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..... 389


CONTENTS London Gazettes......

Vice-CHANCELLOR Wood's Court-(Continued). Leading Article ....

Hanson v. Murray.-(Investment of trust funds) .... 917 Consolidation of Statute Law Commissioners' Report 390

In re Perry's Estate.-(Railway company-Doubtful NAMES OF THE CASES REPORTED.

title-Payment of income).......


Tupper v. Tupper.-(Charity-Revocation by codicil). 917 By T. F. MORSE, Barrister at Law.

Bond v. England.-(Exoneration) ................. Long v. Harris.-(Tenant for life and remainderman

Hobson v. Brown.-(Act of bankruptcy-Notice there-Mortgage debt, interest on, by whom payable

of-Costs of official assignee).................. 920 Account) ....................

.......... 913

In re Bunnett's Settlement.-(Investment of fund in re The Joint-stock Companies Winding-up Act,

court- Amendment of petition)................ 921 1848, and in re The Direct East and West Junc. In re Humphry's Estate.-(Appointment of new trustion Railway Company, ex parte Johnson.-(List

tee under Trustee Act) ...................... 921 of contributories --Sect. 66 of the Winding-up Act, 1848-Construction-Payment of balances)...... 913

Court of Queen's Bench. Cramer v. Moore.-(Marriage-Articles-Reversion

By G. J. P. Smith and W. B. BRETT, Barristers at Law. ary interests of wife-Covenant by husband to settle) 915 Bostock v. The North Staffordshire Railway Company. Vice-CHANCELLOR Wood's Court.

-(Canal company-Rights of ownership-User of By MATTAEW B. BEGBIE, Barrister at Law.

land-Prejudice to grantor-Land "for the use Dickens v. Unthank.-(Fine sur concessit-Husband

of the navigation, and for no other purpose what. and wife-Renewable leaseholds) .............. 916 soever"-Reservoir-Right to let out boats)...... 921


and if the amount thereof he paid to the plaintiff or

his attorney within days from the service hereof, LONDON, OCTOBER 6, 1855.

further proceedings will be stayed.”

It will be observed, that, first, nothing is here stated The number of undefended actions upon bills of as to the expenses of noting, which formerly could not exchange and promissory notes, although small in pro

be recovered; but now, by sect. 5 of this act, the holder portion to the immense amount of "paper" in circula

of a dishonoured bill of exchange, &c, has the same tion, has yet been found sufficiently large for the special remedy for the recovery of “the expenses incurred in notice of the Legislature. After the 24th of this month noting the same for non-acceptance or non-payment, or all actions upon these negotiable instruments, if com

otherwise, by reason of such dishonour," as he has menced within six months after they have become due, under the act for the recovery of the amount of the bill may, and therefore probably will, be brought in ac

or note. When such expenses are claimed, therefore, cordance with the provisions of the stat. 18 & 19 Vict.

they should be mentioned in the indorsement, stating c. 67, intituled “ An Act to facilitate the Remedies on

the amount, and the account on which it is claimed. Bills of Exchange and Promissory Notes by the Pre

Thus, after copying the bill or note, the indorsement vention of frivolous or fictitious Defences to Actions

may run thus-“And the plaintiff also claims thereon*.” The general effect of this statute will be to

for expenses incurred by him in noting the said bill of give the holder of a bill of exchange or promissory

exchange [or, promissory note] for non-payment for, note a judgment for the principal and interest, together

non-acceptance] thereof." Secondly, it will be seen with the expenses of noting, at the expiration of twelve

that a blank is left for the number of days within days from the time it becomes due, unless there is a which further proceedings may be stayed on payment legal or equitable ground for its non-payment. The

of the amount; but we presume that four days is the procedure is very simple, and analogous to that which

time that ought to be specified, that being the period was introduced by the Common-law Procedure Act,

indorsed on writs under the Common-law Procedure 1852, upon writs specially indorsed. A writ of sum- |

Act, 1852, (sect. 8), and that act, together with the mons is to be issued in the form given in the schedule

Common-law Procedure Act, 1854, and the rules thereto the act, warning the defendant, that unless within

under, being extended, as far as may be, to proceedings twelve days after service, inclusive of the day of service,

under this act. (Sect. 7). he obtains leave from one of the judges of the courts

A further notice is to be indorsed on the writ, to the at Westminster to appear, and does within that time

effect, that unless the defendant appears within the appear, the plaintiff may proceed to judgment and exe

twelve days, the plaintiff may sign final judgment for cution.

any sum not exceeding the amount claimed, and the The memorandum that the writ is to be served

sum of £— for costs. It also states that leave to within six calendar months from its date, or from its

appear may be obtained on application at the judge's renewal, and the indorsements as to the person issuing

chambers, on an affidavit “shewing that there is a dethe writ and the person serving it, are the same as on

fence to the action on the merits, or that it is reasonable ordinary writs of summons. Another indorsement to

that the defendant should be allowed to appear.” The be made is the following:

sum inserted for costs will be an amount fixed by the “ The plaintiff claims £ , principal and interest,

masters, and approved of by the judge; or if more [or, £- , balance of principal and interest], due to

than such sum be claimed, the costs must be taxed in him as the payee [or, indorsee) of a bill of exchange

the ordinary way. One writ may be issued against all or promissory note, of which the following is a copy,

or any of the parties to the bill or note, and is to be the

commencement of an action or actions against the par[here copy bill of exchange, 8c., and all indorsements];

ties therein named respectively, and all subsequent pro* See 1 Jur., N. S., " Statutes,” p. 17.

ceedings are to be as if separate writs had been issued.


Within the period of twelve days a judge may give the 7. The practice of making a new law by incorpodefendant leave to appear and defend on paying into rating by reference the provisions of existing acts on court the sum indorsed on the writ, or upon affidavits

it or upon affidavitaanother subject, so as to make it necessary to read them

mutatis mutandis, should be used with great caution, which disclose a legal or equitable defence, or such facts

as the result often is, that brevity is attained at the cost as would make it incumbent on the holder to prove of error and confusión. consideration, (e. g. fraud in the inception of the bill), 8. It is unsafe to refer to acts by the number of the or such other facts as the judge may deem sufficient, year and chapter only. Numbers are particularly liable and on such terms, as to security or otherwise, as to the

to be miscopied and misprinted; and with respect to judge may seem fit. He may also order the bill or

acts of the “ local and personal (public)” and the

“ private" series, there is a further risk that they will note to be forth with deposited with an officer of the

not be distinguished from acts of the “public general” court, and all proceedings to be stayed until the plain- series bearing the same number. The titles of acts tiff shall have given security for the costs. This will should always be referred to, not necessarily at length, tend to check indorsements to mere men of straw, so but enough to identify them; the year and chapter that they may sue as trustees for others upon doubtful

should also be mentioned for convenience of reference.

Several instances have already occurred of erroneous or tainted instruments.

reference to numbers; some will be found enumerated If, however, no appearance be entered, the plaintiff, in the First Report of the former Commission, pp. 24on filing an affidavit of personal service within the juris 27; and in the Third Report, p. 203. diction of the court, or an order for leave to proceed,

Parliamentary “short titles” are not convenient, (see the Common-law Procedure Act, 1852, sect. 17),

from not giving the number of the chapter, which and a copy of the writ and indorsements thereon, may

makes it necessary to turn to the index before they

| can be found in the statute-book. sign ndal judgment and issue execution forthwith. The 9. Such expressions as “ January last," “ January form of judgment is given in the schedule; the amount next,” &c. should be avoided. Four acts of Parliament of interest may be calculated up to the date of the at least have been made necessary within the present judgment. No proceeding in error lies on such judg

century to correct the consequences of using such refement, but it may be set aside under special circum.

rential expressions instead of absolute ones-43 Geo, 3,

c. 104; 11 Geo. 4 & 1 Will. 4, c. 71; 13 & 14 Vict. stances, and the defendant be let in to defend the

c, 19; 13 & 14 Vict. c. 27. action.

10. Every enactment which is superseded or renThe act is not to extend to Ireland or Scotland, but dered unnecessary by a new act ought to be expressly it is to apply to the Court of Common Pleas of Lan- and in terms repealed. Enactments that “all acts incaster and the Court of Pleas at Durham, and its

consistent with this act,” or “ so much of such and such provisions may be extended by Order in Council to any

an act as is inconsistent with this act," shall be re

pealed, or “any law or usage to the contrary notwithcourt of record in England and Wales.

standing,” should never be inserted. They have in It should be observed that the proceedings under this reality no effect, for the inconsistency itself is a repeal, act are not applicable to cases where the defendant is and they convey no available information to any one. out of the jurisdiction, (see the Common-law Procedure

Where accidental circumstances make it impossible to Act, 1852, sects. 18, 19); for independently of the 1st specify what former acts are repealed, it is of no use to

say anything about repeals at all. section, requiring the affidavit of personal service to be

With respect to the form of repeals, they may someof service within the jurisdiction, the form of writ is not l times be conveniently effected by separate acts, (as readapted to any other service, and the period for appear commended by Mr. Coode in the First Report of the ance is limited to twelve days.

late Board, p. 82), so that “the repealing act and the repealed act would sleep together;" and the plan has

been adopted in the case of the Merchant Shipping CONSOLIDATION OF THE STATUTE LAW.

Act of last session, (c. 120), and in some earlier in

stances; in other cases this course would not be pracEXTRACTS FROM THE APPENDIX TO THE RE

tically so convenient as to have the new enactments PORT OF THE COMMISSIONERS.

and the repeals in a single act. On this subject, there

fore, no general rule can be laid down, and the drafts(Continued from p. 384).

man must be guided by the nature of the subject. The Matters are often put into schedules which would tabular form is the clearest way of enumerating acts come more properly in the body of the act. A sche- for repeal. dule is properly something supplementary, and it is 11. Considerable confusion both of language and not a simple or natural style to relegate that which is thought is produced by the indiscriminate use of the principal subject of an act to a schedule, unless “shall” and “may," or other compulsory and perfrom its form or length it cannot conveniently be in missive terms, and also by the uncertain way in which troduced in the structure of a sentence. As an instance enactments are made with reference to time. Accuracy of the fault referred to, the 14 & 15 Vict. c. 80, may in this respect is important. be cited, where we find an enactment that “the pro 12. The modern plan of giving an act a long title, visional order of the General Board of Health re- and then inserting a clause that a certain combination ferred to in the schedule, applying the Public Health of words may be used as the title instead, appears to Act, 1848, to the borough of Great Yarmouth, in the be awkward and unnecessary. A brief title should county of Norfolk,” shall be confirmed ; and on turn- simply be prefixed to every act; and it is conceived ing to the schedule we find that it contains only these that any words which refer to an act in such a manner words-“ Provisional order of the General Board of as plainly to identify it are a sufficient reference, withHealth submitted for the confirmation of Parliament. out the assistance of any declaratory enactment. The Great Yarmouth.” The schedule in an enactment of uncouth form of most of these “short titles" is also objecthis kind ought to be incorporated in the clause which tionable. Such combinations of words, for instance, as refers to it, as indeed in this instance it is, so that it is “ The Metropolitan Improvements Repayment out of superfluous as well as misplaced.

| Consolidated Fund Act, 1853,” or “ The Great Southern



and Western Railway Ireland Extension Portarlington Month “shall be deemed and taken to mean calendar to Tullamore Act, 1817," are certainly very unlike pure month, unless words be added shewing lunar month to English. Some further observations on the subject of be intended.” (13 & 14 Vict, c. 21, s. 4). short titles will be fouud at p. 26 of the First Report Number:-See Gender. and at p. 229 of the Third Report of the former Com Oath, Swear, and Affidavit “shall include affirmamission.

tion, declaration, affirming and declaring, in the case of 13. The only case in which a preamble ought to be persons by law allowed to declare or affirm instead of prefixed to an act is where a statement is necessary in swearing." (13 & 14 Vict. c. 21, s. 4). order to make the meaning of the enactment intelligi [Note. The acts permitting affirmations and deble; but it has become very common to insert preambles

clarations in lieu of oaths are also themselves which contain, not a statement to render the enact

prospective. (3 & 4 Will. 4, cc. 49, 82; 5 & 6 ment intelligible, but a statement of the reasons which

Will. 4, c. 62). make it necessary or expedient to pass the bill. It is

Public Act.—“Every act shall be deemed and taken evident that these reasons, however desirable it may be to the a publicar

to be a public act, and shall be judicially taken notice to present them to the Legislature during its delibera- l of as such, unless the contrary be expressly provided tions, are only an incumbrance to the act, as such. and declared by scue

Hi and declared by such act.” (13 & 14 Vict. c. 21, Such preambles should therefore be avoided by the

s. 7). draftsman, together with such superfluous recitals as that “it is expedient to alter the law,” &c.

[Note. This refers to judicial recognition only, 14. Except in the few cases where acts are passed to

and does not affect the principles of construction meet a sudden emergency, no act ought to come in

of private acts. (Dawson v. Paver, 5 Hare; The force till a fair time has elapsed after its passing, to

Trustees of the Birkenhead Docks v. The Birkenallow the public to become acquainted with it. It

head Dock Company, Lords Justices, 1853.7 would be convenient if there were two or four fixed.

Repeals.—“Where any act repealing any former act days in the year, on one of which all acts should coine is itself repealed, such last repeal shall not revive the in force.

provisions before repealed, unless words be added re

viving such act or provisions.” (13 & 14 Vict. c. 21, List of Terms to which, when used in future Acts, a

s, 5). special Meaning is attached by Statute.

"Wherever any act is made repealing any former act,

| and substituting some provisions instead of the pro1.-IN ALL Acts.

visions repealed, such provisions so repealed shall reAffidavit.-See Oath.

main in force until the substituted provisions shall come Continuing Acts.—“Where any bill may have been | into operation by force of the last-made act.(13 & or shall be introduced into this present or any future

14 Vict. c. 21, s. 6). session of Parliament for the continuance of any act

Swear.-See Oath. which would expire in such sessions, and such act

Treasury, (Lords of).-" Where any warrant, apshall have expired before the bill for continuing the pointment, authority, approval, instrument, or act same shall have received the royal assent, such con- whatsoever is by any act of Parliament or otherwise tinuing act shall be deemed and taken to have effect required to be issued, made, signified, or done by or from the date of the expiration of the act intended to under the hands of the said commissioners, or by or be continued, as fully and effectually, to all intents and under the hands of any three or more of them, every purposes, as if such continuing act had actually passed such warrant, appointment, authority, approval, inbefore the expiration of such act, except it shall be strument, or act may be issued, made, signified, or done otherwise especially provided in such continuing act: by or under the hands of any two or more of the said provided nevertheless, that nothing herein contained commissioners, and when so issued, made, signified, or shall extend or be construed to extend to affect any

done as aforesaid, shall be binding, and have the same person or persons with any punishment, penalty, or

effect to all intents and purposes as if issued, made, forfeiture whatsoever, by reason of anything done or signified, or done by or under the hands of the said omitted to be done by any such person or persons, con- commissioners, or by or under the hands of any three trary to the provisions of the act so continued, between or more of them, as the case may require.” (12 & 13 the expiration of the same and the date at which the

ate at which the Vict. c. 89). act continuing the same may have received or shall [Note.-It may be doubted whether the terms of receive the royal assent.” (48 Geo. 3, c. 106).

this enactment are prospective, but they are conCounty “ shall be held to mean also county of a town

sidered and acted on as such by the Lords of the or of a city, unless such extended meaning is expressly Treasury.] excluded by words.” (13 & 14 Vict. c. 21, s. 4).

** None of the statutes above cited contain any England. -"In all cases where the kingdom of Eng-general declaration that the meanings thereby affixed land, or that part of Great Britain called England, may be modified by the context. hath been or shall be mentioned in any act of Parliament, the same has been and shall from henceforth be

II.-IN CRIMINAL Acts. deemed and taken to comprehend and include the do Gender, Number, Person.-By the 7 & 8 Geo. 4, minion of Wales and town of Berwick-upon-Tweed." c. 28, s. 14, it is enacted, that “wherever this or any (20 Geo. 2, c. 42, s. 3).

other statute relating to any offence, whether punishExpiration of Acts.See Continuing Acts. Repeals. | able upon indictment or summary conviction, in de

Gender and Number.-" Words importing the mas- scribing or referring to the offence, or the subject-matculine gender shall be deemed and taken to include ter on or with respect to which it shall be committed, females, and the singular to include the plural, and the or the offender or the party affected or intended to be plural the singular, unless the contrary as to gender or affected by the offence, bath used or shall use words number is expressly provided.(13 & 14 Vict. c. 21, importing the singular number or the masculine gender S. 4).

only, yet the statute shall be understood to include Land “shall include messuages, tenements, and here- several matters as well as one matter, and several perditaments, houses and buildings, of any tenure, unless sons as well as one person, and females as well as males, where there are words to exclude houses and buildings, and bodies corporate as well as individuals, unless it or to restrict the meaning to tenements of some parti. be otherwise specially provided, or there be something cular tenure.(13 & 14 Vict. c. 21, s. 4).

in the subject or context repugnant to such construc

. 6

tion; and wherever any forfeiture or penalty is payable thorised to superintend the landing and examination of to a party aggrieved, it shall be paid to a body corpo-goods on their importation." rate in every case where such body shall be the party Limits of East India Company's Charter “shall mean aggrieved."

the Cape of Good Hope, and all places and seas eastward III.-In Customs Acts.

thereof, to the Straits of Magellan.”

Master “shall mean the person having or taking the The 21st section of the 17 & 18 Vict. c. 122, is as charge or command of any ship.” follows:-—“Where any of the terms mentioned in the Quicen's Warehouse “ shall mean any place provided 357th section of the Customs Consolidation Act, 1853, | by the Crown for lodging goods therein for security of are used in this or any other act relating to the Cus- the Customs." toms, the terms so used shall have the same interpreta Seaman “shall include mate, mariner, sailor, or tion and meaning as are given to them in the said | landsman, being one of the crew of any ship.” section.” This enactment is apparently prospective.

Ship “shall mean ship or vessel of any description, The interpretations in the 357th section of the Cus- unless used to distinguish a ship from a sloop or some toms Consolidation Act, 1853, (16 & 17 Vict. c. 107), | other description of vessel.” are as follows:

Warehouse “shall mean any place in which goods Assistant Barrister “shall, with respect to matters or | entered to be warehoused may be lodged, kept, and proceedings in the county of Dublin, be construed as secured." meaning the chairman of Kilmainham; and with respect ** Neither of the Customs Acts above mentioned to matters or proceedings in the city of Dublin, be con- I contains any general declaration that the meanings strued as meaning the recorder of the city of Dublin.”

thereby affixed may be modified by the context. Attorney-General “shall include Solicitor-General, or other chief law officer of the Crown in any of her

IV.-IN FRIENDLY SOCIETIES Acts. Majesty's possessions abroad where there is no Attorney-| By the 17 & 18 Vict. c. 56, s. 1, it is enacted that General.'

friendly societies established under the 10 Geo. 4, c. 56, British Possession “shall include colony, plantation,

and the 4 & 5 Will. 4, c. 40, which grant policies of island, territory, or settlement belonging to her Ma- assurance exceeding 10001., “ shall cease to be friendly jesty.”

societies, and shall not be affected by the provisions of Channel Islands “shall mean the islands of Guern- any act passed in the present or any future session of sey, Jersey, Alderney, and Sark."

Parliament relating to friendly societies, unless therein Collector and Comptroller.—“Generally, wherever expressly named." any act, matter, or thing shall or may be required by

V.-In Poor Law Acts. this or any other act of Parliament to be done by or

“ Except where it is otherwise expressly provided, with the collector and comptroller of any port or place, I all provisions in any act now passed, or hereafter to be the same may be done by or with the collector or comp

comp-passed, relating to the officers of boards of guardians troller or other principal acting officer of Customs at

constituted under the provisions of the said first-recited such port or place, and be as valid and effectual as if

act, (the 4 & 5 Will. 4, c. 76), or to the workhouses done by or with any collector and comptroller.”

| under the management of such guardians, shall apply Commissioners of the Treasury “ shall mean the Lords

to all officers appointed by any district board, and to Commissioners of her Majesty's Treasury."

all workhouses under the management of any district Commissioners of Customs “shall mean the Commis- | board.” (7 & 8 Vict, c. 101, s. 74). sioners of her Majesty's Customs.” County “shall mean and include any city, county of

VI.-In Post-OFFICE Acts. a city, county of a town, borough, or other magisterial The interpretation clause of the 7 Will. 4 & 1 Vict. jurisdiction, or any place or district enumerated in c. 36, s. 47, is expressed to be “ for the interpretation sect. 274 of this act, unless there be something in the of the Post-office laws;" and by the same clause it is subject or context regugnant to such construction.” declared, that “the terms. Post-office acts' and Post

Note.--This seems to be a mistake for sect. 277. | office laws' shall mean all acts relating to the managewhich is in these terms:-“ Where any offencement of the post, or to the establishment of the Postagainst this or any other act relating to the Cus

office, or to postage duties from time to time in force." toms shall be committed in any city, borough,

In addition to this enactment, the 3 & 4 Vict. c. 96, liberty, division, franchise, or town corporate,

s. 71, contains the following enactment:-“The folany justice or justices having jurisdiction therein.I lowing terms and expressions, wherever used in this and any justice or justices of any county within or any other Post-office act, shall have the several inwhich the same is or are situated, shall have terpretations hereinafter respectively set forth;" and jurisdiction to hear and determine the same; and

after attaching particular interpretations to several all powers vested in any justice or justices of the

words, it proceeds as follows:-“ The several other peace by virtue of this act shall be and the terms and expressions used in this act shall be consame are hereby vested in, and may be exercised / strued according to the respective interpretations of the in the Isle of Man or the Channel Islands by any

| terms and expressions contained in the 7 Will. 4 & 1 governor, deemster, or other magistrate of the

| Vict. c. 36, so far as those interpretations are not resaid isle or islands; and for the purposes of this pugnant to the subject or inconsistent with the context act the jurisdiction of the magistrates of the of such terms and expressions.” borough of Gravesend, in the county of Kent. The following are all the interpretations contained in shall be deemed to extend on the river Thames

the two acts. It would appear that some of those in from Yantlet Creek to Broadness Point, in the

the former act are superseded by the latter :Northfleet Hope, and shall include every part.

| Between.-" Whenever the term 'between' is used of the said river between those limits respec- in reference to the transmission of letters, newspapers, tively.”]

parliamentary proceedings, or other things, between one Drawback “shall include bounty.”

place and another, it shall apply equally to the trans

mission from either place to the other.” Her Majesty “shall mean her Majesty, her heirs and

(7 Will. 4 &

1 Vict, c. 36, s. 47). successors." Justice “shall mean justice of the peace, and include the ti

British Letter “shall mean a letter transmitted within

m w ho deemster or any other magistrate.” Landing Waiter “shall include any officer duly au-1

(To be continued).




ct. 25 a

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1 TATES, Estates Tail after Possibility of Issue, Curtesy, Dower, To be granted, unless an appeal be duly entered.

Estates pur autre vie, and their incidents, especially with reference to

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