Imágenes de páginas
PDF
EPUB

that of the Court, or only additional to that power. | Australia Mail Steam-packet Company, (13 Jur., part 1, The act of 1848 gives powers to the Court to allow, in- p. 689). A winding-up order had been made against crease, or diminish &c. the salary or remuneration of the company, previously to which proceedings had been the official manager, and gives no such powers to the taken by a creditor of the company in the Lord Mayor's

Court, the result of which was, that by a certain day Master. The power now given to the Master is, “not the creditor would be able to seize the funds of the withstanding the provision in the said act,” to exercise company in the hands of their bankers. The directors the powers given by it. This is an instance of the in- thereupon filed a bill, and obtained an ex parte injuncvolved style, which, stating nothing positively, but tion restraining the creditor from proceeding. On a something by reference to something else, opens, of motion to dissolve this injunction, the Court was of

opinion, that, by the 58th clause, it was precluded from course, the door to much doubt.

interfering generally against the rights of creditors beNow, is it not an extraordinary style of language to fore the appointment of an official manager, and that say, (referring to an act which gives certain powers to A. there was nothing in the special circumstance of the and none to B.), “notwithstanding the powers given to proceedings being in the Lord Mayor's Court which A., B. may exercise the same powers ?" If it is meant entitled it to interfere. It would seem, from the lanto abrogate the powers given to A., is it not a most cir- guage of the Vice-Chancellor, that his Honor meant to

intimate, that, after the appointment of a manager, it cuitous and infelicitous mode of doing so? If it is not, would be different. The clause which affects the latter what is there in the exercise of the powers by B. in- question is the 73rd, but by that clause it does not consistent with or notwithstanding the provision giv- seem that the act intends to limit the effect of the 58th, ing the powers to A.? If the present act had said, beyond this, that a creditor shall not proceed in any · The Master may fix the salaries, subject to the appro- Master, as prescribed by the act; but, having once so

action until he shall have proved his debt before the bation of the Court”—if that was meant, or indepen- proved his debt, there seems nothing in the act to predently of such approbation if that was meant, the vent him from commencing or proceeding in any action. thing would have been clear. As it is, the “for and And if we recollect that the act has been repeatedly notwithstanding” style has introduced perfectly un- held to be intended to regulate the liabilities as between called-for obscurity.

contributories, not to determine anything as between Next, as to the second cause of obscurity: to this it to follow that the Court should not interfere to prevent

the company, or shareholders, and third parties, it seems is that Lord Brougham’s remedy addresses itself. . We creditors pursuing such remedies as they might have say Lord Brougham's remedy, because his Lordship is now powerfully urging its adoption. But we need not pursued before the act, except in so far as the act itself say, that, for years, the necessity of having bills ori- tion, only forbidding a creditor to proceed at law antil

prescribes or permits interference. Now, the 73rd secginally prepared and finally settled by a few persons he has proved his debt before the Master, by implicaof legal knowledge and skill, has been familiar to the tion, intends him to be at liberty to use any of his Profession, and has been pointed out in this Journal, as remedies after he shall have proved before the Master. well as, we believe, in many others. On this branch of Moreover, the 73rd section points out a specific remedy the subject we shall not here say much. It is too evi- against the creditor, by giving power to the judge of the dent, both on principle and from the result of observa- 1 court where the action is commenced, not to the Court tion, that such documents as acts of Parliament ought to be settled so that all their clauses should be in har- of Chancery, to stay proceedings; and though, unmony with each other, and all as precisely expressed questionably, such a special remedy does not oust the as possible, and as nearly as possible in a uniform style pated that the Court of Chancery would not stay an of language. That this

result can be obtained under action by injunction, under the 73rd section of the the present practice, of every one enforcing such altera- Winding-up Act, unless it appeared that the court of tions in the passage of the bill through Parliament as law either would not or could not interfere, so as to do he desires and can enforce, not only by striking out and complete justice. The latter part of the 16th section of adding clauses

, but by altering the wording of clauses, the Winding-up Amendment Act, 1849, seems intended and then, without any final revision of the mutilated to have some bearing on this question; but it is so obbill, of presenting it to Parliament to be passed, is out scurely worded, that we confess ourselves unable to usof all question.

derstand what it does mean. A practicable remedy is that so often suggested, and now enforced by the eloquence of Lord Brougham; Practice.]—Where a party was put on the list of and if the country paid 5000l. a year for a competent contributories, and duly received notice to attend en revision of bills before they became acts, we verily settling the list, but did not, and allowed the time for believe, that, in two or three years, it would save, in appealing, under the 78th section, to pass, although he the shape of preventing unnecessary law expense, the was not allowed strictly to appeal, he was permitted to capital that would produce 50001. a year.

read evidence to explain why he had not attended; and,

such evidence being satisfactory, he was allowed to go CASES UPON THE JOINT-STOCK COMPANIES the list. (Ex parte Ashburner, re The Liverpool and

in before the Master to dispute his liability to be on WINDING-UP ACT, 11 & 12 VICT. c. 45.

Manchester Saw-mills and Timber Company, 13 Jur., (Continued from p. 246*).

part 1, p. 691; Ex parte Holt, re the same Company).

Power of Master to order Delivery of Papers to the Jurisdiction of the Court of Chancery against Creditors official Manager.]—In The Oxford and Worcester Esof a Company.]-A very important question was raised on tension and Chester Junction Railway, $c. Company, the construction of this act in the case of The India and (13 Jur., part 1, p. 691), it was contended, that the

* The Editor, in inserting this and the two preceding papers power of the Master extends, under the 28th and 66th on this subject, does not, of course, profess to give more to sections, to ordering the solicitor of a company to dethe readers of The JURIST than a classification of the cases, liver up papers in his hands to the official manager, and a short statement of their results. But this, he believes, although he claims & lien upon them for a bill of costs will be found convenient to those whose practice leads them not disputed; but the Court held, that there was nointo the Master's office under the Winding-up Act.

thing in the act to deprive the solicitors of their lien.

As to Trustees being Contributories.)-A widow was Parbury), which contained much the same elements, entitled, as residuary legatee of a will of which she was viz, an allotment of shares upon conditions which were executrix, to shares in a banking company. She re- never fulfilled, his Honor held the allottee a contriceived the dividends for several years by her agent, butory, carefully avoiding to decide whether he had or Hall. She re-married, but previously dealt with her had not been deceived by certain members of the comshares as in her own right, by assigning them to Hall, pany, or whether he had not a remedy against those as a trustee for her on the trusts of her marriage set- who deceived him. The result of these cases, and of tlement. Notice of the trust-deed was given to the the case of Ex parte Morgan, referred to in the judgment bank. The bank never returned Hall as registered in Ex parte Parbury, is, we apprehend, that, in deterowner to the Stamp-office; and Hall continued to receive mining whether a party is a contributory, the Court the dividends, as agent for the widow, by the widow's inquires whether a contract exists between the alleged name; and, in fact, did not comply with the require contributory and other persons, under which he may be ments of the company's deed. The question was, whe- co-liable with any of such persons; and, if it finds that ther Hall was a contributory; and it was held, that he there is such a contract, holds him a contributory, alwas, but liable only from the date of the assignment to though there may be an equity between him individuhim. (Er parte Hall, re The North of England Joint- ally and some of the parties to the contract, and, perstock Banking Company, 13 Jur., part 1, p. 691). haps, (though this is not so clearly involved in the What Companies are within the Statute.)-Where a

decision), between him and the public, entitling him to company had been dissolved, and its business trans say, that, as between him and such persons, the contract

cannot be enforced. ferred to another company, but there remained a sum of money in the hands of trustees for the benefit of the power is reserved to the company to buy the shares of

Where, by the deed of settlement of a company, no members of the dissolved company, it was held clearly shareholders, such a sale to the company is invalid; within the act. (In re The London and Westminstre and as a consequence, if a shareholder transfers his Mutual Life Assurance Company, 13 Jur., part 1, shares to another person, with notice that that person p. 721).

only purchased for the company, (the company having Generally what constitutes Parties Contributories.] - no power so to purchase), and then dies, the executors The case of Ex parte Davidson, re The Marylebone of the deceased shareholder, and not the nominal purJoint-stock Banking Company, (13 Jur., part 1, p. 722), chaser, will be placed on the list of contributories. decides, that, if the managers of a company use the (Ec parte Morgan, re The Vale of Neath_Brewery, 1 name of a party as that of a shareholder for the proved Hall & T. 320, and Ex parte Richmond's Executors, re or implied purpose of holding out his accession as an in- The Vale of Neath Brewery, 13 Jur., part 1, p. 727). lucement to the public to join the company, and he per- Where a person agreed to purchase the shares of annits his name so to be used, under an indemnity from other in a company, and paid for them, and the vendors he managers of the company, but without the knowledge gave the proper notice to the company, who assented of the general shareholders, he is liable as a contribu- to the transfer, and made out new certificates in the ory, although he has never acted as a shareholder, name of the purchaser, but no legal transfer was ever ither by paying calls, or receiving dividends, or other executed, and the purchaser never did anything beyond wise. The ground of the decision is the participation the contract and payment, he was held, nevertheless, a n, or active sanction of the intention to deceive; and it contributory, but liable only from the day of his conippears from the judgment, that, in such a case, it is tract. (Ex parte Sanderson, re The North of England not necessary to shew that any persons have been ac- Joint-stock Banking Company, 13 Jur., part 1, p. 740). ually deceived; the intention to deceive, and the fact proved or assumed that persons became shareholders ifter the transaction, being sufficient.

PUBLIC GENERAL STATUTES. On this subject it is material to observe, that a

12 & 13 VICTORIÆ.-SESSION 2. person may be a contributory under the Winding-up Act, although he may be, as between himself and cer

(Continued from p. 335). ain members of the company, or as between himself

CAP. XXVI. ind creditors of the company suing him separately, en- An Act for granting Relief against Defects in Leases made itled to say he is not liable. This distinction is alluded

under Powers of Leasing, in certain Cases. o by Knight Bruce, V.C., in Ex parte Parbury, re The

[26th June, 1849.] Direct London and Exeter Railway Company, (13 Jur., Sect. 1. Interpretation of Terms. part 1, 725), and would seem proper to be kept in view 2. Leases invalid, owing to Deviation from Terms of in reference to the case of Ex parte Sharpus, re The Uni

the Power, to be deemed Contracts in Equity for Persal Salvage Company, (13 Jur., part i, 723). In the

such Leases as might have been granted under the ase last mentioned, Mr. Sharpus applied for and had al

Power. Proviso where the Grantor or Reverlotted to him shares in the company, on which he paid

sioner is willing to confirm. he deposit, and received the scrip certificates, but he did 3. Acceptance of Rent to be deemed a Confirmation. nothing more. The certificates referred to certain con- 4. Leases invalid at the granting thereof may become litions, some of the most material of which, particu

valid, if the Grantor continue in the Ownership larly the conditions that a certain number of shares

until the Time when he might lawfully grant such

a Lease. should be allotted, and a certain capital should be subcribed, were not fulfilled. The question was, whether

5. What shall be deemed an intended Exercise of a

Power. Sharpus was a contributor or not. The Master referred

6. Saving the Rights of the Lessees under Covenants o the cases of Walstab v. Spottiswoode (15 Mee. & W.

for Title and for quiet Enjoyment, and the Lessor's 501) and Wontner v. Shairp (11 Jur., part 1, 373), and

Right of Re-entry for Breach of Covenant, &c. arlier cases, as shewing, that, as against creditors, or as 7. Act not to extend to certain Leases. Pending Suits between subscribers, a party, situated as Sharpus was,

not to be prejudiced. night have said that the company, in respect of which 8. Act not to extend to Scotland. he was sued, was not the company which he agreed to 9. Act may be amended &c. oin and become a member of; but, on appeal, Knight Whereas, through mistake or inadvertence on the part of Bruce, V. C., reversed the decision. His Honor did persons granting leases, and through ignorance on the part of not, in that case, give his reasons; at least, none are re- lessees of the titles of persons from whom leases are accepted, ported. But in the other case mentioned, (Ex parte leases granted by persons having valid powers of leasing are frequently invalid, as against the successors in estate of such dice or take away any right of re-entry or other right or repersons, by reason of the non-observance or omission of some medy to which, but for the passing of this act, the person condition or restriction, or by reason of some other deviation granting such lease, his heirs, executors, administrators, or asfrom the terms of such powers : and whereas leases granted signs, or other the person for the time being entitled to the in the intended exercise of such powers are sometimes invalid, reversion expectant on the determination of such lease, would as against the successors in estate of the persons granting the or might have been entitled, for or by reason of any breach of same, by reason that, at the time of granting the same, the the covenants, conditions, or provisoes contained in such lease, person granting the lease could not lawfully grant such lease, and on the part of the lessee, his heirs, executors, admini. although at a subsequent time, and during the continuance of strators, or assigns, to be observed and performed. his estate in the hereditaments comprised in such lease, he might have granted the same in the lawful exercise of such siastical corporation or spiritual person, or to any lease of the

7. That this act shall not extend to any lease by an eccle. power : and whereas it is expedient that provision should be possessions of any college, hospital, or charitable foundation, made for granting relief in the cases aforesaid, in manner act, words importing the singular number shall include the relinquished, or recovered adversely by reason of the invalidity after mentioned : be it enacted, &c., that, in construing this or to any lease where, before the passing of this act, the bere

ditaments comprised in such lease have been surrendered or plural number, and words importing the plural number shall thereof, or there has been any judgment or decree in any ac. include the singular number, and words importing males shall tion or suit concerning the validity of such lease, and shall not extend to females, and the word “ person” shall include prejudice or affect any action or suit already commenced and corporations aggregate or sole, unless, in any of the cases now pending in any court of law or equity, but every such action aforesaid, there

be something in the context repugnant to such and suit may be proceeded with, and such relief bad therein, as construction.

if this act had not passed. 2. That where, in the intended exercise of any such power

8. That this act shall not extend to Scotland. of leasing as aforesaid, whether derived under an act of Parliament or under any instrument lawfully creating such power,

9. That this act may be amended or repealed by any act to a lease bas been or shall hereafter be granted, which is, by be passed in this session of Parliament. reason of the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms

CAP. XXVII. of such power, invalid as against the person entitled, after the determination of the interest of the person granting such lease, | An Act to remove Doubts concerning the Transportation of to the reversion, or against other the person who, subject to Offenders under Judgment of Death to whom Mercy may be any lease lawfully granted under such power, would have been extended in Ireland.

[26th June, 1849.] entitled to the hereditaments comprised in such lease, such lease, in case the same have been made bonâ fide, and the

CAP. XXVIII. lessee named therein, his heirs, executors, administrators, or An Act to enable the Commissioners of Greenwich Hospital to assigns, (as the case may require), have entered thereunder,

regulate and manage the Markets held at Greenwich, in the shall be considered in equity as a contract for a grant, at the

County of Kent.

[26th June, 1849.] request of the lessee, his heirs, executors, administrators, or assigns, (as the case may require), of a valid lease under such

CAP. XXIX. power, to the like purport and effect as such invalid lease as aforesaid, save so far as any variation may be necessary in An Act to amend the Laws in force for the Encouragement of order to comply with the terms of such power; and all persons

British Shipping and Navigation.

[26th June, 1849.] who would have been bound by a lease lawfully granted under Sect. 1. Certain acts repealed from and after the 1st Ja. such power shall be bound in equity by such contract: pro- nuary, 1850:-8 & 9 Vict. c. 88; 8 & 9 Vict. c. 89, ss. 3, 5, 7, vided always, that no lessee under any such invalid lease as 9; 8 & 9 Vict. c. 93, ss. 2, 4, 44; 8 & 9 Vict. c. 86, s. 63; 7 aforesaid, his heirs, executors, administrators, or assigns, shall & 8 Vict. c. 112, s. 37; 37 Geo. 3, c. 117; 4 Geo. 4, c. 80, $. be entitled, by virtue of any such equitable contract as afore- 20; 4 Geo. 4, c. 77; 5 Geo. 4, c. 1; 8 & 9 Vict. c. 90, s. 8; said, to obtain any variation of such lease, where the persons 5 & 6 Vict. c. 14, s. 8. who would have been bound by such contract are willing to confirm such lease without variation.

Coasting Trade. 3. That the acceptance of rent under any such invalid lease

2. Coasting trade of the United Kingdom and Isle of Ma.

3. Trade with the Channel Islands. as aforesaid sball, as against the person so accepting the same, be deemed a confirmation of such lease.

4. Coasting trade of the British possessions.

5. Queen in Council may regulate coasting trade of colonisa 4. That where a lease, granted in the intended exercise of on their address. any such power of leasing as aforesaid, is invalid by reason, 6. Coasting trade of India to be regulated by Governor.Ge. that, at the time of the granting thereof, the person granting neral in Council. the same could not lawfully grant such lease, but the estate of

British Ships. such person in the hereditaments comprised in such lease shall

7. No ship British unless registered and navigated as such. have continued after the time when such or the like lease might

8. What persons to be British seamen. have been granted by him in the lawful exercise of such power, 9. Proportion of seamen may be altered by proclamation. then and in every such case such lease shall take effect, and be as valid as if the same had been granted at such last-mentioned

Reciprocity. time, and all the provisions herein contained shall apply to 10. Queen may restrict the privileges of foreign ships in every such lease.

certain cases ; 5. That when a valid power of leasing is vested in or may

11. And may impose additional duties. be exercised by a person granting a lease, and such lease (by

12. Order in Council to specify ships to which it applies. reason of the determination of the estate or interest of such

13. Orders may be revoked. person or otherwise) cannot have effect and continuance ac

14. Orders to be published in Gazette, and to be lei! cording to the terms thereof, independently of such power,

before Parliament.

15. Penalties. such lease shall, for the purposes of this act, be deemed to be granted in the intended exercise of such power, although such

16. Penalties, how to be recovered. 8 & 9 Vict. c. 87. power be not referred to in such lease.

Registry. 6. Provided always, and be it enacted, that nothing in this 17. Who may be owners of British vessels. act contained shall extend or be construed to prejudice or take 18. Form of certificate of registry. away any right of action or other right or remedy to which, 19. Form of declaration. but for the passing of this act, the lessee named in any such 20. Proviso for vessels under fifteen tons burthen in inland lease as aforesaid, his heirs, executors, administrators, or as- navigation, and for vessels under thirty tons burthen for the signs, would or might have been entitled, under or by virtue Newfoundland fishery. of any covenant for title or quiet enjoyment contained in such 21. Act to take effect on the 1st January, 1850. lease on the part of the person granting the same, or to preju. 22. Act may be amended &c.

CAP. XXX.

CAP. XLIII. An Act for the better Preservation of Sheep, and more speedy An Act for punishing Mutiny and Desertion of Officers and Detection of Receivers of stolen Sheep in Ireland.

Soldiers in the Service of the East India Company, and for [26th June, 1849.] regulating in such Service the Payment of Regimental Debts

and the Distribution of the Effects of Officers and Soldiers CAP. XXXI.

dying in the Service.

[28th July, 1849.] An Act for requiring the Transmission of the annual Abstracts and Statements of Trustees of Turnpike-roads and Bridges

CAP. XLIV. in Scotland to the Secretary of State to be laid before Par- An Act to apply the Sum of Three Millions out of the Conso. liament. [26th June, 1849.] lidated Fund to the Service of the Year 1849.

[28th July, 1849.] CAP. XXXII. An Act to continue, to the End of the Year 1851, certain tem.

CAP. XLV. porary Provisions relating to the Collection of Grand Jury An Act to amend the Procedure in Courts of General and Cess in Ireland.

[26th June, 1849.] Quarter Sessions of the Peace in England and Wales, and

for the better Advancement of Justice in Cases within the CAP. XXXIII.

Jurisdiction of those Courts. [28th July, 1849.] An Act for regulating the Carriage of Passengers in Merchant Sect. 1. Uniformity of T'ime for Notice of Appeal. Notice Vessels.

[13th July, 1849.]

of Appeal to be in Writing, and signed. Grounds

of Appeal to be stated. CAP. XXXIV.

2. Act not to affect Notices of Appeal against Orders An Act to amend an Act regulating the Justice of the Peace

of Removal, Orders of Bastardy, &c. Small Debt Courts in Scotland. [13th July, 1849.]

3. Defects in Statement of Grounds of Appeal. Amend

ment of Grounds of Appeal. CAP. XXXV.

4. Frivolous Grounds of Appeal. An Act for requiring annual Returns of the Expenditure on

5. Sessions to have a general Power to give Costs in all

Cases of Appeal. Highways in England and Wales, to be transmitted to the

6. Frivolous Appeals. Secretary of State, and afterwards laid before Parliament.

7. Amendment of Orders or Judgments of Justices on [13th July, 1849.]

Appeal or Return to Certiorari. Rule for Cer

tiorari to state Objections. CAP. XXXVI.

8. Amendment of Recognisances. An Act to make Provision, during the present Year, and to 9. Decisions of Sessions, when final.

the End of the Year 1851, relating to the Collection of 10. Amendment of Indictment. County Cess in Ireland, and to the Remuneration of the 11. Power to state a special Case without going to the Collectors thereof.

[13th July, 1849.]

Sessions previously.

12. References to Arbitration. CAP. XXXVII.

13. References by Order of Court of Sessions. An Act to continue to the 1st Day of October, 1850, and to the 14. Where Reference abortive, Queen's Bench may End of the then next Session of Parliament, an Act to amend

order Sessions to hear the Appeal. the Laws relating to Loan Societies. [13th July, 1849.] 15. 3 & 4 Will. 4, c. 42, to be applicable to References Whereas an act was passed in the 3 & 4 Vict. (c. 110], inti.

under this Act. Arbitrators to have Power of tuled “ An Act to amend the Laws relating to Loan So.

Amendment. cieties," which act has been continued by sundry acts until the

16. Recognisances for Prosecution and Trial of Appeal. 1st October, 1849, and to the end of the then next session of

17. Levying and Recovery of Fines, Issues, and Amer

ciaments. Parliament, and it is expedient that the same should be further continued : be it enacted, &c., that the said act shall be fur.

18. Enforcing Orders of Sessions.

19. Not to extend to Scotland or Ireland. ther continued to the 1st October, 1850, and to the end of the then next session of Parliament.

20. Commencement of Act.

21. Act may be amended, &c. CAP. XXXVIII.

Whereas, in cases of appeal to courts of general or quarter

sessions of the peace, it is expedient that the law should be An Act to continue for Five Years an Act of the Second and more uniform : be it therefore enacted, &c., that in every case

Third Years of her present Majesty, for the better Preven- of appeal (except as hereinafter mentioned) to any court of getion and Punishment of Assaults in Ireland.

neral or quarter sessions of the peace fourteen clear days' notice [13th July, 1849.] of appeal at least sball be given, and such shall be sufficient

notice, any act or acts, or any rule or practice of any court or CAP. XXXIX.

courts, to the contrary notwithstanding; and such notice of An A for further continuing, until the 1st Day of August, appeal shall be in writing, signed by the person or persons

1850, and to the End of the then next Session of Parlia- giving the same, or by his, her, or their attorney on his, her, ment, certain temporary Provisions concerning Ecclesiastical or their behalf, and the grounds of appeal shall be specified in Jurisdiction in England.

[13th July, 1849.] every such notice: provided always, that it shall not be lawful

for the appellant or appellants, on the trial of any such apCAP. XL.

peal, to go into or give evidence of any other ground of An Act to continue, until the 31st Day of July, 1850, and to appeal besides those set forth in such notice.

the End of the then next Session of Parliament, certain of 2. That none of the provisions hereinbefore contained relatthe Allowances of the Duty of Excise on Soap used in Ma- ing to notices of appeal shall be construed to affect or alter the nufactures.

[13th July, 1849.] law as to notice of appeal against a summary conviction, or

against an order of removal, or against an order under any CAP. XLI.

statute relating to pauper lunatics, or against an order in basAn Act to extend an Act of the Fifty-sixth Year of King George tardy, or against any proceeding under or by virtue of any of

III, for providing for a new Silver Coinage, and for regu. the statutes relating to her Majesty's revenue of excise or cuslating the Currency of the Gold and Silver Coin of this Realm. toms, stamps, taxes, or post-office, but the law with regard to

[13th July, 1849.] notices of all such appeals shall be deemed and taken to be the

same as if the provisions hereinbefore contained had not been CAP. XLII.

enacted. An Act to provide for the Execution for One Year of the Office 3. And whereas a statement of the grounds of appeal, when of Sheriff in the County of Westmoreland.

required by this or any other statute, is for the purpose of [13th July, 1849.) enabling the party receiving it to inquire into the subject of

such statement, and, if need be, to prepare for trial : be it 8. And whereas the statutes giving a right of appeal against therefore enacted, that upon the hearing of any appeal to any orders or summary convictions frequently require a recogni. court of general or quarter sessions of the peace no objection sance or recognisances to be entered into as a condition of on account of any defect in the form of setting forth any such appeal, and appellants are liable to be prevented from ground of appeal shall be allowed, and no objection to the re- trying their appeals upon the merits in consequence of imception of legal evidence offered in support of any ground of perfections in the taking of such recognisances : be it enacted, appeal shall prevail, unless the court shall be of opinion that that where any recognisance or recognisances which shall have such ground of appeal is so imperfectly or incorrectly set forth been entered into within the time by law required, before any as to be insufficient to enable the party receiving the same to justice or justices, for the purpose of complying with any such inquire into the subject of such statement, and to prepare for condition of appeal, shall appear to the court before which trial : provided always, that in all cases where the court shall such appeal is brought to have been insufficiently entered into, be of opinion that any objection to any ground of appeal, or to or to be otherwise defective or invalid, it shall be lawful for the reception of evidence in support thereof, ought to prevail, such court, if it shall so think fit, to permit the substitution it shall be lawful for such court, if it shall so think fit, to cause of a new and sufficient recognisance, or new and sufficient any such ground of appeal to be forth with amended by some recognisances, to be entered into before such court, in the officer of the court, or otherwise, on such terms as to payment place of such insufficient, defective, or invalid recognisance or of costs to the other party, or postponing the trial to another recognisances, and for that purpose to allow such time, and day in the same sessions or to the next subsequent sessions, or make such examination, and impose such terms, as to pay both payment of costs and postponement, as to such court shall ment of costs, to the respondent or respondents

, as to such appear just and reasonable.

court shall appear just and reasonable ; and such substitated 4. That if in any notice of appeal the appellant or appel, to all intents and purposes, as if the same had been duly en

recognisance or recognisances shall be as valid and effectual, lants shall have included any ground or grounds of appeal tered into at any earlier time or times, as required by any which shall in the opinion of the court determining the appeal statute or statutes for that purpose. be frivolous or vexatious, such appellant or appellants shall be liable, if the court shall so think fit, to pay the whole or any 9. That the decisions of the court of general or quarter sexpart of the costs incurred by the respondent or respondents in sions of the peace upon the hearing of any appeal, as to the disputing any such ground or grounds of appeal, such costs to sufficiency of the statement of any ground or grounds of appeal

, be recoverable in the manner hereinafter directed as to the and as to the amending or refusing to amend any order or other costs incurred by reason of such appeal.

judgment of a justice or justices appealed against, or the state. 5. That, upon any appeal to any court of general or quarter stitution of any new recognisance or recognisances as aforesaid

,

ment of any ground or grounds of appeal, and as to the subsessions of the peace, the court before whom the same shall shall be final, and shall not be liable to be reviewed in any 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 court, by means of a writ of certiorari or mandamus, of

otherwise. other party or parties such costs and charges as may to such court appear just and reasonable, such costs to be recoverable 10. That every court of general or quarter sessions of the in the manner provided for the recovery of costs upon an ap- peace, on the trial of any offence within its jurisdiction, when peal against an order or conviction by an act passed in the ever any variance or variances shall appear between any matter 11 & 12 Vict. [c. 43], intituled “ An Act to facilitate the Per. in writing or in pript produced in evidence and the recital or formance of the Duties of Justices of the Peace out of Sessions setting forth thereof in the indictment, shall have the same within England and Wales, with respect to summary Convic- power in all respects to cause the indictment to be amended tions and Orders."

which is given to courts of oyer and terminer and general gaol 6. And for the more effectual prevention of frivolous ap- delivery with regard to offences tried before such last-mede peals, be it enacted, that any court of general or quarter tioned courts by virtue of an act of the 11 & 12 Vict. (c. 16)

, sessions of the peace, upon proof of notice of any appeal to intituled " An Act for the Removal of Defects in the Admi. the same court having been given to the party or parties nistration of Criminal Justice ;" and after such amendment the entitled to receive the same, though such appeal was not trial shall proceed in the same manner in all respects, both afterwards prosecuted or entered, may, if it so think fit, at the with regard to the liability of witnesses to be indicted for pe same sessions for which such notice was given, order to the jury and otherwise, as if no such variance or variances had apparty or parties receiving the same such costs and charges as peared. by the said court shall be thought reasonable and just to be 11. That at any time after notice given of appeal to any paid by the party or parties giving such notice, such costs to court of general or quarter sessions of the peace against any be recoverable in the manner last aforesaid.

judgment, order, rate, or other matter, (except an order in 7. And whereas in many cases, where justices of the peace bastardy, or a proceeding under or by virtue of any of the sta are by law empowered to make orders or to give judgments tutes relating to her Majesty's revenue of excise or customs, great expense and frequent failures of justice have been occa stamps, taxes, or post-office), for which the remedy is by such sioned by reason that such orders or judgments have, on appeal, it shall be lawful for the parties, by consent, and by appeal to the general or quarter sessions of the peace, or on

order of any judge of one of the superior courts of common removal by certiorari

, into the Court of Queen's Bench, been law at Westminster, to state the facts of the case in the fora quashed or set aside upon exceptions or objections to the form of a special case for the opinion of such superior court, and of the order or judgment, irrespective of the truth and merits agree that a judgment in conformity with the decision of seed of the matters in question : for remedy thereof be it enacted, court, and for such costs as such court sball adjudge, may be that if, upon the trial of any appeal to any court of general or entered on motion by either party at the sessions next or nest but quarter sessions of the peace against any order or judgment one after such decision shall have

been given; and such judgment made or given by any justice or justices of the peace, or if, shall and may be entered accordingly,

and shall be of the same upon the return to any writ of certiorari, any objection shall effect in all respects as if the same had been given by the czart be made on account of any omission or mistake in the drawing of general or quarter sessions upon an appeal duly entered and up of such order or judgment, and it shall be shewn, to the

continued. satisfaction of the court, that sufficient grounds were in proof 12. And whereas by a statute passed in the 9 & 10 Will. 3, before the justice or justices making such order or giving such [c. 15], intituled “ Ản Act for determining Differences by judgment to have authorised the drawing up thereof, free from Arbitration," provision was made for rendering more effecten the said omission or mistake, it shall be lawful for the court, the awards of arbitrators in the case of controversies and dis. upon such terms, as to payment of costs, as it shall think fit, putes for which there is no other remedy but by personal action to amend such order or judgment, and to adjudicate there- or by suit in equity : and whereas it is expedient in like manupon, as if no such omission or mistake had existed : provided ner

to facilitate and render more effectual references to arbia always, that no objection on account of any omission or mis- tration of controversies and disputes for which the remedy is take in any such order or judgment brought up upon a return by appeal to a court of general or quarter sessions of the peace : to a writ of certiorari shall be allowed, unless such omission be it enacted, that at any time after notice giren of appeal or mistake shall have been specified in the rule for issuing such any court of general or quarter sessions of the peace against certiorari.

any order, rate, or other matter, (except a summary conrico

« AnteriorContinuar »