at 10. Thomas Coggin, Sheffield, horn presser. At the County Court of Northumberland, at MORPETH, James Smith, Belford, merchant. At the County Court of Kent, at MAIDSTONE, Sept. 4 at 12. INSOLVENT DEBTORS' DIVidends. John Philip Knight, Compton-st., Brunswick-square, egg merchant, James's, York-st., Southwark: 18. in the pound. Enoch Heywood, Waterhead-mill, near Oldham, Manchester, warehouseman, Radcliffe's, Oldham: 2s. 3d. in the pound. In one thick volume, 8vo., price 11. 11s. 6d. boards, 10, County Court of Yorkshire, at Kingston-upon-Hull.- business.-Wm. Taylor, Preston, plasterer.-Wm. Wilcock, John Havercroft, Kingston-upon-Hull, sawyer, Sept. 22 at Bury, out of business.-Jeremiah Hall, Ardwick, Manches10, County Court of Yorkshire, at Kingston-upon-Hull.-E. ter, butcher.-Robt. Corlett, Chorlton-upon-Medlock, joiner. Haller, Kingston-upon-Hull, currier, Sept. 22 at 10, County John Davenport, Manchester, beerseller.-James Beard, Court of Yorkshire, at Kingston-upon-Hull.-George Eyre, Liverpool, cabinet maker. Kingston-upon-Hull, master of a river sloop, Sept. 22 at 10, County Court of Yorkshire, at Kingston-upon-Hull.-John At the County Court of Yorkshire, at KINGSTON-UPONWalker, Kingston-upon-Hull, basket maker, Sept. 22 at 10, HULL, Sept. 22 at 10. County Court of Yorkshire, at Kingston-upon-Hull.-Henry Uppleby Sutton, Kingston-upon-Hull, merchant's clerk. Critchett, Stone, Staffordshire, currier, Aug. 24 at 11, County At the County Court of Yorkshire, at SHEFFIELD, Sept. 5 Court of Staffordshire, at Stone.-Wm. King, Dover, Kent, labourer, Aug. 25 at 11, County Court of Kent, at Dover.John Creffield, Slough, Buckinghamshire, coachmaker, Aug. 20 at 10, County Court of Berkshire, at Windsor.-John Vickers, Sturton-le-Steeple, Nottinghamshire, blacksmith, Sept. 5 at 11, County Court of Nottinghamshire, at East Retford.-James Clark, Cirencester, Gloucestershire, blacksmith, Sept. 6 at 10, County Court of Gloucestershire, at Cirencester.-Wm. Townsend the younger, Cirencester, Gloucestershire, butcher, Sept. 6 at 10, County Court of Gloucestershire, at Cirencester.-H. Noble, Kingston-upon-Hull, draper's assistant, Sept. 22 at 10, County Court of Yorkshire, at Kingston-upon-Hull.-T. H. Etherington, Stableford, Staffordshire, builder, Aug. 24 at 11, County Court of Staffordshire, at Stone.-J. Stanford, Birmingham, licensed victualler, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-J. Lavill, Birmingham, cordwainer, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-John Yates the younger, Handsworth, Staffordshire, brickmaker, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-Jas. Hooper, Mose ley, Worcestershire, plumber, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-Wm. Osborne, Aston, Warwickshire, commission-agent, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-John Thomas, Brecknock, butcher, Aug. 29 at 2, County Court of Brecknockshire, at Brecknock.-John Atkin, Newark-upon-Trent, Nottinghamshire, out of business, Sept. 8 at 12, County Court of Nottinghamshire, at Newark.-Chas. Bennion, Birmingham, collector of debts, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-Joseph Hellier, Birmingham, retail brewer, Sept. 17 at 2, County Court of Warwickshire, at Birmingham. -Jas. Osborn, Birmingham, wood turner, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-Thomas Jackson, Birmingham, die sinker, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-E. Griffith, Birmingham, jeweller, Sept. 17 at 2, County Court of Warwickshire, at Birmingham.-Joseph Gibbs, Aston, Warwickshire, huckster, Sept. 17 at 2, County Court of Warwickshire, at Birmingham. -Henry Cook, Bath, blacksmith, Aug. 25 at 12, County Court of Somersetshire, at Bath.-John Stevens, Grassthorpe, Nottinghamshire, tailor, Sept. 8 at 12, County Court of Nottinghamshire, at Newark.-George Robinson, Appleton-gate, Newark-upon-Trent, Nottinghamshire, miller, Sept. 8 at 12, County Court of Nottinghamshire, at Newark.-Wm. Perry Mills, Young's-green, near Cheadle, Staffordshire, assistant to a farmer, Aug. 28 at 11, County Court of Staffordshire, at Cheadle. County Court of Lancashire, at Lancaster. Assignees have The following Prisoners are ordered to be brought up before At the County Court of Lancashire, at LANCASTER, Aug. 31 at 11. Daniel Wood Redfern, Manchester, labourer.-Richard Morris, Manchester, provision dealer.-John Atkin, Stanley, near Liverpool, licensed victualler.-Thos. Gibbs, Liverpool, master mariner.-Elias Flitcroft, Blackburn, joiner.--James Wood, Manchester, out of business.-Wm. Sparks, Manchester, dealer in ale.-John Hindle, Accrington, retail dealer in ale.-George Barlow Scholes, Moss-side, Hulme, Manchester, out of business.-John Dearden, Pinfold, Rochdale, in no A PRACTICAL TREATISE of the LAW concerning Of whom may be had A PRACTICAL TREATISE on the LAW of MARRIAGE and containing also the Mode of Proceeding on Divorces in the Ecclesiastical DIVORCE, and REGISTRATION, as altered by the recent Statutes; Courts and in Parliament; the Right to the Custody of Children; Voluntary Separation between Husband and Wife; the Husband's Liabilit Scotland respecting Divorce and Legitimacy. With an Appendix of to Wife's Debts; and the Conflict between the Laws of England and Statutes. By LEONARD SHELFORD, Esq., of the Middle Temple, Barrister at Law, price 17. 108. in boards. SHELFORD ON TITHES.-THIRD EDITION. 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Printed by HENRY HANSARD, PRINTER, residing at No. 47, Lincoln's Inn Fields, in the Parish of St. Giles-in-the-Fields, in the County of Middlesex, at his Printing Office, situate in Parker Street, in the Parish of St. Giles-in-the-Fields, in the County aforesaid; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. 41, Great Coram Street, in the Parish of St. George, Bloomsbury, in the County of Middlesex. Saturday, August 18, 1849. 1 No. 659-VOL. XIII. AUGUST 25, 1849. PRICE 18. ** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:TENISON EDWARDS, Esq. of the House of Lords THE case of Whiston v. The Dean and Chapter of Rochester (13 Jur., part 1, p. 694) is one of great importance, involving the consideration of that peculiar species of charity, in which there is, for some purposes, a trust, subject to the jurisdiction of the Court of Chancery, and for other purposes a duty merely, not being a trust, excluding the jurisdiction of equity, and subject specially to the jurisdiction of a visitor. We apprehend there cannot be much question, that, in the case before the Court, the plaintiff mistook his remedy for the particular grievance, and that the corporation were not trustees for the plaintiff in his personal and individual character; that is, that he had not a beneficial estate in his office of schoolmaster. But we conceive that the Court did not mean to go further than this, when it said that there was no trust. It did not mean to say that the corporation was not a trustee for the purpose of maintaining a school, and scholars, and a schoolmaster; or that, in the execution of such trust, it would not be bound by its statutes; or that the Court of Chancery would not have jurisdiction to construe and to enforce those statutes, as regards the general execution of the trust. It is not quite apparent, from the language of the judgment, what was the opinion of the Court on this general question; and probably it was not intended by the Court that any precise expression of opinion should be collected upon it, as that was not the question before the Court. The only question actually before the Court was, whether it ought to exercise jurisdiction to restrain the corporation from dismissing the existing schoolmaster for alleged misconduct. Now, it was clear, that whether the schoolmaster had misconducted VOL. XIII. G G (G. J. P.SMITH, Esq. of the Inner Court of Queen's Bench W. B. BRETT, Esq. of Lincoln's Temple; and Inn, Barristers at Law. H. PELLY HINDE, Esq. of the Appeals under Registra-J. R. BULWER, Esq. of the Inner Ecclesiastical and Admi- f J. P. DEANE, D.C.L. of Doctors' ........ Cases in Bankruptcy.... {W. W. COOPER, Esq. of the Inner Crown Cases Reserved.. Temple, Barrister at Law. ROBERT R. PEARCE, Esq. of. Gray's Inn, Barrister at Law. himself, or not, was a question quite independent of the question whether the funds of the corporation were trust-funds or not; and, if they were, whether they were properly distributed or not. It was a question of pure internal discipline, and for the regulation of such questions the statutes distinctly pointed out the bishop as the person to act as visitor. Unless, therefore, the plaintiff could claim individually an estate in his office, there was clearly no trust for him personally, and the jurisdiction of the visitor over him, in respect of his duty to conduct the school, and himself, with propriety, was not ousted. The general question, whether the corporation in this case held the property given to it by the founder in trust for the objects named in the statutes—that is, whether, as distinguished from the case of The Attorney-General v. Magdalen College, (10 Beav. 402), there was a trust to maintain a school and schoolmaster, &c., on which the jurisdiction of equity attached; or whether, consistently with that case, there was merely a duty in the corporation, in respect to which the visitor alone had authority to interfere-it was not, as we again submit, necessary to decide in Whiston v. The Dean and Chapter of Rochester; and whatever fell from the Court on that subject must, therefore, (if we are correct), be taken to be extra-judicial. Now, in The Attorney-General v. Magdalen College, the ground on which the Court proceeded expressly was, that the school was no specific part of the foundation. The instrument of foundation did not name a school at all; it declared that the founder founded a college of learning, of the sciences of divinity and philosophy, &c., according to statutes to be framed. Certain statutes were made, with power reserved to make further tutes. It did not appear when the school attached to the college was first thought of: it did appear, that, twenty-two years after the foundation, grammar scholars were taught gratis, at the charges of the founder, and in the same year a school-house was built, and subsequent entries shewed payments to a schoolmaster and usher. Finally, the statutes were settled twenty-five years after the foundation, and directed that there should be a master and usher, who should teach scholars who might come to the school-house, and salaries were directed to be paid to the master and usher. Now, in this state of things, the Master of the Rolls said, "The school is not a separate foundation. The license, which the founder obtained to found his college, contained no specific reference to a school, but gave authority to make such statutes and ordinances as were proper for the regulation of the college; and the statutes made to regulate the college, in pursuance of the license, directed that there should be a schoolmaster and usher, to be hired and removed by the president; in other words, the president had imposed on him the duty of engaging and removing a schoolmaster and usher. Certain stipends are directed to be paid to the master and usher, out of the common goods of the college, and they are to have chambers and weekly commons equal to those of the fellows of the college; but there is no other endowment of the school. A building was erected for the school, but no property is otherwise specially set apart or appropriated to the use of the school, or for its maintenance and support; and, subject to the specific payments for specific purposes, including fixed stipends to the master and usher, the revenues of the college belong to the college for its own use, subject, indeed, to the performance of all duties incumbent on the college to perform, but not subject to any trust to be executed in this court. "The college has, no doubt, a very important duty to perform with reference to the school, and the performance of that duty may be enforced by proper authority; but, unless it be a duty founded on a trust which this Court can execute, the performance of the duty is not to be enforced here. And on the best consideration which I have been able to give to the subject, I am of opinion that this Court has no jurisdiction to give the relief which is here asked. Though there is sufficient proof of the duty or obligation, there is not, in my opinion, evidence of a trust, as the word 'trust' is understood in this court." and sustentation of a master, and of other officers, instruments for the general carrying out of the trust: so that the case is, we submit, precisely that to which, in The Attorney-General v. Magdalen College, the Court, by implication, refers as one in which there would be a trust. For the school, in Whiston's case, was, or at least the scholars were, a specific object of the original foundation, and there is, in regard to them, not merely a direction for education, but a specific appropriation of property for their sustentation. The scholars are, therefore, clearly beneficial objects of the endowment. This we take to be the true distinction between the Magdalen College case and Whiston's case. In the former there was no property in which the scholars had a beneficial claim by the statutes. A duty was imposed on the corporation to appoint officers to teach, and poor boys might come and be taught; but the grammar scholars, as such, had no part in the corporation funds. Whereas in Whiston's case a specific object of the foundation was the grammar-school; and the twenty scholars, and, as incident to the existence of the school, the master, had a specific beneficial interest in the corporation funds: not, as we have already observed, in the sense of the Rev. Mr. Whiston, or any particular scholar, having an estate in his office or in his scholarship, but in the sense that the legal owners of the corporation property are bound by a trust to apply certain portions of that property to the maintenance of scholars and a master. If this be once made out, then, according to all the cases, the Court of Chancery has jurisdiction to decide on the construction of the statutes, in reference to the question, which is the real and important one, whether the effect of the statutes is to direct a division of the corporation funds in the relative proportions pointed out by the specific sums directed to be paid to the different objects named in the statutes; or whether the intention of the statutes is to confine certain of those objects to the specific allowances named, leaving the increase for the others; or whether, lastly—and this is a quite possible construction-the intention is to confine all the objects named, to the specific allowances named, and to allow the surplus to revert to the founder, which would in effect be, in the case under consideration, to the Crown. PROCEDURE AT SESSIONS. Now, contrast this with the case of Whiston v. The NEW LAW FOR THE AMENDMENT OF THE Dean and Chapter of Rochester. There, in the instrument of foundation, it is expressly declared, as one of the purposes of the foundation, that "juventus in literis liberaliter instituatur." There is a statute expressly relating to the grammar-school boys, "De Pueris Grammaticis," and it is directed that there shall be twenty boys "de bonis ecclesiæ nostræ alendi," who were to be taught, &c., and supported at the charges of the church. But, as if this were not strong enough to shew a trust for education, there is also a declaration, that, out of the funds of the church, four poor scholars should always be maintained in the Universities. In fact, the same statutes that directed the existence and sustentation of the dean and canons, directed the existence and sustentation of a given number of scholars, falling under a given description; and the existence Some important alterations in the procedure in Courts of General and Quarter Sessions are made by an act passed on the 28th ult.-the 12 & 13 Vict. c. 45. stead of dealing in a comprehensive manner with some It is greatly to be regretted that the Legislature, indistinct branch of the law, and placing it on a settled and intelligible basis, should frame statutes as it were by piecemeal, and keep the law in a restless state, agitated to and fro by constant alterations and amendments. The present statute is intended to supply an omission in an "Act for the Removal of Defects in the Administration of Justice," (11 & 12 Vict. c. 46), and at the same time to amend the "Act to amend the Procedure in respect of Orders for the Removal of the Poor in England and Wales, and Appeals therefrom," (11 & 12 Vict. c. 31), and also to introduce some wholly new provisions respecting appeals. It would obviously have been more satisfactory if the whole law relating to appeals had been methodised, consolidated, and (as far as might be practicable) settled in one enactment. The 10th section of the new statute extends the provisions of the 11 & 12 Vict. c. 46, s. 4, relative to the amendment of indictments on the trial, to general and quarter sessions, they being hitherto applicable only to "any court of oyer and terminer, and general gaol delivery." Though courts of quarter sessions are authorised "to hear and determine," they are not technically courts of oyer and terminer, (Hale's Sum. P. C. 165; Com. Dig., tit. "Justices," B. 3); and the extension of the power of amendment in the cases of variances between any matters in writing or print produced in evidence, and the recital or setting forth thereof in indictments, will undoubtedly tend to remove one of the defects in the administration of criminal justice. The preamble of the act recites, that "whereas, in cases of appeal to courts of general or quarter sessions of the peace, it is expedient that the law should be more uniform;" yet the second section excludes from the operation of this statute notices of appeal against summary convictions, orders of removal, orders under any statute relating to pauper lunatics, orders in bastardy, or against any proceeding under or by virtue of any of the statutes relating to her Majesty's revenue of excise, or customs, stamps, taxes, or post-office-in fact, the bulk of the appeals that come before sessions. In all these cases, the law with regard to notices of appeals "shall be deemed and taken to be the same as if the provisions hereinbefore contained had not been enacted." With, however, the important exceptions noticed, after the 1st November next, when this act will come into operation, in every case of appeal to any court of general or quarter sessions of the peace, fourteen clear days' notice of appeal, at least, shall be given, and shall be taken to be a sufficient notice. The notice must in all cases be in writing, signed by the party, or his attorney; and the grounds of appeal must be stated in every such notice; it being provided that it shall not be lawful for the appellant on the trial of the appeal to go into or give evidence of any other ground of appeal beside those set forth in such notice. Power of amendment of grounds of appeal, in cases within this act, is given to the sessions, in nearly the same terms as those in the fourth section of the 11 & 12 Vict. c. 31. The sessions have hitherto had no power to award costs, unless where given by the particular statute under which the justices were acting at the time. By the 5th section of the present act it is provided, that in future the sessions shall have a general power to give costs in all cases of appeal-" And be it enacted, that, upon any appeal to any court of general or quarter sessions of the peace, the court before whom the same shall be brought may, if it think fit, order and direct the party or parties, against whom the same shall be decided, to pay to the other party or parties such costs and charges as may to such court appear just and reasonable; these costs to be recoverable in the manner provided for the recovery of costs upon an appeal against an order or conviction, by the 27th section of the 11 & 12 Vict. c. 43. A salutary provision is made by the 7th section respecting the amendment of orders or judgments of justices on appeal, or the return to any writ of certiorari. These orders and judgments have been frequently quashed or set aside on some mere technical objection to the form of the order or judgment, irrespective of the truth and merits of the matters in question: it is therefore enacted, that if, upon the trial of any appeal against any order or judgment of justices, or upon the return of any writ of certiorari, any objection shall be drawing up of such order or judgment, and it shall be made on account of any omission or mistake in the shewn to the satisfaction of the court that sufficient grounds were in proof before the justices making such order or giving such judgment, to have authorised the drawing up thereof, free from the said omission or mistake, it shall be lawful for the court, upon such terms as to payment of costs as it shall think fit, to amend such order or judgment, and to adjudicate thereon, as if no such omission or mistake had existed. Amendment of recognisances, required as a condition of an appeal, is also, in the same way, provided for. By the 11th section power is given, in all cases of appeal, (except in the case of an order in bastardy, or proceeding under any statutes relating to excise, cus- i toms, stamps, taxes, or post-office), to parties, at any time after notice of appeal, by consent, and by order of any judge of one of the superior courts of common law at Westminster, to state a special case without going to the sessions previously, and to agree that a judgment in conformity with the decision of such Court, and for such costs as such Court shall adjudge, may be entered, on motion by either party, at the sessions next or next but one after such decision shall have been given; such judgment to be of the same effect, in all respects, as if the same had been given by the court of general or quarter sessions upon appeal duly entered and continued. A new principle is introduced into the procedure of sessions by the 12th section, viz. reference to arbitration of controversies and disputes, for which the remedy is by appeal to sessions; in analogy to the 9 & 10 Will. 3, c. 15, intituled "An Act for determining Dif-i ferences by Arbitration." It is enacted, "that, at any time after notice given of appeal to any court of sessions ! against any order, rate, or other matter, (except against a summary conviction or an order in bastardy, or against proceeding relating to excise, or customs, stamps, taxes, or post-office), for which the remedy is by such appeal, it shall be lawful for the parties, by order of a judge of the Court of Queen's Bench, to submit the matter of such appeal to the award or umpirage of any person or persons, and to agree that such submission should be made a rule of the said Court of Queen's Bench; and that every award or umpirage duly made under this act shall be as binding and effectual, to all intents, as if the same had been a regular judgment of the said court of general or quarter sessions; and shall! and may, on the application of either party, be inrolled among the records of the said court of sessions." This important provision will apply to appeals against orders of removal, orders under statutes relating to lunatics, poor-rates, &c. &c. The 13th section enables courts of sessions, with the consent of the parties, to refer the matter of the appeal to arbitrators or umpires, and provides that the order of the Court may be made a rule of the Court of Queen's Bench. In the case of Rex v. The Justices of Northampton (Cald. 9; Bott, 716) it had been decided, that, in the case of a poor-rate, the justices, by the consent of both parties, might refer the matter to arbitration, and adopt the award of the arbitrators as their judgment; but, as a general rule, they had no power legally to delegate their authority. The act, which consists of twenty-one sections, contains other provisions of minor importance, which do not call for special notice. MASTER IN CHANCERY.-The Lord Chancellor has appointed Robert Slaney, Gent., of Newcastle-underLyne, Staffordshire, to be a Master Extraordinary in the High Court of Chancery. * 1 |