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Examination of Barristers.—Superior Courts: Lord Chancellor.

der the Inns of Court from giving periodical prizes for the best essays on legal subjects, and the best histories of particular forms of procedure? It is not the amount of the prizes that would be any object; they might be small or trifling, but the opportunity for those to display the research and learning, which now, alas! "bloom unseen" in many a briefless barrister, and many a sleepless student, without their having the opportunity of making them known to the world.

before any witnesses were examined under the second coinmission.

Mr. Wakefield moved that the depositions taken under defendants' commission be suppressed for irregularity. Publication having passed, and the plaintiff's evidence being in the hands of the defendants, it would be against reason and practice to allow depositions taken under such circumstances to be read in the cause.

Mr. Wigram (Mr. Koe was with him), referred to a long correspondence between the solicitors of the parties on the 11th, 13th, and 16th of October last, from which it appeared that the plaintiff was not apprised of the first commission, or who the commissioners were, or where they sat, until after the examination of witnesses. The plaintiff afterwards, on the 23d of October, joined in the defendants' commission, which was issued on the 29th, and was made returnable for the first day of Hilary

"A hint to the wise," they say, "is enough;" I will not therefore dilate on it, but hope it may not be unconsidered by the benchers of the respective Inns. The Inner Temple has shewn the disposition to be active; they tried, not a very long while ago, some law lectures; but they did not do all that they might or ought to have done, to render them successful. Let them by the effect of giving a few prizes for legal essays on the same terms as they are managedTerm, 1837. The effect of that commission, so at the Universities, and I doubt not they will soon find the success of this plan. Let them not think of the expense of so doing-the prizes may be as trifling as they please. It is the opportunity of distinguishing oneself, and that publicly, that is alone wanted. P. B.

Hare Court, Temple.

[We disagree with our correspondent in thinking that the public would not be benefited by a preliminary examination before the degree of barrister was conferred. Our argument has always been, that the public is injured by the appointment of incompetent barristers to small judicial situations, both at home and in the colonies; and this an examination would tend to prevent.-ED.]

SUPERIOR COURTS.

Lord Chancellor's Court.

PRACTICE.-DEPOSITIONS.-PUBLICATION.

Depositions were taken under an ex parte commission, and publication duly passed. A second commission, in which both parties joined, was issued before, but not executed until after publication of the former depositions had passed: Held, that the depositions taken under the second commission were irregular. The proper course would have been to obtain an order to enlarge publication under the former, or to dis charge the order to pass that publication. The bill was filed by the widow of one Heap, against her two sisters, and it prayed an account against the defendants of the personal estate of the plaintiff's and defendants' father, who died intestate. The cause being at issue, the plaintiff obtained an order ex parte for a commission to examine her witnesses, and their depositions were accordingly taken. The defendants afterwards obtained an order for a commission, and the plaintiff joined in that commission, but did not examine any witnesses under it, but obtained an order to pass publication of the depositions taken by her own commissioners, and publication passed'

obtained was, to enlarge publication under the first commission, until the second was returnable. The order for passing publication of the depositions under the first commission, was quite irregular. The plaintiff by the order to pass publication of her own depositions, defeated the second commission in which she joined.

Mr. Wakefield in reply.-The plaintiff in the proceedings on her behalf, complied with the 17th of the new orders. The plaintiff's commission was quite regular. If the rule to pass publication under it was irregular, then the defendants ought to have applied to the Court. to discharge the rule, or to enlarge publication. They might have executed the second commission on the 19th of November, but they did not do so until the 23d of December. Publication under the first commission passed on the 25th of November, and notwithstanding, the defendants went on to examine witnesses under the second. They were not entitled to any indulgence; it was not the effect of a new former one, until the new commission was recommission to enlarge publication under a turned.

The Lord Chancellor.-The defendants were

irregular in their proceeding, and the plaintiff defendants knew of the order to pass publication was regular according to the 17th order. The under the first commission; instead of applying to discharge that order, or to enlarge publication, they did nothing. The order was imperative on the plaintiff. The proper course. would have been, when the plaintiff joined in the second commission, to apply for an order to enlarge publication under the first, and no doubt that order would have been granted. It appeared however to him, that there was a mistake of the practice, and therefore in order to save expense to the parties, he would, rather than suppress the depositions, give the plaintif leave to cross-examine the witnesses, giving the plaintiff the costs of this application. The motion might stand over to next day of motions, for an affidavit of the plaintiff's desire to cross-examine.

Heap v. Haworth.-At Westminster, May 22d, 1837.

Superior Courts: Vice Chancellor; King's Bench.
Vice Chancellor's Court.

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Bench said, that they would not infer usury from a contract to purchase an annuity of 201 for sixty years, for the consideration of 2001.

His Honor, the Vice Chancellor, stated more fully the case last cited, and observed upon the reasons given in the reported judgments of Lord Denman, and Mr. Justice Taunton, not with approbation. He thought the case of Fereday v. Wightwick applicable to this. At the end of forty years, the principal and legal ex-interest of 400l. would make 1,2004, but at forty guineas a year it would make 1,680, an excess of 480. beyond the legal produce. Looking to that excess, and judging from the evidence here, that a loan was the thing contemplated, he felt bound to consider the contract for the annuity to be a usurious transaction, in evasion of the law, and he therefore allowed the exceptions.

ANNUITY. PURCHASE OR LOAN.-USURY. Held, that an annuity of forty guineus for forty years certain, for the consideration of 4001., is a violation of the usury laws, it appearing from the evidence of the transaction, that a loan, and not a purchase, was contemplated, though the annuity deed purported to be a bonâ fide purchuse The question in this case was raised upon ceptions to the master's report. The suit was instituted for administration of the estate of William Chillingsworth, who died in 1820, and the usual order of reference to the master being made, the personal representatives of one Fisher, carried in a state of facts in support of their claim. From that statement, and the evidence laid before the master, it appeared that the said William Chillingsworth applied to said Fisher in 1812, for a loan of 400. upon mortgage of leasehold property, and that, after some negotiation, the latter declined to advance the money upon mortgage, but was willing to give the 4001. in purchase of an annuity of forty guineas for forty years, to which Chillingsworth agreed, and he executed the necessary deeds, and paid the forty guineas a year regularly up to the time of his death. The master reported in favour of the annuity as a legal and binding contract, and to that part of his report the exceptions were taken.

Chillingsworth v. Chillingsworth. At Westminster, May 3d, 1837.

King's Bench.

[Before the Four Judges.]

WARRANT OF ATTORNEY.-EXECUTION.

Where an execution upon a warrant of altorney is improperly taken out for the whole sum intended to be secured, instead of being limited to one instalment, the proper course is to set right the execution, not to set it aside altogether.

In this case a rule had been obtained for set

Mr. Knight and Mr. Girdlestone, in support of the exceptions, insisted that the contract was a usurious transaction, and that the principal and interest were long since paid. Itting aside an order of Lord Denman, for setting was not an annuity bona fide purchased, but the money was a loan at usurious interest: the capital was not in any way risked, being well secured for forty years, at the end of which the sums received would be 1600 guineas for a loan of 400. They cited Doe v. Gouch, a and Feredey v. Wightwick

aside an execution, and discharging a defendant out of custody, on the ground that execution had been irregularly issued. The defendant had given a warrant of attorney to secure the payment by instalments, of a sum of 541. 28.; and the warrant of attorney declared, that if there was default in the payment of any of the Mr. J. Campbell supported the master's instalments, judgment night be entered up, finding, and insisted that this contract was a and execution issue for "so much of the sum bona fide purchase of an annuity, and not a of 547. 28. as shall then be due and unpaid, toloan. There was nothing on the face of the gether with the costs of the judgment." The annuity deed to taint the transaction with affidavit on which judgment was entered up usury, and the evidence before the master stated that sun to be due and unpaid. Mr. did not represent the contract to be other R. V. Richards shewed cause against the rule. than what the deed itself expressed. The It was clear that this execution was wrongly grantor paid the annuity during his life, and issued. The petitioner ought only to have enso did his representatives for fourteen years tered up judgment for the instalment then due. afterwards. The purchase of an annuity for a Leveridge v. Fortya was not an authority ennumber of years certain, did not come withia tirely to govern the present case, for there the the construction of a loan payable by instal-words "said sum" for which the execution ments, nor was it within the laws against was to be taken out, clearly referred to the usury, although the produce of it, at the expi- whole principal sum, and not to any portion ration of the years, might exceed the prin- of it. Here the words clearly limited the cipal and legal interest." He referred to the right to take out execution to the instalment Turner v. Pyneb was much more old cases cited in Fereday v. Wightwick, and then due. There a cognovit was relied on the late case of Ferguson v. Sprung,d like the present case. in which the Judges of the Court of King's given to secure payment of a debt by instalinents, with a proviso that on default in paying any instalment, judgment and execution might b1 Russ. & Myl. 50; see also Holland v. issue for the whole. By an agreement of even

a 3 Barn. & Ald. 664.

Pelham, I Crompt. & Jer. 580.

c 1 Russ. & Myl. pp. 51 and 52.

d 1 Adol. & Ellis, 576.

a 1 Maule & Selw. 706.

bl Ad & El. 34.

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Superior Courts: King's Bench.

date with the cognovit, the defendant undertook, if any instalment was not paid, to produce the debtor, upon notice, at a time and place therein stipulated. The first instalment was unpaid, the notice was given and the defendant produced the debtor at the time and place, and the Court held that the agreement was satisfied upon this single production of the debtor, and that the defendant could not again be called upon to produce him. Each instalment was there treated as a separate debt, and ought to have been so treated here. It was clear, therefore, that the execution here was improperly issued, and the only course to be adopted was to set it aside.

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Assumpsit on a contract for the purchase of oak trees. The declaration stated that the buy, not more than 6,000 nor less than 5,000 plaintiff agreed to sell and the defendant to oak trees, to be taken up at the proper season

and it averred that the plaintiff did properly and to be delivered within a reasonable time, take up the trees, and did within a reasonable time deliver the same. The declaration did

videlicet, nor aver that they were more than one, or less than the other number mentioned in the contract. Plea, that the plaintiff did not properly take up the trees; that they were and were not delivered at a certain time, also not of a certain number stated in the plea; stated in the plea. Special demurrer, that the defendant by his plea made the exact number of the trees material, which he ought not to have done, and also that the plea was double, as it traversed not only the taking up of the them within a reasonable time. The case was trees in a proper manner, but the delivery of argued in Easter Term, by Mr. Archbold, in support of the demurrer, and by Mr. Wightman in support of the plea: when Goddales case, Symmons v. Knox, Williams v. Saunand Crespin v. Williamson, were cited, for the ders, Darston v. Tutham,a Arnfield v. Bute,*

not state the number of the trees under a

Mr. Watson in support of the rule.-It was now clear law that under a cognovit by which it was agreed that no judgment shall be signed, or execution issued, unless default was made in payment of a certain sum, with costs, by instalments, the plaintiff might sign judgment, and issue execution for the whole sum, if default was made in the payment of one instalment. Rose v. Tomblinson. The execution, therefore, was not improperly issued; but, at all events, if the defendant here should be thought by the Court to have been charged in execution for too much, the proper way was not to discharge him, but to have the indorsement on the writ of execution set right. _Williams v. Waring. In Wentworth v. Bullen Mr. Justice Parke, adopting that view of the matter, saide, "The Judge could not properly discharge from the execution altogether, because it was for too much." That rule had been long before adopted in Bentrell v. Oakely; and in Barber v. Barber, Lord Chief Justice Mansfield said, "If the plaintiff had levied more than the amount he had paid, the Court would set aside the execution as to the sur-Purpose of shewing that a sum of money, or a plus," but the Court there refused to set aside period of time, not stated under a videlicet, the execution altogether. The cases cited on defendant was bound to set forth with precimust be taken to be material, and that the the other side were inapplicable here, where sion what was the matter of the contract in the real question was, whether the execution,

if issued for too much, ought not to have been any case in which he did not deny the concorrected as to the amount, instead of the de-tract, but merely averred the non perforfendant being altogether discharged from it. mance of it. Lord Denman, C.J.-The execution ought himself into the difficulty by his mode of allegLord Denman said, the plaintiff has brought not to have been set aside altogether. The ing the contract; but the plea is rather a strange indorsement of the writ should have been cor-one, and we should like to consider it. On the

rected.

Per Cur.-Rule absolute.-Hartland v. Cue, T. T. 1837. K. B. F. J.

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first day of this term judgment was delivered.

Lord Denman, C. J.-This was an action of assumpsit for the breach of a contract to take certain oak trees. The plaintiff agreed to sell, and the defendant to buy, not more than 6000, nor less than 5000 oak trees, to be taken stated the contract to be for the sale of these up at the proper season. The declaration and averred that the plaintiff did properly trees, to be delivered within a reasonable time, take them up, without stating their number, under a videlicet, and without averring that they were not less than one number, and not more than another; and it alleged that the

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Superior Courts: King's Bench; Common Pleas.

plaintiff did within a reasonable time deliver the same. The defendant pleaded specially that the trees were not taken up properly modo et forma, and that they were not of a certain number, to wit., (stating specially the number) and were not delivered within a certain time afterwards, to wit. (stating specially the time). The plaintiff demurred specially to this plea. The principal ground of demurrer was, that the defendant by his plea made the number of the trees material, which he had no right to do, and that the plea was double, as it traversed not only the well and properly taking up of the trees, but the delivery of them within the time. We are of opinion that this demurrer is well founded, on the ground that the plea is double. We do not think it bad, on the other ground, because it is only by taking the number stated as material that the declaration can be supported. The well and properly taking up of the trees depends upon the time and manner in which it is done, and is not necessarily connected with the offer to deliver them within a limited time. The plea bound the plaintiff to prove two things-the mode of taking up the irees, and the delivery of them. Formerly, non-assumpsit would have put both these things in issue; but the object of the new rules was, that the defendant should state in his pleadings all the material facts on which he intended to rely for his defence; and he must state them in distinct pleas, and in a proper manner. He has not done so here, and judgment must therefore be for the plaintiff.

Smith v. Dickson. T. T. 1837. K. B. F. J.

BUSINESS OF THE COURT.

Lord Denman, at the close of the day on Tuesday 23d May, said, We mean to take motions and the peremptory paper to-morrow and the next day; then the special paper and the crown paper for the two following days. We shall then give the next seven days of the Term to the new trial paper; then one day to the special paper, and another to the crown paper; and the remaining four days of the Term to motions.

Common Pleas.

LIBEL-RE-CHANGE OF VENUE.-COSTS.

The defendant having changed the venue in an uction for a libel published in a news paper on a common affidavit, the plaintiff will be entitled to his costs of a rule for taking the venue back again, the defendant admitting that the rule should be absolute. Perry had obtained a rule for discharging a rule for changing the venue in this action.

Addison now shewed cause. It was an action for a libel published in a newspaper, and the venue had been originally laid in London. On the usual common affidavit however, it had been changed by the defendant to Middlesex,

This means seven working days, and, therefore, includes all next week, and the Monday of the following week, viz. 5th June inclusive.

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and the present application was to take it back to London. It was admitted that the rule must be absolute, but Addison urged that it should be without costs.

Perry contended that under the old practice the venue could not have been changed until the plaintiff had had an opportunity of offering any objection he might have, and that he was entitled to his costs. The venue had been changed under the new rule when no such opportunity was afforded him.

Purke, J.-The rule must be with costs. It was the defendant who changed the venne, and having done so wrongfully, he must pay the costs.

Rule absolute with costs. Easthope v. Westmucott, E. T. 1837. C. P.

MISNOMER OF Plaintiff, 3 & 4. W. 4, c.

42, s. 11.

Cases of misnomer of plaintiffs are not contemplated by the \\th section of the act of 3 & 4 W. 4, c. 42.

Thomas had obtained a rule for setting aside the declaration for irregularity, or for its amendment at the cost of the plaintiff, against which

W. H. Watson shewed cause. The irregu larity complained of was that the plaintiff was styled "Henry H. Lindsay" in the declaration, his second christian name not being given in full. An affidavit was produced now in answer to the rule, in which it was sworn that the plaintiff was resident in America, and that the action was brought by his attorney by virtue of a power sent over, in which the plaintiff was described precisely as he was in the declaration. It was submitted that as the defendant had not ventured to swear that the plaintiff had any christian name but "H.” the rule must be discharged, for it was perfectly probable that he might have been christened by that initial only. The statute (3 and 4 W. 4, c. 42, s. 11.) provided that there should be no plea in abatement in any personal action grounded on a misnomer, but the defendant should be at liberty to amend the declaration at the cost of the plaintiff on a judge's suinmons, upon an affidavit of the right name. Here there was no affidavit of the right name, nor had any judge's summons been taken out for amending the declaration, although there had for setting it aside. The defendant suffered no disadvantage by the alleged misnomer, and as he came to the Court upon a technical objection, he must come himself properly prepared. The affidavit in answer to the rule also alleged that the plaintiff's second name, if he had any, was not known here.

Thomas, in support of his rule, contended that the objection was strictly legal, and was founded on the act of parliament, which applied to the case of the plaintiff as well as of the defendant. It could not be any great hardship on the plaintiff for him to give his own name, for no one could know it better than himself. The defendant had already had the advantage of being discharged out of custody

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Superior Courts. Common Pleas; Exchequer.

upon a similar objection being made to the affidavit of debt.

Tindal, C. J., said that the rule must be discharged with costs, a week's time to plead being given to the defendent. The 12th section of the act of parliament referred to cases of defendants only, and the Court were of opinion that the 11th section must receive a

similar construction.

Rule discharged. Lindsay v. Wells, E. T. 1837. C. P.

JUDGMENT ON WARRANT OF ATTORNEY.-
INTEREST.

Where it is sought to have judgment on an old
warrant of attorney, which bears interest,
the rate of which is named, the Court will
order the warrant to be referred to the pro-
thonotory to compute the amount of in-
terest due.

The

Tindal, C. J., referred to the words of the act, which were, "All persons in execution upon any judgment for any debt or damages not exceeding the sum of 20%., exclusive of the costs, recovered by such judgment, and who have been in prison," &c., and said that this was decisive. The defendant must be discharged.

Rule granted.-Doe d. Williams v. Sinclair, E. T. 1837. C. P.

Exchequer.

JUDGMENT NUNC PRO TUNC.-DEATH.

A defendant having died in Hilary Term, the Court refused to allow judgment nune pro tune to be entered on a cognovit in Easter Term.

Dasent moved for a rule calling on the executors of the defendant to shew cause why

J. Cooke moved for leave to enter up judg-judgment should not be entered up upon a ment on an old warrant of attorney. amount of the warrant was 250/., but he moved for leave that the judgment should be also for

231. interest.

Park, J.-It should be referred to the pro

thonotory.

J. Cooke.-The rate of interest was stated in the warrant of attorney.

Park, J.-It must nevertheless be referred to the prothonotory.

Rule accordingly.—Page v. Judis, E. T. 1837. C. P.

EJECTMENT.-SMALL DEBTOR'S ACT.

A defendant having been in custody more than twelve months, is entitled to his discharge, having been taken in execution for 1s. damages recovered in ejectment, and more than 20l. costs, the latter not being

within the uct.

an

Mansel moved for the discharge of a de. fendant out of custody under the Small Debtor's Act (48 G. 3, c. 125). It was action of ejectment, and a verdict had been returned for the plaintiff, with 1s. damages. The defendant had been taken in execution for the damages and costs, the latter exceed ing 20., and had been in custody for more than twelve months. It was submitted that costs were not within the act, and that he was therefore entitled to his discharge. He cited Doe d. Threlfall v. Ward, 2 M. & W. 65, where it was held that damages in ejectment were within the operation of the statute.

Butt shewed cause; and cited Doe v. Reynolds, 10 B. & C. 481, where a person in exe. cution for costs in an action of ejectment exceeding 207., was held not to be entitled to his discharge.

Mansel.-The act referred to "debt or damages," and not to costs. There was besides a case in the King's Bench, where a decision similar to that in the Exchequer, had been given.

cognovit. The cognovit had been given by the defendant on the 8th February, 1833, with leave to enter up judgment on the 1st May next after that date. Judgment was not sent year, the defendant died. It was urged entered, and on the 15th January in the prethat before the new rules, applications to enter up judgment nunc pro tunc were common, and the Court had directed judgment to be entered as of the proceeding term, the defendant having died in vacation. Calvert v, Tomlin, 5 Bing. 1; Cowie v. Allaway, 8 T. R. 257.

Parke, B.-I know of no precedent for such an application since the new rules.

Dasent subsequently informed the Court that he had been given to understand that the Court of K. B. had granted a rule of this description in Harrison v. Executors of Sir George Naylor.

Kelly said that the rule alluded to had been obtained by him; but an arrangement was made, and there was no cause shewn. The

Court, however, seemed to be of opinion that the appearance of the representative would be a party coming within a reasonable time after entitled to judgment.

Lord Abinger, C. B.-Such an application as this is, made in Easter Term to enter up judgment, the defendant having died in the preceding Hilary Term, could not have been granted under the old practice.

had reference to cases when there was a delay Parke, B.-Entry of judgment nunc pro tunc of the Court, and it was not permitted that parties should be prejudiced thereby.

Rule refused. Mann & another v. Lord Audley. E. T. 1837. Excheq.

SETTING ASIDE AWARD.

Unless a rule for setting aside an award be drawn up on reading the award, the Court will discharge it.

Erle shewed cause against a rule obtained by Petersdorff for setting aside an award. A preliminary objection was taken that the rule

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