Page images
PDF
EPUB

58

Examination of Barristers.-Superior Courts : Lord Chancellor.

der the Inns of Court from giving periodical | before any witnesses were examined under the prizes for the best essays on legal subjects, and second coininission. the best histories of particular forms of pro. Mr. Wakefield moved that the depositions cedure? It is not the amount of the prizes that taken under defendants'commnission be suppreswould be any object; they might be small or sed for irregularity. Publication haviug passed, triling, but the opportunity for those to dis- and the plaintiff's evidence being in the hands play the research and learning, which now, of the defendants, it would be against reason alas ! “ bloom unseen” in many a briefless bar and practice to allow depositions taken under rister, and many a sleepless student, without such circumstances to be read in the cause. their having the opportunity of making them Mr. Wigrain (Mr. Kve was with hiin), reknown to the world.

ferred to a long correspondence between the "A hint to the wise,” they say, "is enough;" I solicitors of the parties on the 11th, 13th, and will not therefore dilate on it, but hope it may 16th of October last, from which it appeared not be unconsidered by the beuchers of the re-that the plaintiff was not apprised of the first spective Inns. The loner Temple has shewn the commission, or who the commissioners were, disposition to be active; they tried, not a very or where they sat, until after the cxainination long while ago, some law lectures; but they did of witnesses. The plaintiff afterwards, on the not do all that they might or ought to bave 23d of October, joined in the defendants' comdone, to render thein successful. Let them mission, which was issued on the 29th, and was by the effect of giving a few prizes for legal made returnable for the first day of Hilary essays on the same terms as they are inanaged Term, 1837. The effect of that coinmission, so at the Universities, and I doubt not they will obtained was, to eularye publication under the soon find the success of this plan. Let thein first commission, until the second was returnnot think of the expense of so doing-the able. The order for passing publication of prizes may be as trifling as they please. It is the depositions under the first commission, the opportunity of distinguishing oneself, and was quite irregular. The plaintiff by the order that publicly, that is alone wanted. P. B. to pass publication of her own depositions, deHure Court, Temple.

| feated the second commission in which she (We disagree with our correspondent in joined., thinking that the public would not De benefited! Mr. Wakefield in reply.—The plaintiff in the by a preliminary examination before the degree proceedings on her behalf, complied with the of barrister was conferred. Our argument has 17th of the new orders. The plaintiff's comalways been, that the public is injured by the mission was quite regular. If the rule to pass appointment of incompetent barristers to small publication under it was irregular, then the judicial situations, both at tome and in the defendants ouglit to have applied to the Court colonies: and this an examination would tend to discharge the rule, or to enlarge publication. to prevent.--Ed.]

They inight have executed the second compmission on the 19th of Noveinber, but they did not do so until the 230 of December. Publi.

cation under the first commission passed on SUPERIOR COURTS.

the 25th of November, and notwithstanding,

the defendants went on to exainine witnesses Lord Chancellor's Court.

under the second. They were not entitled 10 PRACTICE.-DEPOSITIONS.-PUBLICATION. any indulgence ; it was a

any indulgence; it was not the effect of a new Depositions were fuken under an ex parte

commission to enlarge publication under a

former one, until the new commissiou was recommission, and publication duly passed.

turned. A second comission, in which both parties

The Lord Chuncellor.–The defeudants were joined, uus issued before, but not rdecuted

irregular in their proceeding, and the plaintiff until after putlication of the former depo

was regular according to the 17th order. The

the deposi- defendants knew of the order to pass publication lions Inken under the second commission were irregular.

under the first commission; instead of applyThe proper course would have been to ublain in order to enlarge

ing to discharge that order, or to enlarge pubpublication under the former, or to dis.

lication, they did nothing. The order was im.

180 perative on the plaintitf. churge the order to pass that publication.

The proper course, to pass that publiculion. I would have been, when the plaintiff joined in The bill was filed by the widow of one the second coinmission, to apply for an order Heap, against her two sisters, and it prayed to enlarge publication under the first, and no an account against the defendants of the per-doubt that order would have been granted. It sunal estate of the plaintiff's and defendants' appeared however to hiin, that there was a misfather, who died intestate. The cause being at take of the practice, and therefore in order to issue, the plaintiff obtained an order ex parle save expense to the parties, he would, rather for a commission to examine her witnesses, than suppress the depositions, give the plaintit and their depositions were aecordingly taken. leave to cross.examine the witnesses, giving the The defendants afterwards obtained an order plaintiff the costs of this application. The for a commission, and the plaintiff joined in motion might stand over to next day of mothat commission, but did not exainine any tions, for an affidavit of the plaintiff's desire to witnesses under it, but obtained an order to cross-examine. pass publication of the depositions taken by Help v. Haworth.-At Westminster, May her own commissioners, and publication passed' 22d, 1837.

[ocr errors]

Superior Courts : Vice Chancellor ; King's Bench.

59 Vice Chancellor's Court. | Bench said, that they would not infer usury, ANNUITY.-PURCHASE OR LOAN.-USURY.

from a contract to purchase an annuity of 201.

for sixty years, for the consideration of 2001. Held, that an annuity of forty guineus fur His Honor, the Vice Chuncellor, stated more

forly yeurs certuin, for the consideration fully the case last cited, and observed upon of 4001., is a violution of the usury luus, it the reasons given in the reported judgments appearing from the evidence of the trans- of Lord Denman, and Mr. Justice Taunton, action, that a loan, und nal e purchase, was not with approbation. He thought the case of contemplated, though the annuity deed pur- | Feredav v. Wightwick applicable to this. At ported to be a bona fide purchuse

the end of forty years, the principal and legal The question in this case was raised upon ex-interest of 4001. would make 1,2001., but at ceptions to the master's report. The suit was in forty guineas a year it would make 1,6801, an stituted for adıninistration of the estate of Wil- excess of 4801. beyond the legal produce. liam Chillingsworth, who died in 1820, and the Looking to that excess, and judging from the usual order of reference to the master being evidence here, that a loan was the thing eon. made, the personal representatives ofone Fisher, templated, he felt bound to consider the concarried in a state of facts in support of their tract for the annuity to be a usurious transacclaim. From that statement, and the evidence tion, in evasion of the law, and he therefore allaid before the master, it appeared that the lowed the exceptions. said William Chillingsworth applied to said Chillingsvorih v. Chillingsworth. At Il'estFisher in 1812, for a loan of 4001. upon mort-/ minster, May 3d, 1837. gage of leasehold property, and that, after some negotiation, the latter declined to advance the money upon mortgage, but was willing

King's Bench. to give the 4001. in purchase of an annuity of forty guineas for forty years, to which

[Before the Four Judges.] . Chillingsworth agreed, and he executed the WARRANT OF ATTORNEY.—EXECUTION.. necessary deeds, and paid the forty guineas a

Where un execution upon u rarrunt of ulla, year regularly up to the time of his death.

corney is improperly ixken out for the whole The master reported in favour of the annuity

sum intended to be secured, instead of being as a legal and binding contract, and to that

limited to one instulment, the proper course part of his report the exceptions were taken.

is lo sel righe the exccution, not to set it Mr. Knight and Mr. Girdlestone, in support of the exceptions, insisted that the contract

aside altogether. was a usurious transaction, and that the prin- |

1 In this case a rule had been obtained for setcipal and interest were long since paid. It ting aside an order of Lord Denman, for setting was not an annuity bona fide purebased, but aside an execution, and discharging a defendant the money was a loan at usurious interest: the out of custody, on the ground that execution capital was not in any way risked, being well had been irregularly issued. The defendant secured for forty years, at the end of which had given a warrant of attorney to secure the the sums received would be 1600 guineas for payment by instalments, of a sum of 541. 28. ; a loan of 4004. They cited Dve v. Gouch, a and the warrant of attorney declared, that if and Feredey v. Wightuick.b

there was default in the payment of any of the Mr. J. Campbell supported the master's | instalments, judgment inight be entered up, finding, and insisted that this contract was a and execution issue for “so much of the suin bunú fide purchase of an annuity, and not a of 541, 28. as shall then be due and unpaid, 10loan. There was norhing on the face of the gether with the costs of the judgment.” The annuity deed to taint the transaction with affidavit on which judgment

affidavit on which judgment was entered up usury, and the evidence before the inaster/ stated that suin to be due and unpaid. Nr." 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 en80 did his representatives for fourteen years tered up judgment for the instalment then due. afterwards. The purchase of an annuity for a Leveridge v. Foriya was not an authority ennumber of years certain, did not come withiu | 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, wight 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 old cases cited in Fereday v. Wichtwick.c and then due. Turner v. Pyneb was inuch more relied on the late case of Ferguson v. Sprung.d like the present case. There a cognovit was in which the Judges of the Court of King's given to secure payment of a debt by instala

ments, with a proviso that on default in paying a 3 Barn, & Ald. 664.

any instalment, judgment and execution might 0 1 Russ. & Myl. 50; see also Holland v. issue for the whole. By an agreement of even Pelham, 1 Crompt. & Jer. 580. c 1 Russ. & Myl. pp. 51 and 52.

a 1 Maule & Selw. 706. d | Adol. & Ellis, 576.

b1 Ad & El. 34.

60

Superior Courts : King's Bench.

date with the cognovit, the defendant under-1 contract, the defendant pleuded that the took, if any instalment was not paid, to pro trees were not taken up properly, were not duce the debtor, upon notice, at a time and of a certain number, and were nut delivered place therein stipulated. The first instalment ucithin a certain time. Held, that the plea was unpaid, the notice was given and the de. vous bud for duplicity in traversing both the fendant produced the debtor at the time and taking up and the delivery, but iras not bad place, and the Court held that the agreement for specifically fixing the number of the was satisfied upon this single production of the Treps which were the subject of the con. debtor, and that the defendant could not again tract. be called upon to produce hiin. Each instal.

Assumpsit on a contract for the purchase of inent was there treated as a separate debt, and

oak trees. The declaration stated that the ought to have been so treated here. li was

plaintiff agreed to sell and the defendant to clear, therefore, that the execution here was

buy, not more than 6,000 por less than 5,000 improperly issued, and the only course to be

oak trees, to be taken up at the proper season adopted was to set it aside.

and to be delivered within a reasonable time, dír. Watson in support of the rule.-It was

and it averred that the plaintiff did properly nuw clear law that under a cognovit by which

take up the trees, and did within a reasotiable it was agreed that no judgment shall be signed, time deliver the same. The declaration did or execution issued, unless default was made

not state the number of the trees under a in payment of a certain sum, with costs, by

videlicet, nor aver that they were more than instalments, the plaintiff.might sign judgment,

one, or less than the other number mentioned and issue execution for the whole sum, if de

in the contract. Plea, that the plaintiff did fault was made in the payment of one instal.

not properly take up the trees; that they were ment. Ruse v. Tomblinsone. The execution,

ecution; not of a certain number stated in the plea ; therefore, was not improperly issued ; but, at

and were not delivered at a certain lime, also all events, if the defendant here should be

stated in the plea. Special demurrer, that the thought by the Court to have been charged in

defendant by his plea made the exact number execution for too inuch, the proper way was

of the trees material, which he ought not to not to discharge him, but to have the incorse

have done, and also that the plea was double, ment on the writ of execution set right. Wil.

as it traversed not only the taking up of the liams v. Waringd. In Wentworth" v. Bullen

trees in a proper mapner, but the delivery of Mr. Justice Parkr, adopting that view of the

thein within a reasonable tiine. The case was matter, said, “The Judge could not properly

argued in Easter Term, by Mr. Archbold, in discharge from the execution altogether, be. 1:

support of the demurrer, and by Mr. Wighla cause it was for too much.” That rule had

man in support of the plea: when Goddules been long before adopted in Beninell v. Onkelyf;

case,a Symmons v. Knox, b Williams v. Sann. and in Burber v. Bieber, Lord Chief Justice

ce ders, Darstun v. Turham,d Arnfield v. Bate, e Mansfield said, “ If the plaintiff had levied

and Crespin v. Williamson,f were cited, for the more than the amount he had paid, the Court

purpose of shewing that a sum of money, or a would set aside the execution as to the sur

period of tiine, not stated under a videlicet, plus,” but the Court there refused to set aside

must be taken to be material, and that the the execution altogether. The cases cited on

defendant was bound to set forth with precithe other side were inapplicable here, where

sion what was the matter of the contract in the real question was, whether the execution,

union, any case in which he did not deny the conif issued for too much, ought not to have been |

tract, but merely averred the non perforcorrected as to the amount, instead of the de

mance of it. fendant being alcogetber discharged from it.

Lord Denman said, the plaintiff has brought Lord Denman, C.J.-The execution ought him

bimself into the difficulty by his mode of alleg. 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.

first day of this term judgment was delivered. Per Cur.-Rule absolute.--Hartland v. Cue,

Lord Denman, C. J.-This was an action of T. T. 1837. K. B. F. J.

(issumpsit for the breach of a contract to take

certain oak trees. The plaintiff agreed to PLEADING.-DUPLICITY.

sell, and the defendant to buy, not more than

6000, nor less than 5000 vak trees, to be taken In assumpsit for the value of trees barguined

up at the proper season. The declaration and sold, where the contract wus that the

stated the contract to be for the sale of these trees should be taken up in a proper man.

trees, to be delivered within a reasonable time, ner and delivered within a certuin time,

and averred that the plaintiff did properly and the declaration averred in a general

take them up, without stating their number, manner performance by the plaintiff of the

under a videlicet, and without averring that

they were not less than one number, and not c3 Dow. Prac. Cas. 49.

more than another; and it alleged that the d 4 Dowl. P. C. 200. 2 Cr. M. & R. 354, and 1 Gale, 268. e 9 Barn. & Cres. 850.

a Dyer,'14 A. p. 70. b3 Term. Rep. 65. 12 Taunt. 174.

c Ib. 291. d Cited 3 Term Rep. 67. e 3 Maule & Sel. 173. 8 Taunt. 107.

Superior Courts : King's Bench; Common Pleas.

61 plaintiff did within a reasonable time deliver and the present application was to take it back the same. The defendant pleaded specially to London. It was admitted that the rule must that the trees were not taken up properly modo be absolute, but Addison urged that it should at forma, and that they were not of a certain be without costs. nuinber, to wit., (statiny specially the nuinber) | Perry contended that under the old practice and were not delivered within a certain time the venue could not have been changed until afterwards, to wit. (staring specially the time). the plaintiff had had an opportunity of offering The plaintiff deinurred specially to this plea. any objection he might have, and that he was enThe principal ground of demurrer was, that titled io his costs. The venue had been changed the defendant hy his plea inade the number under the new rule when no such opportunity of the trees material, which he had no right to was afforded him. do, and that the plea was double, as it traversed Purke, J.-'The rule must be with costs. It not only the well and properly taking up of the was the defendant who changed the venne, trees, but the delivery of them within the time. I and having done so wrongfully, he must pay We are of opinion that this deinurrer is well the costs. founded, on the ground that the plea is double. Rule absolute with costs. Easthope v. WestWe do not think it bad, on the other ground, mucuti, E. T. 1837. C. P. because it is only by taking the number stated as material that the declaration can be sup MISNOMER OF PLAINTIFF, 3 & 4. W. 4, c. ported. The well and properly taking up of

42, s. 11. the trees depends upon the tiine and manner in which it is done, and is not necessarily con

Cases of misnomer of plaintiffs are not connected with the offer to deliver them within a

templated by the Ilth section of the act of limited time. The plea bound the plaintiff to

38:4 W.4, c. 42. prove two things the mode of taking up the Thomas had obtained a rule for setting aside trees, and the delivery of them. Formerly, the declaration for irregularity, or for its non-assumpsit would have put both these things amendment at the cost of the plaintiff, against in issue ; but the object of tbe new rules was, which that the defendant should state in his pleadings W. H. Watson shewed cause. The irregu. all the material facis on which he intended to larity complained of was that the plaintiff was rely for his defence ; and he must state them in styled “Henry H. Lindsay” in the declary. distinct pleas, and in a proper manner. He tion, his second christian name not being has not done so here, and judginent must there given in full. An affidavit was produced now fore be for the plaintiff.

in answer to the rule, in which it was sworn Smith v. Dickson. T. T. 1837. K. B. F.J. that the plaintiff was resident in America, and

that the action was brought by his attorney by BUSINESS OF THE COURT.

virtue of a power sent over, in which the plain. Lord Denman, at the close of the day on Tues

tiff was described precisely as he was in the day 23d May, said, We mean to take motions

declaration. It was submitted that as the and the peremptory paper to-morrow and the

defendant had not ventured to swear that the next day; then the special paper and the crown

plaintiff had any christian name but “ H." paper for the two following days. We shall then

the rule must be disharged, for it was per. give the next seven dayga of the Termn to the

fectly probable that he might have been chrisDew trial paper; then one day to the specialiter

ajal tened by that initial only. The statute (3 and paper, and another to the crown paper; and

| 4W.4, c. 42, s. 11.) provided that there should che remaining four days of the Term to motione.

| be no plea in abateinent in any personal action

grounded on a inisnomer, but the defendant

should be at liberty to amend the declaration Common Pleas.

at the cost of the plaintiff on a judge's suinLIBEL.-RE-CHANGE OF VENUE.-Costs.

inons, upon an affidavit of the right name.

Here there was no affidavit of the right name, The defendant having changed the venue in nor had any judge's suinmons been taken out

an action for a librl published in a news for amending the declaration, although there puper on a common affidavit, the pluintif I had for setting it aside. The defendant suf. will be entitled to his costs of a rule for

| fered no disadvantage by the alleged misnomer, taking thr venue buck again, the defendant and as he came to the Court upon a technical

admilling that the rule should be ubsolule. I objection, he must come himself properly prePerry had obtained a rule for discharging a pared. The affidavit in answer to the rule also rule for changing the venue in this action. alleged that the plaintiff's second name, if he

Addison now shewed cause. It was an ac- had any, was not known here. tion for a libel published in a newspaper, and Thomas, in support of his rule, contended the venue bad been originally laid in London. that the objection was strictly legal, and was On the usual common affidavit however, it had founded on the act of parliament, which applied been changed by the defendant to Middlesex, to the case of the plaintiff as well as of the

| defendant. It could not be any great hard. * This means seven working days, and, ship on the plaintiff for him to give his own therefore, includes all next week, and the name, for no one could know it better than Monday of the following week, vir. 5th June himself. The defendant had already had the inclusive.

advantage of being discharged out of custody 62

Superior Courts. Common Pleas; Excheguer.

upon a similar objection being made to the Tindal, C. J., referred to the words of the afidavit of debt.

| act, which were, “ All persons in execution Tindal, C. J., said that the rule must be upon any judgment for any debt or damages discharged with costs, a week's time to plead not exceeding the sum of 201., exclusive of the being given to the defendent. The 12th sec- costs, recovered by such judgment, and who tion of the act of parliament referred to cases have been in prison,” &c., and said that this of defendanis only, and the Court were of was decisive. The defendant must be disopinion that the 11th section must receive a charged. similar construction.

Rule granteil. Doe d. Williams v. Sincluir, Rule discharged. Lindsay v. Wells, E. T. E. T. 1837. C. P. 1837. C. P.

Erchequer.
JUDGMENT ON WARRANT OF ATTORNEY.
INTEREST.

JUDGMENT NUNC PRO TUNC.-DEATH. Where it is sought to have julgment on an old

A defendant having died in Hilary Tern, wurrant of attorney, which bears interest,

the Court refused to alloro judgment nune the rate of which is named, the Court orill

pro tunc to be entered on a cognovit in order the warrunt to be referred to the pro

Easter Term. thonotory to compute the amount of in

Dasent moved for a rule calling on the exe. terest due.

ontors of the defendant to shew cause why J. Cooke moved for leave to enter up judg

I judgment should not be entered up upon a

cognorit.

The ment on an old warrant of attoruey.

The cognovit had been given by

the defendant on the 8th February, 1833, with amount of the warrant was 25C1., but he moved

leave to enter up judginent on the 1st May for leave that the judgment should be also for 231. interest.

next after that date. Judgment was not Park, J.-It should be referred to the pro

entered, and on the 15th January in the pre

sent year, the defendant died. It was urged thouotory. J. Cooke.—The rate of interest was stated in

that before the new rules, applications to enter the warrant of attorney.

up judgment nunc pro iunc were common,

and the Court had directed judgment to be Park, J.-It must nevertheless be referred to the prothonotory.

entered as of the proceeding term, the defenRule accordingly.Page v. Judis, E. T.

dant having died in vacation. Calvert v, Tom

Ilin, 5 Bing. l; Covie v. Allaway, 8 T. R. 1837. C. P.

257.

Parke, B. I know of no precedent for such

an application since the new rules. EJECTMENT.-SMALL DEBTOR'S ACT. Dasent subsequently informed the Court that A defendant having been in custody more he had been given to understand that the Court than twelve months, is entitled to his dis- of K. B. had granted a rule of this description charge, having been taken in execution for

ve been taken in execution for in Harrison v. Executors of Sir George Naylor. ls. damages recorered in ejectment, and Kelly said that the rule alluded to had been more than 201. costs, the latter not being |

obtained by him ; but an arrangement was within the act.

made, and there was no cause shewn. The

Court, however, seemed to be of opinion that Mansel moved for the discharge of a de.

Ja party corning within a reasonable time after fendant out of custody under the Small

the appearance of the representative would be Debtor's Act (48 G. 3, c. 125). It was an

entitled to judgment. action of ejectment, and a verdict had been

Lord Abinger, C. B.-Such an application returned for the plaintiff, with 1s. damages.

damages. as this is, made in Easter Term to enter up The defendant had been taken in execution

judgment, the defendant having died in the for the dainages and costs, the latter exceed

preceding Hilary Term, could not have been ing 201., and had been in custody for more i

I granted under the old practice. than twelve months. It was submitted that

Parke, B.-Entry of judgment nunc pro tunc costs were not within the act, and that he was

had reference to cases when there was a delay therefore entitled to his discharge. He cited

of the Court, and it was not perunitted that Doe d. Threlfall v. Ward, 2 M. & W. 65.

parties should be prejudiced thereby. where it was held that damages in ejectment

Rule refused. Munn & another v. Lord Aud. were within the operation of the statute. Bull shewed cause; and cited Doe v. Rey.

ley. E. T. 1837. Excheq. nolds, 10 B. & C. 481, where a person in exe. cution for costs in an action of ejectment ex

SETTING ASIDE AWARD. ceeding 201., was held not to be entitled to his discharge.

Unless a rule for setting aside an arrarit Mansel. --The act referred to "debt or be drawn up on rending the award, the damages,” and not to costs. There was be

Court will discharge it. sides a case in the King's Bench, where a Erle shewed cause against a rule obtained decision similar to that in the Exchequer, had | by Petersvors for setting aside an award. A been given.

1 preliminary objection was taken that the rule

[ocr errors]
« PreviousContinue »