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New Bills in Parliament.—Questions
at the last Examination of Attorneys.
CD8T0Dr OF INFANTS.
The object of this Bill, which has been brought in by Mr. Serjeant Talfourd, is to give to the Lord Chancellor,— to the Courts of Law at Westminster, and to the Judges of such Courts, power to make orders relating to the custody of children of tender age in certain cues. The enactments proposed are as follows :—
1. Upon return made to any writ of Habeas Corpus, to bring up the body or bodies of any child or children who at the time of such return shall be within the age of twelve years, it shall be lawful for the Lord High Chancellor, or the Court or Judge before whom such writ shall be returnable, in case the parents of such child or children shall he living apart from each other, and where upon such return such child or children shall be delivered into the custody of the father, to make order for the access of the mother of such child or children, at such times and in such manner as to the said Lord High Chancellor, Court or Judge, shall seem meet, and to vary such order from time to time during the continuance of such custody, until such child or children shall attain the age of twelve ycar9.
2. In all cases where the parents of any child or children within the age of twelve years live apart from each other, and where such child or children shall he in the custody of one of such parents, or of any person by or under his or her authority, it shall be lawful tor the Lord High Chancellor, or any Judge of cither of the Courts of Law at Westminster, upon the application and complaint on oath of the other of such parents of the want of proper access to such child or children, and upon heariug the matter of such complaint, to make order for the access of the parent so complaining to such child or children, at such times and in such manner as to the Lord High Chancellor or Judge shall seem meet, and to vary such order from time to time during the continuance of such custody, until such child or children shall attain the age of twelve years.
3. In all the cases aforesaid, it shall be lawful for the Lord High Chancellor or Judge to receive affidavits made before any Judge or Commissioner authorised to take affidavits, and to administer oaths and examine witnesses e'icu vice in the matters aforesaid; and any person swearing falsely and corruptly in such affidavit or upon such oath so administered shall be deemed guilty of wilful and corrupt perjury, and incur the penalties thereof.
4. Orders may be enforced by process of contempt.
5. The act not to alter the law relating to custody of children, except where expressly enacted.
QUESTIONS AT THE EXAMINATION OF ATTORNEYS, IN EASTER TERM.
COMMON AND 8TATUTB LAW, AND PRACTICE OF THE COURTS.
Within what period must an action be brought on a simple contract debt?
Should the period within which an action could be brought, have expired, will a verbal promise within the limited time be sufficient to enable the plaintiff to recover, or must he be prepared with any and what further evidence?
A notice to quit being given to the tenant by a landlord, what liability does the tenant incur by holding over?
What steps should an attorney take before bringing an action for his bill i
What are some of the principal forms of actions?
What is the first step to be taken to arrest a
What means has a defendant of getting himself out of custody?
If bail are desirous of being discharged from their liability, what means have they of doing
Where personal service of process cannot be effected, how would you proceed to compel appearance?
When must a defendant appear to an action?
When is a plaintiff obliged to declare? and if be omit to declare, what steps can the defendant take to get rid of the action I
Where a defendant before the action, has made a tender sufficient to cover the demand, what is the mode of proceeding? and will the plaintiff receive or pay costs if he does not recover more than the amount tendered?
Where separ.ito actions are brought against the acceptor, drawer, and indorser of a bill of exchange, and the acceptor applies to stay the proceedings, what terms are imposed?
llow many witnesses may be included in a common subpujna?
When may the judgment be signed after verdict?
What is a chose in action? and is it assignable at law or in equity?
What, if any, is the difference in the consideration of choses in action in Courts of law and equity?
What should be done so that a will may effectually devise real estate?
Will a mortgage in fee operate as a revocation of a will, previously made, either at law or in equity?
What should be provided for in a contract for the tale and purchnie of a freehold estate?
The like as to a leasehold estate?
When will a purchaser or mortgagee be secure in paying the purchase or mortgage money to a person subject to the bankrupt law?
Questions at the last Examination of Attorneys.
Is a purchaser bound by an undocqueted judgment, in any and what case?
Can the infant heir of an intestate inorgagee in fee convey the legal estate, and by what means?
Where a covenantor to produce title deeds sells the lands and parts from the deeds, is his personal liability discharged? or how is the production secured to the covenantee?
Is there any and what advantage in obtaining an assignment of an attendant term?
Can an advance of money on a mortgage or judgment subsequent to a second mortgage, be tacked to a prior security, so as to have priority in payment to the second mortgage? and in what cases?
A person makes a distinct mortgage for two different sums on two distinct estates to the same person,- (one of which is of insufficient value), can he redeem one of the mortgages without the other?
A testator having borrowed money on his bond and a mortgage of his estate, devises the latter without noticing the mortgage,—is the mortgage money to be paid out of the devised estate? or is any other or what fund liable thereto?
Is it useful or necessary, and wherefore, to take a bond in addition to a mortgage and covenant?
EQUITY AND PRACTICE OP THE COURTS.
A. makes a voluntary settlement of his estate, and then enters into an agreement, for valuable consideration, to sell the estate,—will a Court of Equity compel a specific performance of the agreement?
A. being in possession of deeds belonging to B., will a Court of Equity compel A. to deliver them, and what is the proper bill to be filed?
A. by his will bequeaths B.'s property to C, and gives a legacy to B., can B. insist on being paid the legacy and retain the property bequeathed by A.?
Will a Court of Equity interfere to stay waste before the defendant's appearance?
Under a covenant to insure in the joint names of the lessor and lessee, if the latter insure in his own name only, will a Couct of Equity restrain an action of ejectment for breach of covenant?
An estate being conveyed to trustees to sell, and pay debts, will the Court compel the performance of the trust at the suit of a creditor?
Where a suit seeks an injunction to stay proceedings at law, when is the plaintiff entitled to the injunction?
What is an injunction obtained to stay proceedings at law? Is it a common or special injunction?
A person having a legal demand, but being unable to prove it at law, what is the course to be pursued, to obtain the information from the party indebted?
Can a plaintiff at law select parts of an answer to read as evidence al luw, or can the defendant at law insist that the whole should be read?'
Where a debtor is about to quit the country, will a Court of Equity interfere to prevent him, and what is the proceeding to be taken? what is the writ called; and has the Court of Exchequer a similar jurisdiction?
Are there any cases in which a plaintiff may set down a cause upon bill and answer? If so, state under what circumstances?
Where a party is not satisfied with the draft of the master's report, what is the course to be pursued in the Master's Office?
Where an objection to the Master's Report has not been previously submitted to the Master, will the Court hear the exception?
How is a party proceeded against in the case of a contempt of Court?
BANKRUPTCY, AND PRACT1CR OP THE
What are the necessary steps for obtaining a fiat?
Can a country fiat be obtained without leave of the Court against a trader in London?
What must be proved upon opening a fiat to ground an adjudication?
How do creditors vote in the choice of assignees?
In the choice of assignees, can a petitioning creditor vote on his deposition at the opening of a fiat?
Must an assignee be a creditor?
If creditors live remote from the place where the commissioners sit, how can they prove their debts?
Can a trustee prove without his cestui que trust?
A creditor requiring to prove in autre droit, what must he produce to support his right?
May a guardian prove a debt for an infant without an order of Court?
How can incorporated or public companies prove their debts?
When may the commissioners audit the assignees' accounts, and declare a dividend?
When must a second dividend be made?
Before commencing a suit or action for the recovery of the bankrupt's property, or submitting matters in dispute to arbitration, are any and what steps necessary?
What should be done to enable an attorney or solicitor to practise in the Court of Bankruptcy }
Where must the venue of an indictment be laid? and must the parish be stated and when?
Will a misnomer in an indictment (as John Thomas for James Thomas,) render an indictment invalid?
If a person indicted for an offence and acquitted, be indicted a second time for the same offence, what is the proper plea?
May a prisoner be again indicted for the same offence, if the indictment be quashed before the verdict?
May a constable arrest a person for felony without a magistrate's warrant?
In the execution of a warrant for felony, or
Superior Courts: Lord Chancellor.
without, may a constable break open the outer door of a house?
How do yon define the crime of murder?
So of manslaughter?
What is justifiable and what is excusable homicide?
When an agent or other person entrusted with monies or goods for a special purpose, disposes of the same to his own use; what is the offence, and how is it punishable?
In a criminal proceeding, can a witness be swum in any other manner than upon the Gospels?
Can a private as well as a public nuisance be indicted?
Where a person apprehends some bodily harm, what protection is he entitled to? and what is the mode of obtaining it?
What are the remedies, where a person has been assaulted?
Where an offender is convicted summarily of an assault, can the person assaulted also maintain an action?
2-orlr CIjaiurTIor'iJ Court.
FUND IN COURT. LIEN FOR COSTS.
A fund in Court was created by payment of an annuity into Court by the trustee thereof, who teas a de/endanl to a Oil! filed by the annuitant, and irho, on a compromise of the suit, assigned the annuity and the arrears thereof. Held, that the trustee had not a lien on the fund for his costs in the suit, or for debts due to him from the an nuitant.
This was a petition of appeal from an order of the Vice Chancellor, thereinafter men tioned), presented by Lady Glamis and an other; and it stated, among other things, that in pursuance of an order made in the cause of Braham v. Bowes in 1816, the Master reported in 1821, stating several annuities charged on the estates of the defendant according to their priorities, among which were three several annuities, one of 1009/. granted to the plaintiff in 1809; another of 550/., granted to another person in 1810, and then vested in Thomas Warburton; and another of 444/., granted in 1811 to Dame Margaret Hemlocke. That by anotherorder made in 1823, thereceiversappointed over defendant's estates were ordered to pay the balances due from them to the annuitants; that in 1824, the annuity of 550/. vested in Warburton, was assigned to Ebenezer Fernie as trustee for Lord Glamis and the receiver of the estate charged therewith, was ordered to pay that annuity and the arrears thereof to said Fernie. That in the same year, Lord Glamis and Fernie by his directions, assigned that annuity (among others) to Mr. Dempster Hemming, (for purposes nut necessary to be here stated). That Lord Glamis died in 1834,
having appointed Lady Glamis his sole executrix and devisee of the annuities of 550/. and 444/., then vested in Hemming and Fernie. She proved the will, and in March, 183(i, filed a bill against Hemming, Fernie and James Gibbs, who was interested in the annuity of 444/., praying an account, c*c.; and that they might be ordered to assign to Lady Glamis and her trustee the said annuities, and to pay into the Bank of England with privily of the Accountant General of the Court to the credit of the cause, all monies received by them respectively in respect of the said annuities. Fernie accordingly paid in two sums of 275/. and 2/5/., one year's annuity <of 550/., and the two sums were vested in the purchase of 606/., 3/. per cent, consols. The last suit was compromised as against Hemminsr, but not as against Fernie; and in pursuance of the coinpromise, Hemming and Fernie by deed dated the 2d of Feburary, 1837, assigned the annuity of 550/. and all the arrears thereof then due, or thenceforth to grow due on the same, to the petitioner A. Gibbon, in trust lor the petitioner Lady Glamis. The petitioner prayed that the annuity and the arrears thereof, be paid to A. Gibbon, and that he be in place of Hemming and Fernie. The Vice Chancellor granted the prayer of the petition, except the arrears constituting the fund 606/. then in Court, upon which he held that Fernie and Gibbs had a lien for their costs of the suit; The appeal was from this last part of his Honor s order.
Sir fVilliam Home and Mr. Lovat were heard for the petitioners; Mr. Wigram and Mr. E. Montagu for Gibbs; and Mr. Crawford for Fernie, who, he said, was forced to put in an answer of 1400 folio, to a bill of 1200 folio, and to whom Lady Glamis owed large sums.
The Lord Chancellor was clearly of opinion that Gibbs had no claim on the fund arising from the annuity of 550/. With respect to Fernie, he would read the petition and orders in the causes, before he would decide against him.
His Lordship on a subsequent day said, Fernie was trustee of the annuity of 550/., and there was no doubt that the fund in Court arose out of the proceeds of that annuity. But Fernie and the other defendants to the last suit, concurred in assigning the annuity and all the arrears thereof; and he passed all his interest in the annuity by executing the deed of assignment, pending the suit against him. If lie had a claim on the fund in Court, he ought to have asserted it before he executed the assignment. The Vice Chancellor's order must be enlarged by ordering the fund in Court to be paid over to the petitioners. It was clear that Mr. Fernie had no more a lien on it than Gibbs had, and he had none. Fernie had been trustee of the annuity, but not of the arrears.
Ei parte Lady Glamis in Braham v. Bowes, Westminster, April 15th and 20th, 1837.
26 Superior Courts: King's Bench.
[Before the Four Judges.]
AFFIDAVIT OF DERT.
The description given of himself by a deponent in an affidavit to hold to bail, that he is "acting as managing clerk" to the plaintiff's attorneys is not sufficient; and trhere a defendant teas held to bail on such an affidavit, the Court made a rule absolute for discharging him from custody. Sir W. Follett and Mr. Wightman shewed cause against a rule for discharging the defendant out of custody, on the ground of an alleged irregularity in the affidavit to hold to bail. The deponent was a clerk in the office of persons who were the plaintiffs attorneys, and in the affidavit he described himself as " G. W. S., acting as managing clerk to A. B. and C.
of , the attorneys for the said plaintiff."
There had been two objections made to this affidavit: first, that it did not give the place of abode of the deponent; and next, that it did not sufficiently describe his connection with the plaintiff. It was quite clear that in both these respects the affidavit was sufficient. As to the first, in Alexander v. Milton,» it was decided that in an affidavit by an attorney's clerk, he might state the place of business of his employer as his residence; and in an anonymous caseb that he might be described as residing with his employer, whose addition was stated, and that too, although at night he slept at another place, Haslope v. Thorne.c These cases shewed that the deponent here had properly described himself. Then, as to Ids connection with the plaintiff: in the first place, it had been held in A7ng v. Lord Turner,A that it was not necessarv that a deponent in an affidavit to hold to bail should shew that he was the agent of or connected with the plaintiff.
Mr R. V. Richards, in support of the rule, said that he did not mean to rely on the last objection; but as to the other, he contended that it was fatal The affidavit here did not describe the deponent as the clerk of the plaintiffs attorneys, but said merely that he was "acting as managing clerk to them." That might mean nothing at all. Any clerk of another attorney who stepped into the office while the regular clerk was absent, might be described as acting as managing clerk. The words gave no real description of the party, for a momentary and accidental employment might justify the use of them.
Lord Denman, C.J.—We think the affidavit too loose. The description of " acting as managing clerk," might, as contended, be assumed by any one while the clerk himself had stepped out for any temporary purpose.
Mr. Justice Littler/ale.— This is not the usual form; why did uot the deponent describe him
self to be the managing clerk ?" Acting as managing clerk " means nothing.
Mr. Justice Patteson and Mr. Justice Coleridge concurred.
Rule absolute.—Graves v. Browning,' E. T. 1837. K. B. F. J.
8TATUTE OF LIMITATIONS. NEW TRIAL.
Where, without any fault on the part of a plaintiff, but through the pressure of business if the Court, judgment in a case teas delayed till the expiration of six years from the time if the cause of action arising, the Court irould not after such judgmentwas entered, set it aside and grunt the plaintiff the liberty to try the case again, although tip the refusal to do so the plaintiff, trho had had a verdict on the merits, but hud been deprived of it on a technical ground, would be barred from any remedy whatever.
The Attorney-General moved for a rule to shew cause why the rule made absolute in this Court in Hilary Term lasta should not be discharged, and a new trial granted, and why the Judge's notes of the first trial should not be read as evidence at the second trial. He founded his motion upon an affidavit which stated that this was an action for freight upon a charterparty, in which a verdict had been taken for the plaintiff for a sum of 6G8/., subject to a motion for a nonsuit. The ground on which that nonsuit was applied for was, that a notarial copy of the charterparty had been improperly received in evidence, aud this Court acting upon its own rules of evidence, in opposition to those of a foreign Court, had, upon argument, held that such copy was not evidence without proper proof being first given that when made it had been duly compared with the original. The rule for a nonsuit had therefore been made absolute, and the plaintiff had paid the defendant the costs in the regular manner. The object of the present application was that the plaintiff might be allowed to have a new trial of the old action, for otherwise he would be barred from nil remedy whatever. The action was brought in the year 1829. Every fact in the case was disputed, and the plaintiff had to obtain evidence from Batavia and other places, and the time occupied in preparing the case to be brought into Court without any delay whatever on the part of the plaintiff, extended from 1829 to 1834. It was then tried, and the verdict was given for the plaintiff upon the merits j but that verdict was afterwards set aside and a nonsuit entered, on the ground already stated. The case stood for above a year and a half in the new trial paper before the rule for the nonsuit was decided. In the meantime the statute of limitations had run, and the plaintiff had no course now open to him but to apply to this Court for its assistance to enable him to try the case again as upon the former action, since any new action would
c See ante, p. 12.
» See ante, L. 0. vol. xiii. p. 440.
Svpcrior Courts ." K. B. Practice Court; Common Pkas.
be barred by the statute. He claimed this as sistancc because the delay in disposing of the rule was not owing to him, but to the state of the business of the Court, over which he had no control, and from which he ought not to suffer injustice.
Lord Den man, C. J.—The whole of the case was before us when the rule for the nonsuit was argued, and we might then have had the power to impose terms on either party. We have not that power now. We should be anxious to do all that we can in a case like the present to further the ends of justice, but after verdict and judgment we do not think that we have the right to interfere We should be glad to assist the plaintiff if we had the power, but under the circumstances existing here, we think that we have it not.
Mr. Justice Littledale.—There is one instance in which the Court has interfered by its power to supersede even the provisions of a statute for the purpose of preventing injustice—I mean the statute of Charles 2, for the assignment of errors, but that was where the delay was directly the act of the Court, and the Court would not allow the party to be prejudiced by it. Here the Court did not directly create the delay, and it is now out of the power of the Court after judgment, to impose terms on this defendant.
Mr. Justice Patteson and Mr. Justice Coleridge concurred.
Rule Refused.—Brown v. Thornton, E. T. 1837. K. B. F. J.
Binji'B iSriuh fJrattite Court.
EJECTMENT.—SERVICE OK DECLARATION.— AGENT.—ABSENCE ABROAD.
If it appears that a tenant, against trhom an action of ejectment is brought, has gone abroad in distressed circumstances, and there does not appear any probability of his return, the declaration may be served on the servant of the tenant, tcho is left in care of the premises.
This was an application by Butt for leave to sign judgment against the casual ejector. The affidavit on which he moved, stated, thai the deponent had gone to the premises sought to be recovered, and found the only person in possession to be a female servant. She informed the deponent that her master was not at home, but had gone abroad in pecuniary difficulties, and it was uncertain when he would return. The deponent then served a copy of the declaration in ejectment in the usual way, with the usual explanation Under these circumstances, it was submitted, that the service was sufficient. It was impossible to proceed as in the case of a vacant possession; because there was furniture and other property on the premises.
Williams, J., was of opinion that the circumstances disclosed were sufficient to allow the lessor of the plaintiff to sign judgment against the casual ejector.
Rule granted.—Doe d. Fry v. Roe, E. T. 1837. K.B. P. C.
STAT OF PROCEEDINGS ON THE BAIf» BOND. — PREVENTION FROM GOING TO TRIAL.
A motion fur the stay of proceedings against the Ijail in an action unit prevail, unless there shall have been on absolute, substuntinl prevention from going to trial in the term, at the time of mahing the application.
Busby shewed cause against a rule obtained by Henderson for staying the proceedings against the bail, the bail-bond standing as a security, on payment of costs. It appeared that the arrest had taken place on the 28th March, and the bail bond bad been given on the 4th April. Notice of special bail was given on the 6th, for justification on the 8th, but they did not finally justify until the 19th, and the present rule bore date on that day. On the 5th April, the plaintiff had declared conditionally, laying the venue of his action in London; on the 6th he gave a rule to plead, and on the 8th he took an assignment of the bail bond, and proceeded on it. The Sittings in term in London, were fixed forthc21staud 28th days of the month. It was now submitted, that it was quite clear that the plaintiff by the defendant's neglect or delay, had lost a trial on the 21st, because if the bail had justified according to the original notice, on the 8th of the month, the declaration having been delivered on the 5th, and the rule to plead having been delivered on the 6th, the defendant must have pleaded on the 9th, and the plaintiff might have joined issue and given notice of trial on the 10th, by which means the trial might have been had on the 21st. The justification, however, not having taken place until the 19th, this trial was lost, and it was a question whether the plaintiff was not also precluded from going down to trial on the 28th. The present rule was dated on the 19th of the month, and cause could not under any circumstances be shewn before the 21st; so that even then the trial would have been lost, as the plaintiff could not have completed the record and have given proper notice. The proceedings, besides, in the original action were stayed by those which were taken on the bail bond. This was clearly the case laid down by Mr. Tidd in his Book of Practice, 9th ed. p. 300.
Henderson, in support of his rule, said that the reason the bail had not justified at an earlier period than on the 19th, was, that there had been some error of form only. The words of the R. G. H. T. 2 W. 4. rule 5, (1 D. P. C. 199A weie these, " upon staying proceedings either upon an attachment against the sheriff for not bringing iu the body, or upon the bail bond, on perfecting bail above, the attachment or bail bond shall stand as a security, if the plaintiff shall have declared de bene esse, and shall have been prevented for want of special bail being perfected in due time, from entering his cause for trial, in a town cause, in the term next after that in which the writ is returnable; and in a coun