
to cases where there was no custom in the witnesses of a will. 7. The prescribing what
manor to devise or surrender to the use of a shall be a revocation of a will. 8. The ren
will; and it left untouched any custom that a dering the law uniform as to the time when a
copyhold surrendered to the use of a will should will shall speak. 9. The settling certain doubt.
not pass thereby. See Pike v.White, 3 Bro.C.C.
117; Church v. Munday, 15 Ves. 404. By the ful points in the construction of wills.”
present act the 55 G. 3, c. 192, is repealed ; We have printed, in the last and present and it is enacted that customary freeholds and Number, this important act. To the third copyholds may be disposed of by will, not. section the following note is appended, withstanding there has been no surrender to which briefly but clearly explains what the use of the will, and 'notwithstanding that property may be devised at present and
the same, in consequence of the want of a
custom to devise or surrender to the use of under the new act.
a will or otherwise, could not at law have “By the present law all freeholds may be been disposed of by will,' and 'notwithstanding devised, except estates held in joint tenancy, that the same in consequeuce of there being a or by entireties, or for an estate tail, or an estate custom that a will or a surrender to the use of in quasi entail. No alteration is made by the a will should continue in force for a limited present act as to these estates. The joint te- time only, or other special custom.' The 1th nant cannot sever the joint estate by his will : section regulates the payment of the fees and
| fines payable by devisees of the customary and a“ The Act for the Amendment of the copyhold estates; and the fifth enacts, that wills Laws with respect to Wills, 1 Victoria, c. 26. or extracts of wills of customary freeholds and With Notes explaining the Alterations, and copyholds shall be entered on the court rolls, An Index. By James Stewart, Esq., of Lin- and the lord shall be entitled to the same fine coln's Inn, Barrister at Law.” Richards where such estates are not now devisable, as he and Co.
would have from the heir in case of a descent, VOL. XIV. - NO. 408.
202 Alterations made in the Law br the Wills Act.- Practical Points of General Interest.
“ By the 29th Car. 2, c. 3, s. 12, estates pur | will is a future disposition, revocable by the autre vie might be devised, but it was doubtful testator, and it is not completed, and can pass whether it extended to estates pur autre vie no estate until after his death, yet, unless by devisable by custom; this act is now repealed, means of the doctrine of election, it can affect and it is expressly provided that estates pur no freehold estate but such as he is entitled autre vie may be devised, 'whether there shall to at the time of making his will. Therefore or shall not be any special oceupant thereof, if he devise all such estates as shall belong to and whether the same shall be freehold, custo- him at the time of his death, the devise is inmary freehold, tenant right, customary or operative with respect to any lands he may copyhold, or of any other tenure, and whether acquire subsequently to the date of his will, the same shall be a corporeal or incorporeal except so far as it may, according to a recent hereditament.' See sec. 34.
decision, (hurchman v. Irelanıl, i Rus. & M. “ It was settled by the inore recent cases, 250, raise a case of election against the heir. that contingent and executory interests might Copyholds also do not pass by a will, if they be devised; Moor v. Hawkins, cit. I H. B 33 ; are acquired after the date of it; but they may Jones v. Roe, 3 T. R. 88; but the older au- be surrendered to the use of a prior will : in thorities were to the contrary; Bishop v. Fon which case the surrender amounts to a retaine, 3 Lev. 427; Fearne. Cont. Rem. 291. publication of the will, and makes it speak as
« The point is placed beyond dispute by the from the date of the surrender. But with re. present act, which enacts that all contingent spect to personal estate, a will speaks from the interests may be devised.”
death of the testator. By this section a will “ A right of entry cannot be at present der shall in all cases be construed to speak from vised. Baker v. Faking, Cro. Car. 387, 405: the death of the testator." Goodright v. Forester, 8 East, 564: Cave v.
| For the other alterations we must refer Holfurd, 3 Ves. 669. When the present act
our readers to the publication itself, in comes into operation this rule will be altered, and all rights of entry may be devised.
which all the necessary information on the “No rule of the present law is better settled subject will be found. than that a devise of real estate operates only upon land of which the testator is seised at the time of making his will. 1 P. Wms. 575; 11 Mod. 148. This rule is altered by the PRACTICAL POINTS OF GENERAL present act, and under it property acquired
INTEREST. after the execution of a will may be devised.”
The alteration as to the mode of executing a will is thus explained :
SENDING MONEY TO A JUDGE. o As the law at present stands, a great varie. If money be sent to a Judge, the person ty of rules exist as to the execution of a will, ac- sending it, will be dealt with, and the cording to the property devised or bequeathed money applied, as in the following case : by it. To pass freeholds, the will must be in A person writing a letter to the Lord Chan. writing, and signed and attested by three I cellor, relative to a threatened suit. and en. witnesses, according to the provisions of the closing a bank note, was held guilty of a constatute of frauds : but leaseholds and other
tempt, and ordered to attend personally and personal property may be bequeathed by any shew cause why he should not be committed ; writing, however informal, and unattested ; or but afterwards on his appearing and expressing such property may pass by parol in certain contrition, he was discharged, on payment of cases, with the evidence required by the costs. The following was the order made. statute. To pass money in the funds by direct is The Right Hanem
" The Right Honourable the Lord High
h legal devise, the will must be attested by two
Chancellor of Great Britain, this day taking witnesses, under the 1 G. 1. st. 2, c. 19, s. 12, notice in open court, that his lordship, on the although, according to the construction which
2d of this instant August, had received a that act has received, it is in fact nugatory.
letter by the General Post, directed to the Copyholds may be devised by an unattested
Right Honourable the Chancellor of England, Il; but to appoint a guardian the will must be dated Yarmouth, in Norfolk, 1st August 1747, attested by two witnesses, 12 Car. 2, c. 24, I signed Thomas Martin, making mention of a s. 18; and several other minor differences exist. I bill in Chancery, threatened to be filed against When the present act comes into operation, the said Thomas Martin, and relating to the all these differences will cease, as under it, one subject matter of such suit, and inclosing a settled rule is established applicable to every
bank note for 201., which he thereby desired species of wills, which is prescribed by sec- his lordship's acceptance of; and the said tion 9.”
letter and bank note, and also the affidavit of We shall conclude our extracts by the J. H., proving the said letter to be the proper note relating to the time when a will speaks handwriting of the said Thomas Martin, being under the present law, and the law as it read; this court upon taking the said matter will be altered by the act.
into consideation, deeming the contents of
the said letter and the sending thereof, with “As the law stands at present, although a such bank bill enclosed therein, unto his Lord.