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258 Selections from Correspondence.—
Superior Courts: Lord Chancellor.
death, and in his power: that us to this, which is in statu quo, the will shall operate.
This view is confirmed by see. 24, which enacts that a will, as to the property therein comprised, shall be taken to speak as at the death of the testator; and it is also confirmed by^the index to Mr. S.'s pamphlet, tit. Will, where his construction uccords with mine. "(Fill not rendered inoperative by any subsequent conveyance or act, " are his words.
The most monstrous injustice might be the consequence of a contrary construction, as will be evident when it is considered that upon that construction a party might devise an estate to A., keep his will quiet, afterwards sell the estate to B., and on his death. A., the devisee, would be entitled to claim the estate against a purchaser for valuable consideration. This, I conceive, would never be allowed.
[On referring again to Mr. Stewart's pamphlet, our correspondent will find that the marginal note to sec. 23, and the analysis following it, are not that learned author's, but the words of the framers of the act; and that Mr. Stewart has endeavoured to give his construction of it in the index, as is mentioned by W. F., with whose construction of the act we perfectly agree. W. F. points out an erratum in a note at p. 23 of the same work, line 8 from the bottom, "for no copyholds or leaseholds," read "only copyholds or leaseholds." Ed.]
SELECTIONS FROM CORRESPONDENCE.
REMEDY AGAINST RAILWAY COMPANY.
T} the Editor of the Legal Observer.
I am very desirous of learning from some of the practical men who read your useful and intelligent Journal, whether there is any proceeding which I can resort to, to compel a railway company to take lands which they have given me notice they shall require, and which, in fact they set out in the schedule of their act. The consequence of my receiving such a notice has been to prevent my letting the pro
Eerty in the beneficial way 1 might otherwise ave done, and now a printed intimation is sent to me, to the effect that the company will not require my land for any of the .purposes of their act.
This must be a case of frequent occurrence, and some of my legal friends tell me that I can get redress by applying to the Court of Queen's Bench for a mandamus; but before I make such a motion, I should be glad if any of your readers can inform me of a precedent for such a proceeding.
[Our Correspondent should look at the particular powers given by the act under which the railway company ure authorized to proceed with the project. Ed.]
Attorney's Charges On Journeys. Sir,
A country attorney goes to London on business, and charges for his time (say five days) the usual charge per day. He also makes specific charges to his client for attendances in town respecting the same business which was the subject of his journey, and also for other business. Does not the general charge per day cover every attendance, whether upon the business causing the journey, or any other which the attorney might be conducting for his client?
I may ask further whether there would be any difference, supposing the usual number of hours which are considered as constituting a day for professional men, were materially exceeded? X.
William IV. As A Law Reformer.
Your article in the number of June 24th, I have read with much pleasure. It very clearly points out the several acts which have passed during the reign of William 4, amending our laws .- and which deservedly put this Sovereign at the head of our legal reformers.
With several of your country readers I have to request you will furnish us with a fuller explanation of the several acts of parliament enumerated in the above article. By shortly giving us the particulars of each of these acts, we should more clearly comprehend the nature of the reform our laws have undergone during the reign of William 4. This information would give us an extended and connected legal history of this reign, and point out to that which has commenced a similar course to pursue, to improve our legal institutions. M.
[We have already in our preceding Volumes given a very full account of all the measures referred to by our correspondent. This work was commenced at the beginning of the reign of William the 4th, and thus forms a history of the progress of Law Reform down to the present time. Perhaps-our friend will excuse our complying with his request under these circumstances, and allow us to devote our space to matters of immediate interest. Ed.]
loro" GhanrcITor'S Court.
PRACTICE.—SHORT CAUSES. APPEAL.
A cause set down fur farther directions at the Rolls, teas ordered to be adcunced, and put in the list of short causes, on the application of one party, the other opposing it, but not alleging that the cause was not fit to be heard as a short cause. Such an order regarding the mode of hearing causes is not subject to appeal, Semble.
This cause stood for hearing for further directions in the general list of causes at the
Rolls, and an application was there made on behalf of the defendant, that it might be set 'down for the next day for hearing' short causes, on the usual ground for such application, that it would not take up much time and there could be no argument, as the decree to be made ivas merely consequential on the master's report. The application at the Rolls was opposed on behalf of the plaintiff, first, on the ground of the plaintiff's absence, and that the solicitor was not fully instructed; and secondly, on the ground that it wus contrary to practice to advance a cause on the application of the defendant, unless there appeared to be a want of ilue diligence in prosecuting the cause, which could not be alleged where the cause was set down in the general list for hearing. It was not alleged that the hearing of the cause would take tip much time, or that it was not a fit cause to be beard as a short cause, but although the decree would be consequential on the report, and one of course, it was insisted that the taking of causes out of their turn, was an innovation on the practice of the Court, would be often a surprise on some of the parties, and ought not to be done in any case without the consent of all.
The Matter of the Rolls stated the rule of practice as laid down by him in Mountford v. Cooper,* in respect to the advancing of causes, to be this,—where a cause is already set down, and ought to be ready for hearing, and would lie heard if other causes did not stand before it, an application is made to the Court, any day after that on which it ought to have been ready for hearing has elapsed, to set it down for an earlier day than that on which it could be heard if it waited its turn in the general paper, on the ground that it will not take time, and that the causes over which it is advanced will not be much delayed by the hearing of it before them. The Court in granting an application of that sort, requires the assurance of counsel that the cause is a fit cause to be so advanced. Such assurance was given in this case on one side, and the counsel on the other side opposing the application, did not allege the contrary. He did not adopt the rale without great deliberation and the advice of gentlemen of great experience. There was no specially in the present case, to take it out of the rule he had laid down. He relied on the opinion of counsel as to what might lie beneficial to the interests of the suitors generally, without reference to what their clients in any particular case would wish.
The cause having been ordered to be set down for the next day of short causes, the plaintiff moved by way of appeal before the Lord Chancellor.
Mr. Wright for the plaintiff, after stating the facts said, this was an innovation on the established practice of the Courts, which was likely to lead to serious inconvenience. For upwards of a century, it had been required, not only that the plaintiff should certify that the cause was a fit one to be heard as a short
cause, but also that the consent of all the defendants should be obtained, previously to setting down a case for so hearing it. In the present instance, the .Master of the Rolls had announced an intention to hear any cause in this manner, at the request of any party, unless his opponent shewed that it was not proper to be so heard; a similar application had been made to the Vice Chancellor a few days ago, to which his Honour, after deliberation, and consulting with the bar, and referring to the solicitors of the Court, declined to accede. If the present order be allowed to stand, there will be a different rule of practice in the different branches of the Court; and among other difficulties which will result, the time of the Courts will be occupied as long in discussing whether a cause should be placed in the short list as it would require to hear the cause itself.
The Lord Chancellor said it would be very inconvenient if a difference were established in the practice of the several Courts of Equity, but he did not imagine any general rules of practice were affected by the present case. It was quite clear the Master of the Rolls had an original jurisdiction, and possessed a power to tegulate the paper of causes in his Court. An application had been made to advance a particular cause for hearing. The Master of the Rolls thought it reasonable to grant the application, and the short list was named merely as the mode in which the cause was appointed to be heard; and though the application was opposed, no sufficient reason was alleged against the hearing of the cause in that mode. But even if his lordship thought the order inexpedient, he very much doubted whether he could interfere with the mode in which the Master of the Rolls thought proper to conduct the business of his Court. The motion was refused with costs.
Hutcltinton v. Stephens, at the Rolls, July 5; and before the Lord Chancellor, July 10, 1837.
©fee Cfjancrlujr'2 Court.
PRACTICE. SHORT CAUSES.
Held, that a cause which could not be stated without argument, ought not to be set down for hearing as a short cause, without the consent of the defendant.
The following case was referred to in the argument before the Lord Chancellor in the case of Hutchinson v. Stephens.
Mr. Girdlestone applied on behalf of the plaintiff to set down as a short cause, a cause which stood in the general list. The defendant gave notice that he would oppose the application, but it was the practice at the Rolls to set a cause down in the short cause list on the application of either party, although opposed by the other. Mountford v. Cooper*
Mr. Kenyon Parher appeared for the defendant to oppose the application.
Superior Courts; Vice Chancellor; Rolls; King's Bench.
The Vice Chancellor asked if there was any question for argument in the cause.
Mr. Girdlestone.—There was a point in dispute.
His Honor the Vice Chancellor said, this could not be set down as a short cause without the consent of all parties. To allow a cause to be so set down in defiance of the defendant, would be introducing a new head of litigation into the Court; for in every such case the question would arise whether the cause was fit to be heard as a short cause. The application was refused.
Kerr v. Cusue, Sittings at Lincoln's Inn, July 1st, 1837.
BILLS OF COSTS.—LIKN ON PAPERS.
Held, that although a folic itnr admitted that he received from his client more than his hills of costs amounted to, yet as the charges in the hills were disputed, he teas not hound to give up the client's papers until the bills should he taxed.
Mr. ./. Ritssrll and Mr. Wileor supported a petition presented by Colonel Gordon, stating, among other things, that Mr. G. W. Poole had been for some years solicitor and agent for the petitioner in this and in other cases concerning certain trust estates; that by an indenture dated September, 1834, Mr. Poole who was party thereto, admitted that he had received of the petitioner altogether in respect of costs 9,852/. 9s. \0d., and it was thereby agreed between them to refer the bills of costs of Mr. Poole to be examined by a respectable solicitor, by whose award thereon they were to abide. The bills of costs were accordingly submitted to Mr. Smart, a solicitor, who after examining them, awarded that he had reduced the bills against the petitioner referred to him, and amounting to 5578/. 6s. to 3209/. 0s. 8d., chiefly by disallowing two bills amounting to 1700/. altogether, as not chargeable to the petitioner in the matter of the trust estates; and that he found that 3,546/. 17*. 6d. had been paid to Mr. Poole in respect of those bills; and he awarded Air. Poole to pay back the difference to the petitioner. The petition further stated, that Mr. Poole had since delivered f urther bills of costs for business done for the petitioner and for his sister and others, amounting to upwards of 600J/,, but he denied that he had ever employed Mr. Poole in some of the matters for which he made charges in these bills: he further alleged that Mr. Poole had in his possession several deeds and documents which were necessary to the petitioner for the due prosecution of the suit; and he prayed that as the sum acknowledged by Mr. Poole by his deed to have been received, exceeded the amount of all his bills of cost, even without taxation, he might be ordered to give up the deeds, &c., and that the bills might be referred tor taxation. Mr. Tinney and Mr. Koe, for Mr. Poole,
insisted that he was still a creditor of the petitioner to a large amount, notwithstanding the acknowledgement by the deed of lffit The reduction in the bills submitted to .Mr. Smart, was not because the charges were un. reasonable, but because Mr. Smart was of opinion that some of the bills were charged to Colonel Gordon, which ought to be charged to others. In the sum of 9852/. 9s. l04., uknowledged by the deed of 1834 to hare heen received, a large portion of that sum m money paid to Mr. Jonas Frazer, a writer tij the signet in Scotland, and former agent of Colonel Gordon, and never received by Mr. Poole. It was quite irregular to call for the delivery of the deeds from Mr. Poole until his bills of costs were settled.
Lord Longdate, M. R., was of opinion that as the deeds and documents in the possession of Mr. Poole may be necessary to enable him to vouch for the charges in the bills, it would not be just to call on him to deliver them up, until the bills were taxed and settled. It w» certain that Mr. Poole admitted hv the deed that he had received 9,852/. 9s. 10rf., which would more than pay the whole of the hills of costs. The admission in the deed might hare been erroneously made, but it stood ajainst Mr. Poole in this proceeding. Under these circumstances, all that the Court could do was to refer the bills of costs to be taxed. He thought that in the mean time the petitioner ought to have leave to inspect the deeds and papers when necessary; but as he did not pray to that effect by his petition, the Court could not make such an order.
Gordon v. Dalzell, Sittings at the Rolls, July 11, 1837.
iatng't f Bend). [Before the Four Judges.]
The 58 G. 3, c. 93, applies only to persons discounting hills or notes, or paying 1 valuable consideration for them, and mil not therefore protect a person teho takes in part payment of an existing debt a tuk tainted with usurt).
But the 3 4- 4 W. 4, c. 98, will protect inch person, if the note is payable within three months; and a note payable on demand ii within that statute a note payable tcilhin three months.
Assumpsit on a promissory note, accepted bv the defendant on the 21st October 1833. The defendant on the 25th January 1834, drew another note in favor of a person named Ward, and both notes were indorsed by Ward to Broomhead, who endorsed them to the plaintiff. The defendant pleaded that before the making of the note it was corruptly agreed between the defendant and Ward, that Ward should lend the defendant a sum of 45/. and that the defendant should pay him 51. orer and above the lawful interest for the same, and that on payment of the sum thus agreed upon he should make the note on the declaration
mentioned, and that in performance of that unlawful agreement, he did make the note, and that in fai t Ward only lent him the sum of 34/. &c. : averment of usury &c. Replication, that the note was given to the plaintiff, tor a food consideration, namely, for work done by the plaintiff for Broomhead, and that plaintiff did not know that the defendant had given the note to Broomhead in the performance of an usurious bargain. Demurrer to the replication.
Mr. Cressurell, in- support of the demurrer. The plaintiff cannot establish any legal title to sue on this note, on the 58 G. 3, c. 93, or H4W. 4, c. 98, or the 5 & 6 W. 4, c. 41. The first of these acts refers only to persons who advance money on discount or as payment of consideration, not knowing of the usury at the time of discount or paying of the consideration. Here, the note was not discounted, nor was any payment made in consideration of it, but it was given to secure the payment of an antecedent debt. There was no value given for it at the time, nor was there any new credit on account of it. An antecedent consideration would not he good to support an action under these circumstances. Then comes the 3 & 4 W. 4, c. 98, 8. 7, which was passed to facilitate the discount of bills. That section of the act protects parties from loss where bills are payable within three months after date, or where notes are given not having more than three months to run. This note does not come within the description in that statute. There must be some certain time of forbearance: here there is none. Forbearance for an uncertain time is not a consideration for a promise: it is a nudum pactum. [Mr. Justice Coleridge.—How can there lie usury if there is no forbearance ?] There must of course be forbearance for a moment. But if the party has the 5/. for that time, the shorter the time the greater will be the usury. Here, the note is for a certain sum, payable on demand. It cannot be contended that a note payable on demand is the same as a note payable within three months. Then comes the 5 & 6 W. 4, c. 41, the second section of which enacts, that money paid to the holder of illegal securities shall be deemed to be paid on account of the person to whom the same was originally given. The answer to that act so far as the present case is concerned, is, that it has not a retrospective operation, that it does not apply to actions brought after, but to notes made before it passed. That act therefore cannot set up this note.
Air. While, contra.—The last statute recites the 15 & 16 Car. 2, and the 8 & 9 Anne, and the 10 W. 3, all of which relate to gaming, and that section clearly has a retrospective operation. But this case may be determined on the recent Bank Note Act. By the 3 & 4 W. 4, the notes and bills not having more than three months to run are protected in the hands of a bond fide holder, though their original creation may have been tainted with usury. [Mr. Justice Coleridge.—Does not that apply to bills and notes of a long date, but having then
only three months to run ?] That does not appear to be its construction. The time it has to run must be calculated from its date. [Lord Denman, C. J —Here the bill is payable whenever the drawer thinks proper.] This is a bill drawn, payable on demand, and therefore payable within three months, and must be so considered. The statute in effect says, nor shall the liability of any party to any bill payable within the three months be affected by reason of any statute against usury. [Mr. Justice Patteion.—There must be a misprint in the statute.] It may be so; but as long as these words stand in the statute book, the Courts must act upon them. The party who hands over a bill payable on demand, expects that it will be held for sometime, and will not be presented on the instant. The custom of merchants is to hold it for a short period. Hut, whether presented on the instant or in a month afterwards, it is clearly an instrument payable within three months, and as such is within the protection of the statute. It is clear that the bill here was received in part payment of a debt, which debt might then have been enforced, but was forborne, and it consequently falls within the provisions of the 58 G. 3. The preamble of that statute is more extensive than the enacting part, and must be taken to explain to what cases the latter was intended to apply. The consideration here was the doing of the work, and that consideration was passing at the time that the note was given. It was a mercantile transaction within the words of the statute. [Mr. Justice Colr-ridge.—Then do you mean to say, that if between the time of doing the work and taking the bill the plaintiff had received notice of the usury, the bill would still have been good ?] It is not necessary to press the argument to that extent The party here might have sued Broomhead, but instead of doing so he took the bill, so that in the words of the act he was "paying a consideration" for it at the time.
The Court took time to consider the question.
Lord Denman, on the last day of Trinity Term, delivered judgment in this case. This was an action on a promissory note. The case was argued in the course of the last Term. The plea was, that the promissory note had been given for an usurious consideration. The replication was, that the plaintiff did not know of the usury, and that he took the note for a valuable consideration. There was a demurrer to this replication; and the question was, whether the replication was good, and the note was available in the hands of the plaintiff under the 58 G. 3, c. 93. It was contended, that so far as that statute was concerned, it was intended to repeal the law formerly tlisting. It does not, however, appear to us, that that statute repeals the statute of Anne, or any of its provisions. It does not even mention that statute. Does it then give validity to bills and notes of this description? It recites that, " Whereas by the laws now in force all contracts and assurances whatsoever for payment of money made for a usurious consideration are utterly void: And whereas in the course of mercantile transactions negociable securities often pass into the hands of persons who have discounted the same without any knowledge of the original consideration." The reciting part therefore only applies to negociable securities discounted in the course of mercantile transactions. But the enacting part goes farther than the preamble, and is in these terms: "That no bill of exchange or promissory note that shall be made or drawn after the passing of this act, shall, though it may have been given for a usurious consideration, be void in the hands of an indorsee for valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration, actual notice that such bill of exchange or promissory note had been originally giveu for a usurious consideration." The enactment is not that the note shall not be void in any hands whatever, but only in the hands of some persons under peculiar circumstances. The note declared on in this case is not stated to have been discounted by the plaintiff, nor is it alleged that he paid any valuable consideration for the same, so that in neither respect has the plaintiff brought himself within the words of this act. Another question then remaining is, whether the note is set up by the recent Bank Act, J & 4 W. 4, c. 98. That statute, in section /, enacts, that *' no bill of exchange or promissory note made payable at or within three months after the date thereof, or not having more than three months to run, shall, by reason of any interest taken thereon or secured thereby, or any agreement to pay, receive, or allow interest in discounting, negotiating, or transferring the same, be void." The argument was, that this enactment applied to such bills only as were accepted for a time certain, and that though the transaction, here stated to be usurious, may have been improvident on the part of the defendant, yet that the bill being payable on demand, came within the words of that act as a bill payable within three months, and was therefore, when it came into the hands of a bond fide holder, protected by the provisions of that statute. We adopt that argument, and are of opinion that a bill payable on demand comes within the provisions of the statute. We are not driven therefore to consider the other words of the statute, which are, however, used copulatively with the preceding portion. In consequence of our coming to this conclusion on the Bank Note Act, it will be quite unnecessary for us to consider the effect of the 5 & (i W. 4, c. 41, which was also referred to in this argument.
2G2 Superior Courts: King's Bench; King's Bench Practice Court.
Vullance v. Sidwell, T. T. 1337. K. B. F. J.
fUrtjj'jl JJrrttl) practice Court.
NOTICE OF APPLICATION FOB CERTIORARI.— TIME OF OBJECTION. PARTIES OUJKCTINti.
Service of a notice of an intended application fur a certiorari on one justice who was present at the making of an order at quarter sessions, and upon another who
teas absent, is not sufficient under the 13 G. 2, c. 15. An objection to the sufficiency of the notice is not too late after the writ has issued, although the consequence may be, that the time in which n writ can be sued, may pats, and a fresh writ cannot be obtained. The parties in an appeal are competent to
object to the notices. Milter had obtaiued a rule nisi for quashing a writ of certiorari for bringing up an order of the justices of Warwickshire, made at the quarter sessions at Midsummer, 1836, in the matter of an appeal against the accounts of the overseers of the parish of Rugby. The ground on which the rule had been obtained was, that before the certiorari was obtained, notice of the application had been served only on one justice, who was present when the appeal was heard, and on another justice who was not present at all, but who was a justice for the county, and that the notice was therefore insufficient. The certiorari was delivered to the Court on the 18th October.
IFaddington now shewed cause. The first objection was that the provisions of the statute of 13 G. 2, c. 18, s. 5, which required that notices of such an application should be served on two justices who had made the order six days before the making the application, had not been complied with. This ground how. ever could not prevail, because all the justices of the Court were supposed to make the order, and notice on any of them, therefore, was sufficient. If, however, the notice should he held to be insufficient, the time of making the objection was now parsed, for it should have been represented to the Court, when the rule for the certiorari was nisi. If the present rule should be made absolute, the parties who applied for the certiorari would be deprived of their remedy, for the six months in which it must be sued would be passed, in consequence of the delay in applying to set it aside. There was an objection however, which might be made to the application, namely, thatjthere was no proof that the applicants were at all interested in the matter of the appeal. Danifi v. Phillips, 4 T. R. 499.
Miller and Daniel, in support of the rule, urged that the words of the statute were imperative in requiring two of the justices who had made the order to be served with notices. Rest v. The Justices of Sussex, 1 Maul. & Sel. 631, shelved that the act must be strictly followed, and it was evident that that had" not been done here, for the justice who was absent and who had been served, could not be said to have been one of those who made the order. There was nothing to shew that the rule for the writ had been nisi, and therefore the objection as to that point must fail. The cases of Rex v. Wakefield, 1 Burr. 488, Res v. The Justices of Kent, 3 B. & Ad. 250, and Rex vNicholls, 5 T. R. 581, n. were decisions as to the application being too late. The case of Daniel v. Phillips, did not apply, as here the persons at whose instance the application wa> made, were those interested in the event of the appeal. Cur. adv. vult