Superior Courts: K. B. Practice Court. 101 whether in term or not, and an intervening | The notice of declaration not having been Sunday reckons as one day. served until the 30th of October, the application was made on the second day of term, Cause was shewn against a rule nisi, obtain- which was within the period of four days ed for setting aside the declaration and all sub-pointed out by the plaintiff. It was therefore sequent proceedings, on the ground of irregu- submitted the rule should be made absolute. larity. It appeared that the defendant had The Court said, that the defendant was not been served with a copy of the writ of sum-bound to take any notice of the original writ mons, in the month of August, which was di- of summons, for supposing that to be regular, rected to "Joshua Edwards," his real name the declaration must be irregular. The next being "Stevens ;" and on the 30th of October question was, whether the application was the notice of declaration was also served. In inade in proper time. If it should be made that notice, however, as well as in the declara-in term, then the four first days of term were tion, the proper name of "Stevens" was used, and the ground of the application was the variance between the declaration, and the copy of the writ of summons. It was now contended, in opposition to the rule, that the objection depended entirely on the original writ, and it therefore came too late, according to the rule of the Court, which provided, that all such objections should be taken within a reasonable time. This was not the case here, for the rule was not obtained until the 4th of November, although the copy of the writ was served in August. In a case cited, where the writ was served on the 25th of October, and the objection taken on the 3d of November, (the 2nd being Sunday,) it was held to be too late. Besides the application should have been made in vacation, as laid down in a former case, where the Court said, that if any irregularity arose in the proceedings in vacation, the application to set aside those proceedings should also be made in vacation, before a Judge at chambers, provided there was time. Proceedings were now taken, and under the Uniformity of Process Act, judgment and execution might be had in vacation. If the objection had been to the declaration, that also must have failed, for the defendant was there called by his proper name, as he also was in the original writ, although the copy differed in that respect. The Court suggested, that the defendant might be taken to admit his name to be Edwards, and then the declaration would differ. In that case, it was submitted, the defendant was still too late; for notice of declaration having been served on the 30th of October, the defendant did not apply to the Court until the 6th of November, which was one day after his time. In support of the rule, it was argued, that the defendant could not be bound to take any notice of the original copy of the writ, which was not directed to him, and could not therefore be required to go to a Judge to set that aside, until he found an appearance had been entered for him, by the notice of declaration being served. The declaration, at all events, was irregular, because, if founded on the copy of the writ of summons, there was a variance; and if not, there was no process to support it. With regard to the tribunal to which the application should have been made, it was admitted, that out of term, the defendant should have gone to a Judge at chambers, but that in term, he was compelled to come to the Court. open to the defendant, but if not, it should be made within four days from the service of the notice. In the opinion of the Court, the latter was the proper course to have been pursued. Then, if the intervening Sunday was reckoned as one day, the application was too late; if not, the reverse. Cur. adv. vult. The Court afterwards delivered the opinion of the Judges, and said, that the Sunday must be reckoned as one day, and that the defendant should have applied within four days from the service of the notice of declaration. The rule must therefore be discharged without costs, but the defendant might have a week to plead. Rule discharged.-Hinton v. Stevens, M. T. 1835. K. B. P. C. VENUE OF ACTION.-ISSUE OF CAPIAS.-DEFENDANT'S RESIDENCE.-SHERIFF.-PRO CEEDINGS TO OUTLAWRY. Although a defendant shall reside in Montgomeryshire, if the venue of an action be laid in London, and the writ of capias issued to the sheriffs of that city, the subsequent proceedings to outlawry shall be issued to the same officer. Cause was shewn against a rule for setting aside the proceedings to outlawry taken against the defendant, on the ground of the irregularity of the original writ of capias. That writ, it appeared, was issued to the sheriffs of London, although the defendant was resident in Montgomeryshire, of which county he was also desscribed therein. It was now contended, however, that this course was perfectly regular, and consistent with the established practice of the Court. The venue of the action being laid in London, it was necessary for the subsequent proceedings also to be issued to the officers of that city, by which means the proceedings would be more speedy;-as instead of the defendant being required from county court to county court, he was required froin husting to husting, which were held every fortnight. The writ of foreign proclamation was next issued into Montgomeryshire, and the necessary proceedings there taken, in accordance with the directions of the statute of Eliz. and of Will. 3. It was therefore contended, that no grounds existed for setting aside the proceedings. In support of the rule it was submitted, that as in the writ of capias the defendant was described as of Montgomeryshire, the subsequent writs on proceeding to outlawry should have 102 Superior Courts: K. B. Practice Court; Exchequer. dant was commanded to give up the books, no opportunity would be afforded to examine into the conviction. The Court therefore ought to have seen, before the rule was granted, that the conviction was regular; but that not having been done, the rule must be discharged. The conviction should be attached to the affidavits. Rule discharged.-Rex v. Simms, M. T. 1835. K. B. P. C. been issued into that county. Writs of capias | sary, yet in the present case, where the defenfor ordinary purposes were usually issued, describing the defendants as of their last known place of abode; and no grounds existed why similar means should not be adopted in writs which were the foundation of proceedings to outlawry. In the Uniformity of Process Act it was clearly the intention of the legislature to abolish the old system of issuing writs into places where it was known the defendants did not reside; and although the subsequent writs of proceedings to outlawry, as to the capias, were still retained, yet the requisite forms of an ordinary writ should be complied with. Cur. adv. vult. DISTRINGAS. - SERVICE OF WRIT OF SUMMONS. CALLS AND APPOINTMENTS. The Court in giving judgment said, that The calls and appointments to serve a writ of although the proper description of the defend- summons should be made on different days, ant must be given in the original writ of sum- to entitle the plaintiff to a distringas. mons, which was a serviceable writ, yet in the This was an application for a writ of distrinsubsequent capias the same minuteness was un-gas. It appeared that three calls and two apnecessary. The language of the two writs, pointments had been made, but they were all besides, was different. The plaintiff in this on the same day. It was submitted, however, case might have received some information that sufficient had been done to entitle the that the defendant had arrived in London, and plaintiff to the writ, as it was evident the deas the writ was for the information of the she- fendant was keeping out of the way. A case riff, it was regular to issue the writ to the she-was cited, where two calls on one day had been riffs of London, although the defendant might made, when it appeared the defendant was generally reside in Montgomeryshire. The rule similarly keeping out of the way. must therefore be discharged, without costs. Rule discharged without costs.-Morris v. Davies, M. T. 1835. K. B. P. C. The Court thought, that three calls in one day were not sufficient to entitle the plaintiff to the writ. Although, in the case cited, two calls had been permitted in one day, that, in the opinion of the Court, was not proper, ex MISAPPLICATION OF PARISH FUNDS.-CONVIC- cept under the peculiar circumstances of that TION OF OVERSEER.-DELIVERY OF PARISH case. The calls should be made on different BOOKS, MANDAMUS.-PROOF OF CONVIC- days. TION. Rule refused.-Cross v. Wilkins, M. T. 1835. K. B. P. C. Exchequer. DISTRINGAS.-ATTEMPT TO SERVE SUMMONS. In an application for a mandamus against an overseer, commanding him to deliver up the parish books, &c. who had been convicted under the Poor Law Act, for wilful misapplication of the parish funds, by which he was incapacitated from holding the office, a copy of the conviction should be attached to the affidavits in support of the rule. A rule nisi for a mandamus had been obtained What are sufficient attempts to serve « defendant with a writ of summons, in order to in this case, commanding the defendant to deentitle the plaintiff to a writ of distringas. liver up the parish books and monies of a parish, in which he had held the office of overseer. The Holmes applied for a distringas in this case. defendant, it appeared, had been convicted The affidavit on which he moved, stated the under the Poor Law Amendment Act, for un-requisite number of calls and appointments. lawfully and wilfully misapplying the parish money. No conviction, however, had been drawn up, and the Court in consequence called upon the learned counsel, by whom the rule had been obtained, to shew why it should not be discharged on that ground. He contended that the immediate proof of the conviction was unnecessary. The consequences of that conviction to the defendant ensued immediately on its taking place, and his having given up his office in consequence was, for the present, a sufficient proof of the fact. The conviction being drawn up before the issue of the writ of mandamus would, at all events, be sufficient. Cur, adv. vult. The Court said, that although in some cases the proof of the conviction would be unneces On the last occasion, when a copy of the writ of summons was left, the person on the defendant's premises told the deponent, endeavouring to serve the summons, that he might find the defendant where he could, but that no information would be given there with respect to him. This, it was contended, was sufficient to shew the defendant to be keeping out of the way, and therefore to entitle the plaintiff to a writ of distringas. Bolland, B., was of opinion, that enough had been done to entitle the plaintiff to his writ, and accordingly gave leave for it to issue. Writ granted.-Godfrey v. Green, M. T. 1835. Excheq. Superior Courts: Exchequer.-Answers to Queries. ASSAULT AND BATTERY.-DEFENDANT'S SPE- In an action for assault and battery, if in the error. 66 " ANSWERS TO QUERIES. 103 Law of Landlord and Tenant. AGREEMENT FOR LEASE. VOL. 10. P. 479. If A. wishes B. to execute the lease, he can compel him so to do by filing a bill in Equity. In order to obtain possession of the premises, A.'s course would be to tender the lease to B.; and upon his refusal to execute, A., after a written notice demanding possession, should bring an ejectment. The seven guineas however could not be recovered under the Ejectment. An action of breach of covenant, (or if agreement not under seal, an action of assumpsit, or on the case) should be brought against B. for this purpose, as well as to recover damages for the breach of the agreement, which A. would be entitled to. TITLE. TRUST. N. G. This was an action for assault and battery. In the declaration it was stated, that the defendant having wrenched a stick from the plaintiff's hands, "therewith, and with his hands and fists, gave and struck the said plaintiff many violent blows and strokes, and shook and pulled about the said plaintiff. The defendant pleaded, first, the general issue; and secondly, as to the assaulting the plaintiff with the said stick, and with defendant's hands and fists giving and striking the plaintiff many blows, as in the declaration Law of Property and Conveyancing. mentioned, and as to the shaking and pulling about the said plaintiff, son assault demesne." VOL. 10. P. 463. The cause was tried, and the plaintiff's case The estate tail male of C. D.'s eldest son, having been concluded, the defendant produced with the consent of the tenant for life as prosome witnesses, who proved that he did not tector of the settlement, I should imagine, could wrench the stick from the plaintiff's hands, be barred, and the purchaser, with the concurand that the plaintiff was the first aggressor. rence of the tenant for life, might depend upon It was then submitted, that even on this evi- a conveyance according to the directions of 3 dence, the plaintiff was entitled to damages for and 4 W. 4, c. 74. It is very clear the tethe assault with the stick, which was not jus- nant in tail's estate is vested in him, and which tified. On this the jury was desired to assess the he might have barred before the recent act damages; but the Court directed that a motion by recovery, and the substitute for that assushould be made for leave to enter the verdict, rance would be equally safe; therefore, with on the plea of the general issue, provided the the concurrence of the tenant for life as proCourt were not of opinion that the assault al-tector, the tenant in tail can make a good title leged was included in the special plea. in fee to the purchaser. An application to this effect was now made, when it was contended, that the battery was clearly proved by the plaintiff's, and not denied by the defendant's witnesses, and that besides it was not included within the special plea, which referred only to the assaulting with the stick, which was not a battery. Nothing, it was submitted, could be imagined in favour of the plea, which must be taken as it really stood, and no word, nor even a stop, could be supposed to exist when it did not. If any doubt arose as to the plea, the plaintiff was entitled to the benefit of that doubt; for it was laid down, that every plea should be taken most strongly against the pleader. The Court said, that if any uncertainty arose in the meaning of the plea, the defendant might have demurred specially. It was evidently a mere clerical error in the omission of the word 'and," or a comma after the word plaintiff. That was clearly the construction intended by the defendant. Rule refused.-Blunt v. Beaumont, T. T. 1835. Excheq. BEQUEST For life. P. 32. ERO. It has long been settled, that where there is a bequest to A. with remainder to B., on a particular event taking place, the interests of both parties vest, sub modo, at the same time so that if the second legatee die before the happening of the event, and it take effect after his decease, his representatives will take his interest. Pinbury v. Elkin, 1 P. Wms. 563. And in the case of Barnes v. Allen, 1 Bro. C. C. 181, the testator devised the residue of his personal estate to his wife for life, and if she should die without issue living at her decease, to his two brothers; or if one should die, to the survivor. They both died in the wife's lifetime; and Lord Thurlow decided that the legacy was vested in both as joint tenants, and therefore went by survivorship to the representative of the brother last deceased. C. G. will perceive that the case he puts is precisely similar to this; and consequently the property, after the decease of B. and C., will pass to the representative of that brother who survived the other. GRADUS. 104 Answers to Queries.-Queries.-The Editor's Letter Box. words: "I bequeath unto B. and C., my executors, the sum of twenty pounds each." The testator's property consisted of a reversionary interest in 5,0007., payable on the death of an aunt, who received the interest of that sum for life. The testator died before the fund fell in, leaving both his executors surviving. One, however, died before the reversionary fund fell in; the other lived till after that event, but died without proving the will of his testator. Neither of the executors was related to the testator, nor even intimate friends. Are the executors, or rather their representatives, entitled to the legacies-they both having died without proving the will? Do not the words "B. and C., my executors," mean in their character of executors, and therefore, that neither having acted in that capacity, they are not entitled to their legacies? TYRO. 1. There appears scarcely a doubt, that the affirmative of C. G's. question would be correct, for H. R.'s intention, even judging from the mode in which his will is attested, evidently was, and the legal import of the words used for the purpose would certainly be, at least to pass all the testator's freehold estates, (including this of which he is stated to have been seised in fee,) see Doe. dem. Wall v. Langlands, 14 East, 370. But probably C. G. meant his question to extend further, and to ascertain, as there are no words of limitation or inheritance annexed to the devise, what inter-able in Scotland, Ireland, Isles of Man, Guern Practice. RECOVERING DEBTS IN SCOTLAND, &c. Z. est N. P. would take under it, in this fee sey, Jersey, Alderney and Sark, (which are not simple estate; and this doubt seems capable deemed beyond the seas by the statute of 3 & of being speedily resolved, for assuredly the 4 W. 4. c. 42, s. 7)? and what mode of p: oceedtestator's fee simple interest in the estate was ing must be adopted against any person residas much freehold property which he was "pos-ing in any of the islands to recover the debt? sessed of at his decease" as the estate, i. e. the land itself. See Roe. d. Shell v. Pattison, 16 East, 221; Patton v. Randall, 1 J. & W. 189; Wylce v. Wylce, 7 Bing, 664; and therefore it seems that the estate in question does pass under the devise, and in fee to N. P. C. 2. When there is an evident intention on the part of the devisor to pass his entire interest in the property, the Courts will usually dispense with the technical words. Thus, the simple devise of “ all a person's right, title, and interest in a house" has deen deemed sufficient to pass the fee; Cole v. Rawlinson, 3 Bro. Parl. Ca. 7; and so in Nichol v. Butcher, 18 Ves. 193, the phrase "I do will and bequeath all my real and personal property," was held to have the same effect; and in another case, the expression" all he is worth," carried with it the fee. It will be seen that the words of devise included in the question, are equally forceable: on the one hand" all my real and personal property," and "all I am worth;" on the other, "the property, whether freehold or otherwise, I may be possessed of at my decease." If the Court held the former words sufficient for the purposes of the devise, it would, we should think, be impossible to set aside the latter. A. R. QUERIES. Law of Property and Conveyancing. LEGACIES TO EXECUTORS. A. by his will appointed B. and C. his executors, and left to each a legacy in these THE EDITOR'S LETTER BOX. The second edition of The English Bar and Law Student's Guide comprises a Table of Precedence of the Bar, according to the latest authorities, with Lists of the present King's Counsel and Serjeants, and of the Barristers called in 1835, including those of last Michaelmas Term, with the exact dates of call. Price 28. "A Subscriber" is referred to Mr. Theobald's edition of Sir Wm. Jones's Law of Bailment, of which a review appeared, 7 L. O. p. 117. The Queries and Answers of " Spes;" H. D.; P. P. C.; and C., have been received. We refer " Democritus" to our Fourth Volume, p. 25. Comparisons are odious." We give our opinion candidly of each Work, and must leave our Brethren to select which will best suit their object. We thank a Correspondent at Huddersfield for his Communication, and will make use of it. The Letter of W. B. J. shall appear. We agree with our Correspondent, that the compilers of Almanacs should make each day à Remembrancer of what is necessary to be done, instead of a Chronicle of by-gone events, which are useless to the man of business. We think that in the Legal Almanac, this is not only "reformed indifferently, but altogether." The Second Part of the Commentaries on the Statutes of the last Session is nearly ready, and with the Corporation Act already published, will complete the Work. The Legal Observer. SATURDAY, DECEMBER 19, 1835. "Quod magis ad NOS HORAT. THE APPEAL JURISDICTION OF Ar a time when the public attention is so loudly appealed to as to the political merits and demerits of the House of Lords (with which we have nothing to do), it appears to us a fitting opportunity to turn again to a subject which we have already repeatedly brought under the notice of our readers, and to which we shall not cease to refer until the grievances connected with it be remedied. Be the benefits or defects of the House of Lords in other respects what they may, there is one portion of its present constitution admitted by almost all to be faulty, if not absurd; and it becomes the bounden duty of all, but more especially of those who would preserve the other parts of the House as they are, to see to its remedy; for no political maxim is truer than that, if one notorious evil in a system be left uncured, it affords the best opportunity for those who would abolish the whole to effect their purpose. The grievance to which we allude is the present apparatus for hearing appeals to the House of Lords; and at present we can only briefly state the existing arrangement, and glance at the remedy; but we promise our readers to return to the subject more at length at a future time. We are borne out by a long series of debates and resolutions in saying, that the state of the Appeals to the House of Lords has been the subject of constant complaint for nearly a century. Various expedients have from time to time been resorted to for the remedy of these grievances; but we may judge of their effect when we mention the plan which was last adopted, and which is still resorted to, viz. the notable expedient of summoning three peers by rotation for each day of appeals during the session. We shall cite the resolution to which we allude, and we shall notice only one speech made VOL. XI. NO. 307. on its introduction, to shew that its evils were then pointed out, if not so cleverly as by other speakers and writers, yet sufficiently for the purpose. In 1823, the House of Lords, in pursuance (among other things) of the recommendations of a Select Committee appointed to consider the subject of the arrears in Chancery, resolved,a that three Lords be required to attend upon each of the days for hearing appeals and writs of error. The names of these Lords are determined on by ballot, and their attendance is enforced by a penalty of 50l., to be paid on failure. On the debate of these resolutions, their adoption was (among others) thus opposed by the Earl of Carnarvon: "It would (he said) be derogating from their Lordships' dignity, and be attended with inconvenience to the suitors. Three peers were to sit on one day, and be succeeded by He would supthree others on the next. pose an appeal commenced on Monday: a part of it would be heard by the three peers who sat on that day. The next day three others of their Lordships would have to hear its continuation, who had not heard a word of the opening. Three others would have to hear another part of the case on the ensuing day; and the three peers who might have to decide after the whole had been gone through, would have to give judgment on, perhaps, a most important matter, of which they had heard only the concluding part." Yet we find, that in spite of this objection, so urged, and repeatedly reiterated since, this plan of disposing of the appeals has endured to the present time. And what We will venture to is the consequence? say that there is no portion of the judicial business of this country dispatched in a a See these resolutions fully given, with the subsequent debate, in Cooper's" Proceedings in Parliament," &c. 1828. I |