Superior Courts: King's Bench Practice Court. 263 Humfry contended in support of his rule, that the only object which the Court had in view in requiring the affidavit of merits to be made by the defendant, his attorney or agent, was, that they might be assured that the deponent was competent to speak of the merits of the cause. It was sufficiently clear in this case, from the affidavits produced, that the deponent was acquainted with the case, and in fact that he was the defendant's attorney. Patteson, J., in Easter Term delivered judg-1 of the imperfect description of the deponent. ment. The contention on this rule was, whe. He described himself merely as "William ther the justices had been rightly served with Russell, of 7 Norfolk Street, Strand, Gentlenotices according to the act of parliament. It man ;" and although he might be an attorney, was contended by Mr. Waddington, that ser- there was nothing to shew that he was the vice on any two of the justices of the county attorney of the defendant in the action; or would have been sufficient; but that is a very that he was in such a situation, as that he strong proposition, and although I have been could know anything respecting the merits of unable to find any authority on the point, yet the cause One of the affidavits produced in I am fully satisfied that the act requires ser- support of the rule, it was true, described the vice to be on two of the justices, who were deponent as clerk to Howard and Russell, of present when the order was made, and who 7, Norfolk Street, attorneys for the defendant; were parties to making it. Here, one of the and another shewed that one William Russell, justices served was absent, and I am of opinion, who lived at the same place, had acted as attherefore, that the service was bad. There torney for the defendant; but these could not were several other objections taken, which be called in aid of the affidavit of merits. He however, it is not necessary that I should de- cited the cases of Morris v. Hunt, 1 Chit. Rep. termine, for the rule must be made absolute 97; and Rowbotham v. Dupree, recently deon this point alone, but there was one to which cided in this Court. it will be necessary to refer. It was contended that the application was too late, but in answer to this, the case of Rex v. Nicholls, was cited, on the authority of which, I think the motion was in time, without deciding, how ever, that in all cases such a motion may be made after any lapse of time. In that case a rule nisi for a certiorari was obtained in Hilary Term, no notice of the intention to move having been given. The rule was obtained on the 3d February, was served, and there being no cause shewn, it was made absolute on the 10th, so that six days elapsed between the obtaining the rule, and the making it absolute. In Easter Term a motion was made to quash the certiorari, and the Court said that it was usual to give the notice before moving the rule nisi. On the face of the report it does not appear that the objection that the application was too late was inade, but there is no doubt that it was, and the Court said that the rule nisi was not notice to the justices, and quashed the certiorari. That was a case directly in point. There was another matter urged, that the respondents in the appeal were not competent to object to the sufficiency of the notices to the justices. The justices themselves may have been injured, and may have been desirous of supporting their own order, but the objection being brought under the notice of the Court, I am bound to deal with it. The rule must be absolute. Rule absolute accordingly.-Rex v, Rattislaw, E. T. 1837. K. B. P. C. AFFIDAVIT OF MERITS.-DESCRIPTION OF DE PONENT. In an affidavit of merits produced on an application to stay proceedings on the bail bond, if made by an attorney, he must be shewn to be the attorney of the defendant, although a person of the same names, and resident at the same place, may, on other affidavits, appear to be the attorney of the defendant. Humfry had obtained a rule nisi for staying proceedings on the bail bond on payment of costs, against which Barstow shewed cause. He took an objection to the affidavit of merits, on the ground Coleridge, J.-It is quite consistent with these affidavits, that there may be another person of the name of William Russell, living at No. 7, Norfolk Street, who is not the defendant's attorney. The strict practice of the Court should be followed. Rule discharged.-Bonnefor v. Russell, E. T. 1837. K. B. P. C. SERVICE OF WRIT OF SUMMONS. The usual number of calls must be made, in order to serve a defendant with a copy of a writ of summons to entitle the plaintiff to a distringas, although the defendant may have said that he would take good care that he was not served. Helps moved for permission to sue out a distringas with a view of compelling the defendant to enter an appearance. It was stated in the affidavit that two calls only had been made at the defendant's house, and that a copy of the writ of summons was left the second time, but it was also sworn that the defendant, in allusion to this action, had declared his intention to take good care that he was not served with any writ. The principle on which the writ of distringas was granted, was, that the defendant kept out of the way. That fact was sufficiently proved here already. He cited Hill v. Morde, 2 D. P. C. 10; 1 Cr. & Mee. 617; 3 Tyr. 162, n.; White v. Western, 2 D. P. C. 450; and Hickman v. Dallimore, 1 Harr. & Wol. 524; 4 D. P. C. 278. Williams, J.-There is no reason why the third call should not have been made, and the copy of the writ then left, according to the ordinary practice. The plaintiff is not entitled to his writ. Rule Refused.-Clayton v. Marsham, E. T. 1837.-K. B. P. C. 264 Miscellanea.-The Editor's Letter Box. MISCELLANEA. LAW REEORM. The common laws of England are settled and known. Every entire new model of laws labours under two great difficulties and inconveniencies, viz. First, that though they seem specious in the theory, yet when they come to be put in practice, they are found extremely defective; either too strait, or too loose, or too narrow, or too wide, and new occurrences, that neither were or well could be at first in prospect discover themselves, that either disjoynt or disorder the fabrick, and therefore such new modells continually stand in need of many supplyes and abatements and alterations to accommodate them to common use and convenience, whereby in a little time, the original is either wholly laid aside, or in a great measure lost in its amendments, and become the least part of the law. Again, were such new entire models of laws, never so good, yet it is a long time before they come to be well known or understood even to those whose business it must be to advise or judge according to them; so that even a more imperfect body of laws, well known at least to those that are to advise or judge, is more of use and convenience to the good of society, than a more perfect and complete body of laws, newly settled, and therefore to be newly learned. Rolls. Abr. pref. by Lord Hale. PUNISHMENT FOR ASSAULTS IN COURTS OF JUSTICE. The 33 Hen. 8, c. 12, subjects offenders as well to the loss of the right hand, as to imprisonment and fine for maliciously striking in the King's Palaces or Courts of Justice, whereby blood is drawn. In Stowe's Annals there is a curious account of the circumstances of the trial of Sir Edmund Knevet, who was prosecuted upon this statute soon after it was enacted: "for which offence he was not onely judged to lose his hand, but also his body to remain in prison, and his lands and goods at the king's pleasure. Then the said Sir Edmund Knevet desired that the king, of his benigne grace, would pardon him of his right hand, and take the left: for (quoth he) if my right be spared, I may hereafter doe such good service to his grace, as shall please him to appoint. Of this submission and request the justices forthwith informed the king, who of his goodness, considering the gentle heart of the said Edmund, and the good report of lords and ladies, granted him pardon, that he should lose neither hand, land, nor goods, but should go free at liberty." the In recent times another case occurred, that of Lord Thanet and others, who were prosecuted by an information filed by the Attorney General for a riot at the trial of Arthur O'Connor and others for high treason_under a special commission at Maidstone. Two of The three first counts charged (inter alia) that the defendants were found guilty generally. the defendants did riotously make an assault on one J. R., and did then and there beat, bruise, wound, and ill-treat the said J. R. in presence of the commissioners. When the Lord Kenyon expressed doubts, whether upon defendants were brought up for judgment, this information the Court was not bound to pronounce the judgment of amputation of the right hand, &c. as required in a prosecution expressly for striking in a Court of justice. In consequence of these doubts, the Attorney General entered a noli prosequi upon the three first counts, and the court pronounced judgment of fine and imprsionment as for a common riot. East, P. C. 438. THE EDITOR'S LETTER BOX. We have been compelled by the pressure of important matter during the course of the present Volume to omit, almost entirely, the Queries and Answers which have been sent us, and we continue to hear objections against their insertion. Anxious to meet the wishes (so far as practicable) of all our readers, we shall at present discontinue this department; nevertheless we are willing to insert any Moot Points or Disputed Decisions of an important kind; provided the proposers of them state the result of their own researches, before they call on other Correspondents to follow up the subject. This method will have the advantage also of better exercising the student than the former plan. We will attend to the request of "A Subscriber to the Analytical Digest." It is our endeavour to include in that part of the work every reported case down to the time of publication; but the plan on which it is compiled, requires some time to elapse in getting it through the press: on examination, however, it will be found that it includes more than any other publication of the kind. Part 3 of the Digest for 1837, will be published on the 18th instant. The singular juxta-position of the matter pointed out by C. C. B. was accidental: far be it from us to design such comparisons as he points out. The Letter of D. H.S. shall be considered. NEW COURTS AND OFFICES OF LAW AND EQUITY. We have on many occasions adverted to the subject of building new Courts and Offices in the Rolls garden, and now resume our labours with a view to aid the accomplishment of that important object. It is probable that a large part of the plan for which we have contended will now be carried into effect. By the 4th section of the late act, 1 Vict. c. 46, (the provisions of which we shall state at the conclusion of this article,) the Commissioners of Woods and Forests, under the direction of the Treasury, may appropriate any part of the buildings and ground comprised in the Rolls estate for the purposes of any of the Courts of Law, Equity, or Bankruptcy, or for Offices connected with the Courts, or for a Depository of Records, or any other purpose connected with the Administration of Justice. The Rolls property extends from Chancery Lane to Fetter Lane, and from Serjeant's Inn and Clifford's Inn to Symond's Inn,-comprising in the whole a space of two acres. The unoccupied ground forming the Rolls garden is amply sufficient for the commencement of the proposed plan, but some of the houses between the Rolls gateway and Serjeant's Inn would be hereafter required to complete the arrangement. We confess that we hope the whole of the Courts of Law and Equity will ultimately occupy this site, which, as the very centre of the Metropolis, is the most convenient of all other places for the Public, and, as the centre of the four Inns of Court, is the most generally convenient for the Profession. We trust that a com mencement at least will be made towards this object, and that whatever may be done will be designed with a view to other buildings which may at a future time be deemed eligible. It is material to point out another act of the last Session, bearing on this subject, namely, the 1 Vict. c. 30, for abolishing several offices of the Common Law Courts and forming a uniform establishment. Amongst the provisions of this act (s. 23), the Masters of those Courts are required to tax costs indiscriminately in all the Courts, and the Judges are directed to appoint a convenient place in which the business of taxation shall be transacted. It is Now nothing could be more convenient for the despatch of business than the plac. ing the chambers or offices of the fifteen Masters of the Common Law Courts in a building adjoining to the new Chambers of the Judges, which have just been erected at the south end of the Rolls garden. well known that the many new and important questions which now come before the Judges at chambers, under as well the Pleading and Practice Rules as the new Statutes, occasion the attendance of counsel and pleaders, and render the personal attendance of attorneys more urgent than in former days; and hence the improved accommodation so long called for has at length been obtained. The act to which we have referred, renders it necessary that a new building, for the purposes of that act, should be erected. The inconvenience is manifest of taxing costs in the Exchequer Office in Lincoln's Inn, and then proceeding to the Temple to complete a judgment in the Queen's Bench or Common Pleas. The whole should be done at one office, a See vol. 1, p. 386; vol. 4, p. 357; vol. 8. and the Masters must, of course, sit in the p. 497; vol. 9, pp. 15, 30, 46, 67, 104; and vol. 11, pp. 295, 438, 472, 494. VOL. XIV. No, 413. same building, though in different apartS 266 New Courts and Offices of Law and Equity. ments. In order to facilitate and expedite | such parts of the Roll Estate Act as bear business, this building should be placed particularly on the subject before us. "That from and after the passing of this act the said mansion house, with the court-yard, garden, stable, coach house, and other houses and buildings thereunto belonging, and the said chapel and several messuages and hereditcalled the Rolls Estate, or the House or Hosaments adjoining or near thereto, commonly near the Judges' Chambers, where the practitioners in waiting to be heard on summonses can in the interval attend the taxation of costs; and indeed it is manifest that all the offices for issuing writs, entering appearances, passing records, signing judgments, and conducting the other busi-pital of the Converts, of which a particular or ness of Common Law actions, should be so near each other that no time may be lost during the limited hours of office attendance. At present these offices are scattered in half-a-dozen or more different parts of the Temple and in Lincoln's Inn, Symond's Inn, and Serjeant's Inn. There is now, under the sanction of these two acts of the Legislature, an opportunity of bringing the whole Common Law business into one convenient situation, and we cannot doubt that the accommodation of the profession will be consulted in the plans which are under consideration. rental is contained in the schedule to this act, and the rents which have accrued or shall accrue or become due for the same from the fifth day of January last, and all other rents and hereditaments which are now vested in the Master of the Rolls by virtue of the letters patent by which he was appointed Master of the Rolls, (other than and except the said office of Keeper or Master of the Rolls, Books, Writs, and Records of the Chancery of England, and subject to such leases of parts of the hereditaments which are now subsisting and have been granted in pursuance of the powers of acts of parliament hereinbefore mentioned or any of them,) and also the said offices in the said Rolls Yard for the examiners, cursitors, clerks of the With respect to the great object, also, of crown and clerks of the petty bag of the High building proper Courts for the Administra- Court of Chancery, and all other messuages, tion of Justice, we may for the present lands, and hereditaments which by virtue of notice, that the plan should at least com- any act or acts of parliament are vested in the prise the erection of Courts for the Sittings Master of the Rolls for the time being, with their in Vacation of all the Judges in Equity and appurtenances, shall be and the same are hereby vested in her Majesty, as part of the possessions Bankruptcy. It should be borne in mind, and land revenues of her Majesty, her heirs and as not improbable, on account of the vast successors, in right of the crown, and shall no arrear of business in the Common Law longer be granted as heretofore to the Master Courts in Banc, that sittings in those of the Rolls for the time being, or annexed to Courts must soon be held in vacation, ac- the said office, and shall be within the ordering cording to the practice some years ago, land, and subject to the provisoes, powers, and and survey of the Court of Exchequer in Engwhen the Judges sat in Serjeant's Inn Hall. authorities contained in the 10 G. 4. c. 50. Be this as it may, it seems necessary that and 2 W. 4. c. 1. and to all such other prothe Equity Sittings of the Court of Exche-visions, powers, and authorities in every respect quer and of the Court of Review in Bank- as the other possessions and land revenues of ruptcy should be properly provided for. It the crown within the ordering and survey of is very inconvenient for all parties, to travel the said Court of Exchequer are subject to. up to Gray's Inn in the one case, or into (Sect. 2.) the Sale Room in Southampton Buildings provided and maintained the said Court of the in the other. Perhaps Lincoln's Inn may Master of the Rolls as one of the Judges of the wish to retain the Courts of the Lord Chan-Court of Chancery, and the rooms adjacent cellor and Vice Chancellor; but as the nature of the cases heard at the Rolls, and the time of sitting, are now the same as in the other Chancery Courts, we should think it would be more convenient to the Bar, as well as to the solicitors, if all the Courts were held in one place. However, we are willing to advance" bit by bit," and would recommend those who have influence in the matter to be content with the accomplishment of any part of the plan which can be obtained. We have not time, at present, to consider the third and remaining point-that of a Depository of Public Records-but subjoin Provided that there shall be continued or thereto, and now used for the administration of justice, or some other convenient court and rooms for the same purposes in the said mansion house, or upon or near the site thereof, or in some other convenient place, and a chapel called the Rolls Chapel, for the performance of divine worship in the said present chapel, or upon or near the site thereof, and also offices to be used and occupied by the said examiners, clerks of the crown and clerks of the petty bag of the High Court of Chancery, for the use and offices now in the Rolls Yard, or upon or near purposes of their respective offices in the said the sites thereof, or in some other convenient places. (Sect. 3.) Provided that it shall be lawful for the said Commissioners of her Majesty's woods, forests, New Courts and Offices.-Construction of the Fines and Recoveries Abolishment Act. 267 land revenues, works, and buildings, by the direction of the Lord High Treasurer or any CONSTRUCTION ABOLISHMENT ACT. By the 3 & 4 W. 4, c. 74, s. 33, when the protector of a settlement shall be a lunatic or person of unsound mind, the Lord Chancellor shall be the protector. three of the commissioners of her Majesty's OF THE FINES AND RECOVERIES Treasury for the time being, at any time or times hereafter to appropriate any part or parts which they may think proper of the messuages, buildings, ground, and hereditaments now called the Rolls Estate to or for the purposes of any of the Courts of any of the judges of the Court of Chancery, or of any Courts of Law, or Equity or Bankruptcy, or of any office or offices belonging to or connected with the business of any such Court or Courts, or for a depository of the records of the Court of Chancery, which are now accustomed to be kept in the said Rolls Chapel, or of any other records of any other of her Majesty's Courts of Law or Equity, or other public records, or for any other public purpose connected with the administration of justice, or the custody or preservation of records or documents, and for such purpose or purposes or any of them to cause any building or buildings thereon to be altered or pulled down, or any building or buildings to be erected thereon. (Sect. 4.) Separate account to be kept of monies received and paid under this act. (Sect. 5.) Sale of stock for paying expences of act and other costs, and residue thereof to form part of consolidated fund. (Sect. 6.) Ancient payments of 451. 7s. 6d. out of the hanaper to cease. (Sect. 7.) Under this section, it is for the Lord Chancellor to consider whether he will give his consent, as such protector, to any disposition under the act; and it would seem that his Lordship will consider himself as standing in the situation in which the lunatic would stand if he were sane. a In the case In re Blewitt, the object was to bar the remainders, which had been limited to collateral relations, and the application was refused by Lord Brougham, C. In Grunt v. Yea, in re Yea, the object was to make a provision for one of the lunatic's family, his son, and Lord Brougham thought that a fit case for his concurrence as protector. In a very late case, the lunatic was tenant for life under a will, with remainRepeal of provision in 23 G. 2. c. 25, direct- der to his children; and, subject thereto, ing the payment of 1200/. by the clerk of the the estate was limited in remainder to his hanaper to the Master of the Rolls. (Sect. 8.) brothers and sisters in tail, with an ultimate That from and after the passing of this act remainder to the right heirs of the testator. the fee or part of a fee received by the Master He had no children, and was not married. of the Rolls for the time being from the registrars of the said Court of Chancery out of the The eldest son of the testator and eldest fees received by them upon every decree or brother of the lunatic was the heir at law dismission, shall no longer be received or be of the testator by whose will the property payable to the use of the Master of the Rolls, was settled, and he had a remainder in tail or be received or payable to the said registrars in one-sixth, with the ultimate remainder from the person or persons by whom such fees in fee in the entirety. An application was are payable to them; and also that the said fee made by the husband of one of the daughters received by or paid to the use of the Master of of the testator, who was entitled, in default of the Rolls upon the admission of any sworn clerk, and the said fee received by or paid to issue of the lunatic, to an estate tail in onethe use of the Master of the Rolls for allowing sixth, praying the Lord Chancellor to cona Marshalsea court writ or warrant to be exe-sent, on behalf of the lunatic tenant for cuted within the liberty of the Rolls as herein- life, to a deed, the object of which was to before is mentioned, shall no longer be received bar the issue of that daughter, and to deor payable. (Sect. 9.) (Sect. 10.) All other fees to be paid into the Exchequer.stroy the remainder to the heirs of the settlor, in order to give this share of the property to the husband and wife to dispose of as they pleased. Lord Cottenham, C., refused the application.c Repeal of provision in 6 G. 4, c. 84. as to salary of the Master of the Rolls. (Sect. 11.) A salary of 7000l. to be paid to the Master of the Rolls in lieu of fees. (Sect. 12.) A salary of 2251. to be paid to the preacher, reader, and clerk at the rolls chapel in such proportions as the Master of the Rolls shall direct. (Sect. 13.) The Master of the Rolls to have the same power of appointing officers as he now exereises, except the Receiver of the Rolls rents. Sect. 14. a 3 Myl. & K. 250. b 3 Myl. & K. 245. In re Newman, 2 Myl. & C. 112. |