198 Superior Courts: King's Bench Practice Court. as a part of the matters connected with the partnership, and that, as it had been sold by Smith before the reference, it was not to be considered as included in the submission; I think the attachment cannot be enforced, and I also entertain the same opinion as respects the payment of the moiety of the costs. Because, although one party who had paid the whole of the costs could recover against the other, and although Smith was informed that Reeves had paid them, yet there is no affidavit that they had been actually so paid. As to the sum of 1051. 88. 10d., there is no objection, and the rule for the attachment as to that, must be made absolute; but the attachment should remain a fortnight in the office. Although Reeves cannot recover the moiety of the costs under this rule, yet he must not be shut out of them altogether; but in order to save Smith from the vexation of there being two proceedings on the same matter, I shall direct that Reeves shall undertake not to sue out any writ or process against Smith as regards the costs, until the expiration of one month from the time of a demand in writing being made for the moiety; but if Reeves shall refuse to give this undertaking, this rule must be enlarged until next term. Rule accordingly.In the matter of Arbitration between Smith and Reeves, T. T. 1837. K. B. P. C. COUNTY COURT.-COSTS.-JURISDICTION. TRIAL BEFORE SHERIFF. The defendunt will be entitled to enter a sug gestion to give himself double costs under the Middlesex County Court Act, although o verdict shall have been found for more than 40s. by the jury, if it shall have been reduced on an application to the Court on a point of law. The cause of action must arise within the jurisdiction of the County Court, to bring it within the statute, The suggestion may be entered, although the cause shall have been tried before the sheriff on a writ of trial. Waddington had obtained a rule, calling on the plaintiff to shew cause why a suggestion should not be entered under the 19th section of the Middlesex County Court Act, (23 Geo. 2, c. 23) to give the defendant double costs, the plaintiff having recovered a verdict for 40s. only. Humfry shewed cause. The action, it appeared, was brought to recover the sum of 31. 6s. 4d., two guineas of which were claimed for work and medicines by the plaintiff as an apothecary, and the residue on a balance claimed to be due on the sale of a mare. The defendant paid 5s. 9d into Court, and as to the rest pleaded non assumpsit. On the trial of the cause before the undersheriff, it was proved that the 1. 48. 4d. claimed on behalf of the sale of the mare, had been paid either at the plaintiff's residence in Middlesex, or at Dixon's Horse Repository, Barbican, which was in London; and it was objected that the plaintiff could not recover for the medicines, &c., as he had not proved himself to be a cer. tificated apothecary, in accordance with the stat. 55 Geo. 3, c. 194, s. 21. A verdict was, however, returned for the plaintiff with 3l. 7d, damages, beyond the money paid into Court, but the damages were subsequently reduced by 21. 28. on an application being made to the Court of King's Bench. It was now urged, that as the amount of damages found by the jury exceeded 21., the subsequent reduction of the amount did not bring the case within the statute. In Tubb v. Woodward, 6 T. R. 175, it was decided, that the whole cause of action must have arisen within the jurisdiction of the County Court; here from the evidence, it was not clear whether a portion of the claim had not arisen in London. The defendant, therefore, could not succeed in his rule, but it must be discharged with costs. Waddington submitted that the verdict must be taken to be that which was found to be the legal verdict; and he cited Chadwick v. Bunning, 5 B. & C. 532, to shew that the verdict must be taken to be conclusive, as regarded the amount of the plaintiff's demand. Littledale, J.-It does not appear positively on the sheriff's notes, whether permission was given to the defendant to apply to the Court 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 course being taken, or the Court would have sent the cause back to a new trial. If the parto reduce the amount of damages, then the ties consented that the Court have the power verdict as settled by them must be taken to be the real verdict in point of law, and is just the same as if the jury had found it. It is said, exceeded 31. in amount, and that if that was besides, that the real debt as found by the jury, within the act; but that makes no difference, reduced on a point of law only, it was not for if it could not be recovered in point of law, it is the same as if it did not actually exist. It is contended also, that the cause of action may have arisen in the city of London, and that therefore, it is not within the jurisdiction of the Middlesex County Court, and consequently out of the act of parliament. If the defendant had, in fact, received the money on the sale of the mare in London, and that had been shewn before me, I should have thought that the whole act, being taken together, would imply that the cause of action must arise within the jurisdiction of the Court, notwithstanding the particular words of the 19th section, "if the defendant shall reside in the county of Middlesex, and be liable to be summoned to the County Court." From the notes of the undersheriff, however, it is not clear that the cause of action did arise in London; for although Dixon's Repository be in London, and the defendant lives in Middlesex, it is as probable that the money was paid to the defendant in the latter county as in London. If this matter had been explained on an affidavit by the 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 Outlawry, C.; and in the cases of Clarke v. house, within the jurisdiction of the County Scroggs, 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 audita querela. Symons v rule must be inade absolute. Blake, 2 C. M. & R. 416. Rule absolute.-Wells v. Langridge, T. T. 1837. K. B. P. C. Exchequer. SETTING ASIDE HABEAS.-OUTLAWRY, TIME Parke, B.-There could not be an audita querela, for the form of the writ is audita querela defendentis. Lord Abinger, C. B.-It seems to me, that there can be no doubt about the principle of the case. The defendant is making use of the authority of the Court to enforce his claim; but he cannot do so, as he is an outlaw, and we cannot assist him, unless the outlawry is reversed. The defendant having been outlawed in May, and having obtained judgment as in case 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 to charge the plaintiff in execu-sufficient to come at any time before the judgtion, his outlawry is a sufficient ground for ment is acted upon. setting aside the habeas, and the applica- 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 execution, against which, J. W. Smith shewed cause. It was contended that the application came too late. The ground on which the rule was obtained was, that the defendant was an outlaw. The outlawry had taken place in May, 1836, and the defendant had obtained judgment as in case of a nonsuit against the plaintiff in the following February. The habeas had issued in March last, and its object was to charge the plaintiff in execution for the costs on the judgment. The present rule was not obtained until the 29th April. Lord Abinger, C. B.-The habeas is a means of enforcing the defendant's claim. The plaintiff must pay the money, or else he must go to prison. The outlawry might be pleaded in bar, if an action had been brought on the judgment; but it is argued that this is now the only method in which the objection can be taken. J. W. Smith urged that this was not a ground PARLIAMENTARY PROCEEDINGS. Royal Assents. Common Law Courts Administration of Justice (New S. W.). House of Lords. BILLS FOR SECOND READING. IN COMMITTEE. on which a habeas would be set aside. There Coroners' Expenses. Municipal Rates. was no decision that the outlawry of a defen-Letters Patent to Trading Companies. Parke, B.-Is not the position of the defendant here in fact that of a plaintiff ? Lord Abinger, C. B.-Supposing the defendant had brought his action on the judgment, how would he then have been situated? Smith. The plaintiff must then have pleaded his outlawry in abatement, and he would have been obliged to plead within four days. Irish and Scotch Affidavits. THIRD READING, Offences punishable by Transportation. 200 Parliamentary Proceedings.-The Editor's Letter Box. Burning or destroying Buildings and Ships. Secular Jurisdiction of York and Ely. POSTPONED. Attorneys and Solicitors, (Ireland,) THE EDITOR'S LETTER BOX. AT the suggestion of some of our subscribers, we have determined to give in the Legal Observer all the Statutes relating to the Law passed in the present session of parliament, nearly ver. batim, with occasional notes. The series was commenced last week with the Marriage and Registration Amendment Act. The present number contains the first part of the new statute relating to Wills; and we would suggest to the profession the propriety, as far as possible, of apprising their clients of the invalidity of their wills, executed after 1st Jan. 1838, as to personal estate, in; the old form, if not attested by two witnesses. The Letter of D. H. S. will be inserted in an early number. We have still no room for Queries and Answers, and the space they occasionally occupy is objected to by several subscribers. The point in dispute does not clearly appear in the letter of "A Subscriber of long standing." We do not see that any answer could be usefully given to his letter, if inserted in its present state. The grievance of a clerk who has completed his articles, shall be stated. The subject of the evening attendance at solicitors' offices, has been, we think, sufficiently stated. One of several more letters which we have received, will probably be inserted, and then we think the correspondence must close. Subscribers who wish to receive by post the Country Stamped Edition of the Legal Observer, will please to give directions accordingly. The work 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, comprising 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. PASSED. Central Criminal Court. Printed by EDMUND SPETTIGUE, 67, Chancery Lane, Lon- ALTERATIONS MADE IN THE LAW | if he wishes to dispose of it, he must still sever BY THE WILLS ACT. WE avail ourselves of an edition of the Wills Acta which has just been published, edited by Mr. Stewart, to explain some of the alterations effected by the act. Its general objects are thus stated in the introductory note. "The chief objects of the new act (which extends only to wills executed after the 1st of January, 1838) are the following: "1. The former acts relating to wills are repealed. 2. All property whatever, real or personal, contingent or vested, may be devised, including rights of entry and real estate acquired by the testator after the execution of his will. 3. No will made by a person under twenty-one shall be valid. 4. One settled rule as to the execution of all wills is established. The necessity of a publication of a will is done away. 6. A settlement of the rules which relate to the credibility of the witnesses of a will. 7. The prescribing what shall be a revocation of a will. 8. The rendering the law uniform as to the time when a will shall speak. 9. The settling certain doubt. ful points in the construction of wills." We have printed, in the last and present Number, this important act. To the third section the following note is appended, which briefly, but clearly, explains what property may be devised at present and under the new act. By the present law all freeholds may be devised, except estates held in joint tenancy, or by entireties, or for an estate tail, or an estate in quasi entail. No alteration is made by the present act as to these estates. The joint tenant cannot sever the joint estate by his will: a"The Act for the Amendment of the Laws with respect to Wills, 1 Victoria, c. 26. With Notes explaining the Alterations, and An Index. By James Stewart, Esq., of Lincoln's Inn, Barrister at Law." Richards and Co. VOL. XIV. No. 408. it by deed in his lifetime, and he may then devise his share. Neither can a tenant in tail bar the entail by will. He is expressly prefines and recoveries (3 & 4 W. 4. c. 74, s. 40). cluded from doing so by the act for abolishing And no alteration is made as to this by the present act; he may however acquire a fee by a deed enrolled under that act, and may then devise such estate in fee. But, with these be devisable under this act. two exceptions, every species of property will Copyholds were not devisable at common law, and there must have been a surrender to the limitations therein; but the necessity of a the use of the will, which alone gave effect to surrender to the use of a will was taken away by the stat. 55 G. 3, c. 192, which enacted that devises should be good without any surrender to the use of the will, and that the same duties and fees should continue to be paid as had been paid on surrenders. But difficulties arose under this act, as to whether it applied to cases where there was no custom in the manor to devise or surrender to the use of a will; and it left untouched any custom that a copyhold surrendered to the use of a will should not pass thereby. See Pike v.White, 3 Bro. C. C. 117; Church v. Munday, 15 Ves. 404. By the present act the 55 G. 3, c. 192, is repealed; and it is enacted that customary freeholds and copyholds may be disposed of by will, notwitlistanding there has been no surrender to the use of the will, and 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,' and 'notwithstanding that the same in consequeuce 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 other special custom.' The 4th section regulates the payment of the fees and fines payable by devisees of the customary and copyhold estates; and the fifth enacts, that wills or extracts of wills of customary freeholds and copyholds shall be entered on the court rolls, and the lord shall be entitled to the same fine where such estates are not now devisable, as he would have from the heir in case of a descent. 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 frechold 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 occupant 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, Churchman v. Ireland, I Rus. & M. 250, raise a case of election against the heir. Copyholds also do not pass by a will, if they are acquired after the date of it; but they may be surrendered to the use of a prior will: in "It was settled by the more recent cases, that contingent and executory interests might be devised; Moor v. Hawkins, cit. 1 H. B 33; Jones v. Roe, 3 T. R. 88; but the older authorities were to the contrary; Bishop v. Fon-which case the surrender amounts to a retaine, 3 Lev. 427; Fearne. Cont. Rem. 291. "The point is placed beyond dispute by the present act, which enacts that all contingent interests may be devised." "A right of entry cannot be at present de vised. Baker v. Faking, Cro. Car. 387, 405: Goodright v. Forester, 8 East, 564: Cave v. Holford, 3 Ves. 669. When the present act comes into operation this rule will be altered, and all rights of entry may be devised. "No rule of the present law is better settled 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 present act, and under it property acquired after the execution of a will may be devised." The alteration as to the mode of executing a will is thus explained: "As the law at present stands, a great variety of rules exist as to the execution of a will, according to the property devised or bequeathed by it. To pass freeholds, the will must be in writing, and signed and attested by three witnesses, according to the provisions of the statute of frauds: but leaseholds and other personal property may be bequeathed by any writing, however informal, and unattested; or such property may pass by parol in certain cases, with the evidence required by the statute. To pass money in the funds by direct legal devise, the will must be attested by two witnesses, under the 1 G. 1. st. 2, c. 19, s. 12, although, according to the construction which that act has received, it is in fact nugatory: Copyholds may be devised by an unattested will; but to appoint a guardian the will must be attested by two witnesses, 12 Car. 2, c. 24, s. 18; and several other minor differences exist. When the present act comes into operation, all these differences will cease, as under it, one settled rule is established applicable to every species of wills, which is prescribed by sec publication of the will, and makes it speak as from the date of the surrender. But with respect to personal estate, a will speaks from the death of the testator. By this section a will shall in all cases be construed to speak from the death of the testator." For the other alterations we must refer our readers to the publication itself, in which all the necessary information on the subject will be found. PRACTICAL POINTS OF GENERAL SENDING MONEY TO A JUDGE. IF money be sent to a Judge, the person sending it, will be dealt with, and the money applied, as in the following case: A person writing a letter to the Lord Chancellor, relative to a threatened suit, and enclosing a bank note, was held guilty of a contempt, and ordered to attend personally and shew cause why he should not be committed; but afterwards on his appearing and expressing contrition, he was discharged, on payment of costs. The following was the order made. The Right Honourable the Lord High Chancellor of Great Britain, this day taking notice in open court, that his lordship, on the 2d of this instant August, had received a letter by the General Post, directed to the Right Honourable the Chancellor of England, dated Yarmouth, in Norfolk, 1st August 1747, signed Thomas Martin, making mention of a bill in Chancery, threatened to be filed against the said Thomas Martin, and relating to the subject matter of such suit, and inclosing a bank note for 20., which he thereby desired his lordship's acceptance of; and the said letter and bank note, and also the affidavit of J. H., proving the said letter to be the proper handwriting of the said Thomas Martin, being read; this court upon taking the said matter 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 tion 9." We shall conclude our extracts by the note relating to the time when a will speaks under the present law, and the law as it will be altered by the act. |