Imágenes de páginas
PDF
EPUB
[ocr errors]

CONTENTS. London Gazettes....

268 ViceCHANCELLOR Wood's COURT-(Continued). Leading Article

269

Sillibourne v. Newport.-(Trustee and cestui que trust Notes of the Week........ 272 -Discretion of trustee).

608 First Report of the County Courts Commission.. 272

COURTS OF QUEEN'S BENCH AND EXCHEQUER CHAMBER.
NAMES OF THE CASES REPORTED.

By W. B. Brett, Barrister at Law.
COURT OF EXCHEQUER.

The Charing-cross Bridge Company v. Mitchell.-
By W. M. Best, Barrister at Law.

(Land tax- - Bridge tolls-Rateability - RedempMatthews o. Livesley.- (Costs between party and party

tion of tax on land)...

608 -Negligence of attorney's clerk)

601
COURT OF APPEAL IN CHANCERY.

COURT OF Queen's Bench.
By F. FISHER, Barrister at Law.

By G. J.P. Smith and W. B. BRETT, Barristers at Law. The Earl of Mansfield v. Ogle.—(Mortgage— Usury

Cooke v. Wildes.-(Libel - Privileged communicaExceptions to report)

603 tion-Intrinsic evidence of malice-Question for VICE-CHANCELLOR STUART'S COURT.

jury-Clerk of the peace-Printers)..

610 By T. F. MORSE, Barrister at Law.

COURT OF COMMON Pleas. Parker d. Clark.- (Will - Construction Devise to

By W. PATERSON and W. Mills, Barristers at Law. children for life, with remainder to the issue of

Martin o. The Great Northern Railway Company.such children, and the heirs of the body of such issue-Rule in Shelley's case, non-application of

(Practice-New trial for misdirection on point Issue" a word of purchase-Effect of super.

not raised at trial- Negligence-Plaintiff's negli.

605 added words)

613

gence no defence).
Vice-CHANCELLOR Wood's Court.

HOUSE OF LORDS.
By MATTHEW B. BEGBIE, Barrister at Law.

By T. EDWARDS, Barrister at Law. Walker 0. Banks.-(Power, execution of General Jefferys v. Boosey.-(Copyright-Foreign author redevise of all real estate) 606 sident abroad- Assignment)

615

THE JURIST.

luble problem, and the decision in such cases must be

either questionable, or, if right on general grounds, LONDON, JULY 7, 1855.

wrong in the particular case. Occasionally, however,

judges will go wrong, and their errors, instead of being Tue “ uncertainty of the law” is not entirely charge corrected, will sometimes be adopted and amplified by able upon the lawyers, who, though not exempt from their successors. The subject of the interpretation of human infirmities, do their work, on the whole, as well wills is fertile in both kinds of uncertainty-that which as the members of any other liberal profession do theirs, been caused by irrational precedents

. is inherent in the subject-matter, and that which has

The rules of if not better. We think better-not, if we know ourselves, from any bias to our own class, but for the interpretation applicable, before the late Statute of sufficient reason, that every lawyer lives in a glass

Wills, to bequests of personal estate were, on the whole, house, exposed to the scrutiny of every other member rational, because they had grown up from remote antiof his class. He turns out no piece of work,

even

quity with the progress of the subject itself. But in chamber practice, that may not within a month

when the stats. 32 and 34 & 35 Hen. 8 had extended be subjected to the jealous criticism of the ablest and the testamentary power to real estate, the judges, being

called most practised minds in the Profession. From this

upon suddenly to establish rules for the interincessant friction of wits, and from the magnitude of pretation of devises, and not perceiving the full value the rewards which are held out to intellect and in of the fact, that the devising power was utterly antadustry, as well as from the nature of the subject-matter, indifferent success, to harmonise the two, and adapted

gonistic to the feudal system, endeavoured, with very it follows that the practice of the law is carried on with a greater habitual expenditure of intellectual power tion and operation of conveyances in such a manner

to wills some of the rules which governed the constructhan any other profession or art. The daily studies and mental labours of a clergyman, a physician, or an

as to save neither feudal principles nor common sense.

Thus they called the will itself a conveyance, and architect are, in ordinary cases, mere child's play in comparison with those of an advising lawyer in full having so called it, inferred that it could only operate practice. The result is not altogether incommensurate time of making it, and which he continued without

on the real property which the testator possessed at the with the means. The law is a very scientific, and, in proportion as it is scientific, a certain, art, and the interruption to possess up to the time of his death. uncertainty with which it is charged much more fre

They did not perceive, or perceiving did not care, that quently exists in the materials submitted to the law they thus sacrificed the substantial, and in regard to than in the law itself, or the method of its application. personal estate, well-recognised character and operation So long as men will enter into contracts and make wills One of the absurd consequences of the doctrine was,

of the testamentary instrument, to a fanciful analogy. without taking the trouble, if they have the capacity, that almost any suspension or alteration of the testator's to view the subject-matter in all its bearings, and to estate or interest in the property devised, for whatever provide for all contingencies, to conceive clearly,

and to express their conceptions completely, the construc- purpose, even though the purpose were the confirming of tion of a contract or a will in a court of justice, accord- the devise itself, amounted to a revocation of the will*. ing to the actual intention, if intention there was with

* See an elaborate article on this subject, 16 Jur., part 2, respect to the event, or the presumable intention if the pp. 191, 198, 214, 223. The decision in Plowden v. Hyde,

there commented on, has been since reversed by the Lords event was unprovided for, will frequently be an inso- I Justices. (Plowden v. Hyde, 16 Jur., part 1, p. 823).

7

It was principally with a view to this mischievous devise or bequest an aspect very different from that notion of the constructive revocation of devises that which it had under the old law, (abstractedly from the the 24th section of the late Wills Act (7 Will. 4 & technical doctrine which made every devise specific), 1 Vict. c. 26) was framed. But in enacting “ that and to be of force in itself to convert a devise or beevery will shall be construed, with reference to the real quest of one subject, answering the given description at estate and personal estate comprised in it, to speak one time, into a devise or bequest of another subject, and take effect as if it had been executed immediately more or less valuable, answering the same description before the death of the testator, unless a contrary effect at another time. Thus, for example, if I devise my shall appear by the will,” the Legislature has not cor- farm in the parish of A., having at the date of the will rected the judicature in the happiest manner. The a small farm of fifty acres in the parish of A., and I clause was in fact wholly superfluous, the business afterwards sell that farm and purchase another of 1000 having been effectually done by the 3rd section, which acres, and die without having either altered or re-exeextended the devising power to real estate acquired cuted my will, the larger farm will pass; though if I after the date of the will; (see Cole v. Scott, 1 Mac. were to die possessed of both farms, and if this (like the & G. 529*); and done again by the 23rd section, bequest of my white horse,' when I have two white which in express terms put an end to the doctrine of horses) were considered to be a case of ambiguitas Lord Lincoln's case and its satellites. The most un- latens, admitting of elucidation by extrinsic evidence, happy part of the 24th section is the word “speak,” but the only evidence adduced were the fact of my which, if it means anything, means that the will is having had the smaller farm and not the larger farm at to be interpreted as if, when it was made, the existing the execution of my will, either the devise must be state of things was the state of things at the time of void for uncertainty, or it must speak and take effect as the death. The word was probably aimed at the doc. if not actually executed immediately before my death, trine of the class of cases to which Abney v. Miller (2 thus speaking and taking effect without an intention Atk. 593) and Coppin v. Fernyhough (2 Bro. C. C. apparent upon the will itself. So, suppose, that baving 291) belong-that a bequest of leaseholds by a par- at the date of my will two farms, one in my own and ticular description was revoked by a renewal of the one in A.'s occupation, I devise my farm in A.'s lease. The difficulty was partly inherent in the sub- occupation, and that at my death both farms are in ject, (for when a testator bequeaths a leasehold interest A.'s occupation, is the devise void for uncertainty ? Or, depending on a term or lives about to drop, it is not a as an extrinsic fact creates the difficulty, may other necessary inference that he means to pass any renewed extrinsic facts be used to remove it, and would evidence interest which he may subsequently purchase), and respecting the state of the occupation at the making of partly occasioned by the decisions. To find a testator's the will be therefore admissible to shew the intention meaning, when he has not even attempted to express it, -admissible in the case of the additional farm, but inis beyond the power of the Legislature as much as of admissible in the case of the substitute farm? Cases may the judges, and the most that could safely be done was be put in which an unqualified application of the clause to deprive the old decisions of their authority, leaving would be productive of rather startling results ; the Courts to start afresh. The consequence of the in- where, having a white horse worth say 101., I bequeath troduction of the word “ speak” has been to raise a my white horse, but I afterwards sell the white horse, variety of questions which have not yet been settled, and purchase a black horse worth say 5001., and die, whatever may be the prospect of a rational mean- without having altered my will, possessed of the black ing being ultimately given to the clause. Thus, Mr. horse, and no other horse, the legatee will take the Jarman, writing before any question on this section black horse, assuming that the will is to speak as if had been decided, said that it would of course extend really made the instant before my death, and that a the operation of a gift of a leasehold or a specific contrary intention is not proveable dehors.” (1 Introd. Sum of stock to a renewed lease, and to substituted Conv. 385). These remarks shew the great infelicity, stock afterwards acquired by the testator, of similar if not absurdity, of the enactment. It is possible, how. amount; and he added, “Suppose that a testator, ever, by a rather strained construction, to deprive it of having a house in Grosvenor-square, bequeaths it by the mischievous operation suggested by Messrs. Jarman the description of his messuage in such square, and and Hayes, and by other writers. The will is to speak afterwards sells the property, and purchases another and take effect, with reference to the property comhouse in the same square, of which he is possessed at prised in it, as if it had been executed immediately his decease, the bequest will, it should seem, comprise before the death, unless a contrary intention appear the new acquisition, by force of the enactment which by the will, the intention of the framer of the clause makes the will speak from the death.” So Mr. Hayes probably having been to prevent any dealing with the says that the act “ does not merely enlarge the scope of property by the testator or other circumstances in the a general devise or bequest, by bringing down the testa- meantime from affecting the construction and operátor's volition expressed at a former period to the latest tion of the will. Now, in order to ascertain the meanmoment of his existence, but seems, according to the ing of an instrument, we must apply the words used natural construction, to be capable of giving to a specific in it to the state of things existing at the time when * But in Goodlad v. Burnett, (1 Kay & Jo. 343, 347), Sir testator's meaning by reference to a state of things

they are used. The absurd design of ascertaining the W. P. Wood, V. C., said that the clause must have some sense given to it as regards personal estate. The difficulty is, that which could not possibly be known to him is not to be the result of " giving sense" to the clause is to produce non imputed to the Legislature. We read each gift in the

will, then, by the light of the circumstances at the time

as

sense.

it was written. We ascertain what property was com- held not to pass a small piece of leasehold purchased at prised in it, and the intended disposition of that pro- the same time of B., and held with the freehold, the perty. Having done this, we apply the 24th section, freehold of which the testator after the date of his will and say, “ This gift of this property takes effect as if purchased from C. Sir J. L. Knight Bruce, V. C.,

asked, “Suppose a man to have a brown horse, and bethe testator had so given this property by a will exequeath it, and then to sell it, and buy another brown cuted the moment before his death.” So understood, horse, does the horse of which he was possessed at the the enactment, though superfluous, is perhaps harm- time of his death pass?" In Oakes v. Oakes (9 Hare, less. It leaves the law, as altered by the 3rd and 23rd 666) a testator bequeathed "all my Great Western sections, without further alteration, and without solving railway shares, and all other railway shares of which I

The any of the real difficulties which occur in applying it. shares which he had at the date of his will were sub

shall be possessed at the time of my decease.” When a testator gives “ all the property I possess in the sequently converted into consolidated stock, and the funds,” it may be said, as was held in Cockren v. Cockren, testator purchased a further amount of such stock. It (14 Sim. 248), that is the same as “all I now possess," was held that the stock out of which the shares inand excludes future acquisitions. The distinction be-tended to be bequeathed were converted passed, but tween this expression and “all my property in the funds” not the shares subsequently purchased; in other words,

that the will was to be construed, for the purpose of is not very striking, and it becomes more doubtful ascertaining the property comprised in it, as speaking when we bring into consideration other expressions from its date, and not from the death. "On the other equivocating between the generic and the special-as hand, in Goodlad v. Burnett, (1 Kay & Jo. 341), Sir “all my horses on my farm,” “all my black horses,” W. P. Wood, V.C., held that a gift of " my New 31. 108. “all my monies out in mortgage,” “ all the property I per Cent. Annuities” was not specific, but passed all have in the world,” “all the money I have at my tatrix at her death. His Honor admitted that before

the annuities of that kind which belonged to the tesbankers.” However, in Doe v. Walker, (12 M. & W. the act the gift would have been specific, as in Miller 591), where a testator, by his will, made before the v. Little, (“all my shares in the Grand Junction Canal late act, gave “all my messuages, farms, lands, tene- Navigation”), but said that the act “must have some ments, and hereditaments which I am seised of, situate sense given to it as regards personal estate. It is true, in Great Bowden,” and then purchased other lands, and that as regards personal estate, there was no doubt, bethen by a codicil made after the passing of the act, not from the death in most cases, but not in all; and it is

fore the passing of the Wills Act, that the will spoke in terms extending the gift, republished his will, it was precisely to the particular class of cases of which the held that the after-acquired estates passed; and the Court present is an instance that the Wills Act would seem relied on the codicil as if it were a repetition of every to have application. .... When I refer to a particular word of the will, as well as on the 24th section of the thing, such as a ring or a horse, and bequeath it as act. This decision is encountered by the decision and my ring or my horse, it seems to me there might be

considerable difficulty in saying that the contrary inthe reasoning of Lord Cranworth, V. C., in Stilwell v. tention, to which the act in its 24th section refers, does Mellersh, (20 L.J., Ch., 357), where a direction in a will, not appear on the face of the will; but when a bequest that a legatee should account for “all sums of money- is of that which is generic-of that which may be inwhich I have already given and advanced to him," creased or diminished, then I apprehend the Wills Act was held not to extend to advances made after the requires something more on the face of the will, for the date of the will, and before the republication of it by purpose of indicating such contrary intention, than the

mere circumstance that the subject of the bequest is a codicil. “In my opinion, when it is said a codicil re- designated by the pronoun "my.'”. We venture to publishing a will, or confirming a will, makes the will suggest that the decision would have been more satisspeak from the time of republication, that does not factory if it had been rested on a disavowal of the conmean that you are to read the will in any way diffe- struction in Miller v. Little, rather than on the Wills rent from the mode in which it would have been read that adopted in Oakes v. Oakes. If before the act the

Act, upon which it puts a construction contrary to if the testator had died the moment after he had executed it. What absurdities otherwise would arise! clude after-acquired property, it expresses that inten;

use of the word “my” expressed an intention to exSuppose I by my will say, 'I give 5001. to the present tion still; for we cannot admit what the Court said treasurer of Lincoln's-inn, and this day twelvemonth I in the same case, that against the disappointment of republish my will, does that alter the party who is to the intention in the particular case was to be set the take the legacy? That must be so if it is to be read as consideration that a person might leave “his will in & if I had written it over again; the present treasurer state like the present purposely, and because he believed would he a different person. So, I conceive, if I had that by the operation of the Wills Act the words he said, I devise all the estate of which I am now seised.'” had used would carry the whole property he might Doe v. Walker was not cited. In Douglas v. Douglas, have at his death of the kind bequeathed.”. This is a (Kay, 400), the words, “I hereby exonerate my sister violent stretching and misapplication of the maxim from all claims in respect of money laid out by me in “communis error facit jus." The cases of O'Toole v. improvements of the estate in Scotland, and which Brown, (3 El. & Bl. 576; 18 Jur., part 1, p: 1113); money has, according to the law of Scotland, been Wilson v. Eden, (16 Jur., part 1, p.1007; 5 Exch. 752); charged thereon, was held not to be extended by the and Gibson v. Gibson, (22 L. J., Ch., 346), involved the act to monies laid out after the date of the will. In application of the 24th section, but threw no light upon holding (in Cole v. Scott, 1 Mac. & G. 529) that the it. We may notice, in conclusion, that the singular word "now" confines the devise to the state of things oversight committed by Sir W. P. Wood, V. C., in the at the date of the will, Lord Cottenham, C., said, " It case of Bullock v. Bennett, (1 Jur., N. S., part 1, p. 443), appears to me just the same as if the testator had said, of applying the 24th section to determine the person, * all the freehold and leasehold estates of which I am event, or status contemplated by a testator, (a gift to on this 29th April, 1843, seised and entitled.' In M., a widow, until her marriage, followed by marriage Emuss v. Smith (2 De G. & S. 733) a devise of “all in the testator's lifetime), has been corrected on apmy freehold estate at D., which I purchased of B.,” was ' peal. (S.C., 1 Jur., N. S., part 1, p. 567).

NOTES OF THE WEEK.

mesne profits not exceeding 501. in amount should be

allowed to be included in a plaint for the recovery of Court of Queex's Bench, June 30.—After judge possession of the demised premises. ment had been delivered in Reg. y. The Fleetwood, Judge's Decision subject to Appeal, as in ordinary Preston, and West Riding Junction Railway Company; Cases. 1-We are, however, of opinion that the finality Lady Wenman v. Mackenzie ; Reg. v. The Corporation of the judge's decision in cases of the above description of Greenwich ; and Dorling, App., and The Epsom Board should be modified, and that an appeal ought to be of Health, Resps., Coleridge, J., stated that the only allowed where the annual rent and value of the precases which remained undecided were Layton v. Fenwick mises or the mortgage debt exceeds 201. and In re Barber; that the latter case had been argued This Mode of Appeal to continue, besides Cross Action, so late in Trinity Term, and was of such length, that the

as at present.]-It appears to us that this mode of Court was not then prepared to give judgment in it. appeal should be allowed in addition to that provided

A correspondent of The Times calls attention to the by sects: 126 and 127 of the 9 & 10 Vict. c. 95, as 13 & 14 Vict. c. 29, whereby the period provided for re- stated ante, p. 246. registering Irish judgments will expire on the 15th inst.

Replevin. Another correspondent asks for information as to the

The proceedings in replevin may, in our opinion, be usual custom of London bankers with reference to the materially improved by the introduction of certain presentation of cheques. He states, that on Friday, alterations, which we shall proceed to state. the 8th ult., he paid into a provincial bank a cheque on

Present Mode of proceeding defective.]-Taking a disStrahan, Paul, & Co., which was forwarded the same day, but not presented till the Monday, following, wrong, as it is a proceeding which is taken without the

tress, in order to secure a compensation for an alleged owing, as he is informed, to its passing the clearing intervention of legal process, and dispossesses the owner house. On whom, he asks, does the liability rest, for of his property, should be subjected to as easy and had the cheque been presented on the Saturday, it prompt' a revision as is practicable.. The action of would have been paid.

replevin, when actually brought to trial, may dispose

of the question raised between the parties as to the FIRST REPORT OF THE COUNTY COURTS right to distrain; but the steps now necessary in order to COMMISSION.

bring that question before a competent tribunal are slow, (Continued from p. 264).

inconvenient, and unsatisfactory. (See ante, pp. 180,

238). When the chattel has been seized, if the owner RECOMMENDATIONS-(Continued).

be desirous of contesting the lawfulness of the seizure,

he must give the replevin bond to the sheriff or his Ejectmcnt.

replevin clerk. To compel him to give this bond to This Jurisdiction to be extended.]—This jurisdiction the sheriff himself, who has only one office in the has been found beneficial to the public, and, subject to county, would in many cases operate as a denial of some modification, might be usefully extended. We justice. By law the sheriff is only bound to appoint think that the county court ought to have jurisdiction four replevin clerks in each county, and the persons only in those cases where the amount of the annual whose chattels are most likely to be distrained are not rent and annual value does not exceed 501. Unless such generally aware of the names or residences of those clerks, an alteration in the law be made, the jurisdiction would Consequently, in the majority of instances, the alleged continue to embrace a class of cases which the Legis- aggrieved

party submits to the distress, or travels with lature could not have intended to be decided in the his sureties to the county town in order to give the county court. Thus, in the case of land let on a build- usual bond. In the former case, the chattels may be ing lease, the reserved rent might not exceed 50l., but sold at considerable loss, or an oppressive arrangement the value of the houses erected upon it being of many be made for the surrender of them; in the latter, the thousand pounds' value, the annual value might far replevisor may be compelled to take a long and ex: exceed 501. We therefore recommend that where the pensive journey with his sureties. Again : although annual value of the premises sought to be recovered the replevisor be desirous of trying his cause in the exceeds the amount of 501., although the rent reserved superior court, he is obliged to give the bond to prodoes not exceed that amount, the case should not be secute his suit in the county court, and afterwards to within the jurisdiction of the county court. With this remove it by certiorari from the latter court, after alteration of the law, we think that this jurisdiction complying with the conditions imposed by the statute. might be usefully extended to cases where one half Again: if the replevisor be desirous of obtaining posyear's rent is in arrear, and the landlord or lessor has a session of his chattel, and prefers depositing money to right by law to re-enter for non-payment thereof, but giving security, he is not permitted so to do. The no sufficient distress has been left on the premises to same observation as to not being allowed to deposit countervail such rent; and also to the case of mort, money applies to cases of removal in conformity with gages where the money lent does not exceed 1001., and the provisions of the statute. Again: the decision of the the mortgagee is entitled to obtain possession. In the county court judge on questions of law in those cases latter case we think that the judge should have power where neither party removes, although the rent or dato postpone granting a warrant of possession for any mage exceeds the sum of 201., is not subject to appeal

. period which the judge might think fit, and should be

Amendments suggested.]—To remove these objections, invested with the same powers as might be exercised by the court in pursuance of the first Common-law should be the sole replevin clerk in each district

, and

we recommend, first, that the clerk of the county court Procedure Act, sect. 219, in actions of ejectment between perform all the duties of that officer. Secondly, that mortgagee and mortgagor.

the replevisor should be permitted, instead of giving Notice of Proceeding to be given by Tenant to imme- security, to pay into the hands of the clerk a sum phi diate Landlord.]—We think it also a desirable proportioned to the amount of the rent claimed or the vision,

that where a sub-tenant is served with a sum- damage alleged to have been done, such sum, in case of mons at the instance of the superior landlord, he should dispute, to be settled by the clerk, together with : be bound to give notice to his immediate landlord, who certain sum for costs. "Thirdly, that a similar subshould be entitled to come in and defend.

stitution of payment of money instead of giving secuClaim for Mesne Profits may be joined.]—We also rity under the statute should be permitted when the think that it would be convenient that a claim for plaint is removed. Fourthly, that the replevisor, if desirous of trying the cause in the superior court, be determined, and therefore it is generally desirable should, on making a declaration similar to the sta. that where a claim does not exceed 51. the cause should tatory one, be permitted to give security, or pay money be irremoveable. But it occasionally happens that quesinto the hands of the clerk; and that on such security I tions of great difficulty, both of law and fact, arise in being given or payment made, the chattel should be cases where the amount in dispute does not exceed 51. delivered to the replevisor, and the action of replevin Thus, questions of fact occur where the claims belong be at once commenced in the superior court. Fifthly, to a class, each of which individually is of less amount that if the replevisor be desirous of proceeding in the than 5l., but which, being questions of fact, cannot, as county court, the practice as to removal now prevailing the law now stands, he raised before a superior tribunal. under the statute should continue, but modified by the Thus, in actions by several workmen against a conright to deposit money instead of giving security. tractor, or by several passengers on a railway, or by Sixthly, that where the cause is not removed by either several customers of a common carrier, where in each party, the decision of the judge on questions of law case the demand does not exceed 5l., although the quesshould be subject to appeal, in the same manner as on tion is of considerable importance, and in effect brings ordinary claims in cases where the rent or damages into litigation an aggregate amount far beyond 5l., no exceed 201.

means exist at present of removing such actions into In other respects Practice to remain.)-Except so far the superior court. Again: difficult questions of law, as the suggested alterations extend, we think that the other than those which are excluded from the jurisdicpresent practice in replevin should continue unaltered. tion of the court, may arise, or such questions may be Interpleader.

so mixed with questions of fact, as not to be conveJurisdiction by Interpleader generally, vested in County niently separated, and yet the amount in dispute

may

not exceed 51. Court.]— The county court has at present jurisdiction in cases of interpleader, arising out of claims made on

Security for, or Deposit of, Amount of Claim and Costs.] chattels taken in execution, but has no jurisdiction in ther in tort or contract, does not exceed 51., it shall be

-We therefore recommend that where a claim, wheother cases, where interpleader is allowed in the superior courts. We are of opinion that such a jurisdiction competent for the defendant to remove the plaint into should be conferred on the county court, and that one of the superior courts, by leave of a judge of those wherever interpleader would be permitted in the su- courts, but only on giving security for the claim and perior courts of law, the suitors in the county court costs in the superior court, not exceeding 1001., or on should be allowed a similar privilege.

depositing that amount, and on such other terms as the Decision of County Court Judge subject to Appeal, eren judge may think proper to impose. in Case of Goods taken in Exccution.]-We think that in

In larger Claims.]-As before observed, it is compethe cases last mentioned, and in those where claims are

tent for a defendant to remove a plaint for a sum made on goods taken in execution, the decision of the exceeding 51. and not exceeding 501. from the county county court judge ought to be subject to appeal, in court, by permission of a judge of the superior court, the same manner and on the same grounds as in ordi- on such terms as he shall think fit. Dary claims exceeding 201.

Security or Deposit required.)-We are of opinion Where second Action in Superior Court, Jurisdiction that in such cases the law should remain unaltered, of County Court not to be ousted.]—Where, in cases of except that the judge should further be empowered to interpleader, the second action is brought or threatened make the costs of the proceedings in the county court, in the superior tribunal, we think that the right to in- which under the present law are lost to the party, terplead ought still to be reserved to the defendant in costs in the cause. the county court. In the event of an issue being di- Proper Checks on vcratious Removals.]-While, howrected by the judge of the county court, he might select ever, we recommend greater facilities than now by law that tribunal to dispose of it which appeared to him exist for removing causes from the county court, we most convenient for the purpose. Should a proper case are anxious that such facility should not be used for be shewn for altering the tribunal before which the the purpose of vexation or oppression. case was so directed to be tried, a judge of the superior Applications for Certiorari may at present be repeated.] court might be enabled to interfere.

-By law, if one of the superior courts, or a judge Acknowledgments by Married Women.

thereof, refuse a writ of certiorari, it is competent for We think also that it would be desirable to enable the other two courts, and in the event of a second refusal,

the applicant to renew his application in either of the judges of the county courts to take the acknowledg, he may apply to the third court. This state of the law ments of married women, in pursuance of the 3 & 4 Will. 4, c. 74.

appears to us inconvenient.

One Application only should be made.]-We reconiII._WITH REFERENCE TO ADDITIONAL SECURITIES FOR mend, therefore, that where an application is made for

THE DUE EXERCISE OF THE JURISDICTION. a writ of certiorari to one court or to one judge, for the We will consider, first, proceedings for the removal purpose of removing a plaint from the county court, of causes; secondly, prohibitions; thirdly, appeals. and the application is contested, the refusal by that Certiorari.

court or judge, subject in the latter case to the usual

appeal to the court, should be binding in the matter, First, as to the writ of certiorari. The county court and that no further application should be permitted to being a court of record, the mode of removing its pro- any other of the superior courts on the same grounds. ceedings is by certiorari. By the provisions of sect. 90 of the 9 & 10 Vict. c. 95, no case can be removed from several cases also parties have, by their mode of

When obtained, 'Writ may be used. vexatiously.]-In

prothe county court where the claim does not exceed 5l, ceeding when the writ of certiorari has been obtained, and then only by leave of a judge of the superior court, rendered it a medium of harassing their opponents. on such terms as lie thinks fit, if he be of opinion that Thus, a defendant has waited until a plaintiff has init is a proper case to be tried in the superior court. By, curred all the expenses of preparing for trial, and when sect. 16 of the 13 & 14 Vict. c. 61, removal by writ of the cause was called on, has produced a writ of cererror is prohibited.

tiorari to remove the proceedings. The plaintiff under May be granted in Claims not exceeding 51., on special such circumstances has no remedy for his costs, as by Grounds.] --- As a general rule, the amount of the claim the operation of the writ the parties have ceased to be is a convenient test of the importance of the question to suitors of the court.

« AnteriorContinuar »