In Lawton v. Salmon, the question related to certain salt-pans and other saltworks, by which a salt-spring was made In Storer v. Hunter,P which was an ac- | Cave v. Cave, it was decided, that not tion by the assignees of a bankrupt tenant only wainscot, but pictures and glasses put of a colliery against his landlord, who had up in the place of wainscot, should go to recovered possession of the colliery, with the heir, to prevent the house from being the fixtures and implements therein, a day disfigured. after the act of bankruptcy, the assignees were held not entitled to recover either for the movables or the fixtures. In this case it was unnecessary to advert to the distinc-productive and valuable. Lord Mansfield tion established by Horn v. Baker, between said, The salt-spring is a valuable inhegoods and chattels; because the evidence ritance, but no profit arises from it, unless proved that the tenant's possession of the there be a salt-work, which consists of a colliery did not, in the part of the country building, &c. for the purpose of containing where the question arose, make the tenant the pans, &c. which are fixed to the ground. reputed owner, either of the moveables or The inheritance cannot be enjoyed without fixtures.9 them. They are accessories necessary to the enjoyment of the freehold. The owner erected them for the benefit of the inhe It remains to advert to the right as between the heir and executors, and executors of tenant for life and the remainder-ritance." Upon this principle, therefore, man or reversioner. As between the heir and executor, the rule obtains with the utmost rigour in favour of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel any thing which has been affixed thereto. In P 3 B. & C. 368. Abbott, C. J., after shewing that the bankrupt had not the absolute ownership, said, "If then the bankrupt never had an absolute ownership, but only a qualified right to the use of the articles during the term, what is there to shew that he ever had any reputed ownership? In Horn v. Baker, it did not appear to have been the usage to demise the vats and other utensils which necessarily belong to a distillery; but here it appears by the evidence, that in some instances the articles used in collieries belong to the tenants, and in others they do not: that though in some cases the landlord in demising collieries permits the lessee, on certain conditions, to have the use of the fixtures and other things during the demise, yet in other instances they belong absolutely to the lessee. Then, if the possession of such things is consistent with the fact of a person being absolute owner, and also of his not being absolute owner, the mere possession of such things ought not to raise an inference in the mind of any cautious person acquainted with the usage, that the person in possession is the owner. If it had not been the usage the owners of collieries ever to demise the machinery and other things used in the colliery, then possession by the lessee would be evidence of reputed ownership; but there being such an usage, the mere possession of such things is not evidence of reputed ownership; and no evidence having been adduced to shew that the bankrupt ever had the absolute ownership in the articles used in these collieries, I am of opinion that the jury ought, upon these facts, to have given a verdict for the defendant." for they were held to belong to the heir, as parcel of the inheritance, and as having been intended to benefit the inheritance. On the other hand, where tenant for life of a colliery erected a fire engine to work a colliery, Lord Hardwicke, thinking the working of a colliery not merely an enjoyment of the estate quà land, but in part a carrying on a trade, which is a personal matter, held, in two cases, that the fire engine erected by tenant for life belongs to the executors." One reason," said his Lordship, that weighs with me, is its being a mixed case, between enjoying the profits of the lands, and carrying on a species of trade; and considering it in this light, it comes very near the instances in brewhouses, &c. of furnaces and coppers." Upon which principle, also, Lord Chief Baron Comyns may be considered as having decided that a cyder-mill went to the executors and not to the heir. The principle established by these cases seems to be this : that fixtures mainly erected for the purpose of carrying on a trade, go not to the heir, but to the executor, because the trade being personal, they, as accessory to the trade, are also regarded as personal; but that whatever enhances the enjoyment of the realty, quà realty, cannot be disannexed, but will go with the inheritance. And it may be added, that what will with the go inheritance cannot be taken in execution; but what would go to the executor may, whether the question is against the tenant for life, reversioner, or remainder-man. r 2 Vern. 508. s 1 H. Bl. 259, in notis. t Lawton v. Lawton, 3 Atk. 13; and Lord Dudley v. Lord Ward, Ambl. 113. 222 Disputed Decisions. DISPUTED DECISIONS. CA. SA. RETURNABLE IMMEDIATELY.-BAIL. To the Editor of the Legal Observer. contend that if C. J. Tindal had power to make the order, the bail were nevertheless not fixed. The answer of Bompas, Serjeant, to this was equally plain and intelligible, for he said that a ca. sa. returnable immediately after execution, was an order of a Court to its servant the sheriff, and that Court of its own 15, had in term time (and under 2 W. 4, c. 39, s. 15, a Judge in vacation had) power to order its servant the sheriff to tell them what he had done in obedience to their direction. Besides, to hold otherwise would be a virtual repeal of the 3 & 4 W. 4, c. 67, s. 2; for if the sheriff could not be called upon to return such a writ until he had executed it, he might, on receiving it, put it into his pocket, and refuse to execute it at all; in which case no action could be maintained against him for not taking the defendant when he had an opportunity, as may be seen by the form of the count in such a case. The Court took time to consider, and on the first day of the present term gave judgment. They said, they inclined to think that C. J. Tindal had power to make the order, so as to call upon the sheriff to say what he had done with the writ; but they thought, not so as to make the writ returnable to fix bail; but that if the order had that effect, they thought notice of it ought to have been given to the bail. But if notice to the bail was unnecessary, then (and now comes the actual decision) the order ought to have been lodged with the writ in the Sheriff's Office four days, and entered in the sheriff's public book. They then, after recommending plaintiffs who are desirous of fixing bail to pursue the old course, and make the ca. sa. returnable on a day certain in term, discharged Kemp's rule, with costs. Allow me to call your attention to the de-authority, or by virtue of the 2 W. 4, c. 39, s. cision of the Court of Exchequer in a case of Kemp v. Hyslop and another, which is of some importance to the profession, and in which judgment was given on the first day of the present term. The case was this: Kemp arrested one Jones for rent; Hyslop and another became Jones's bail; Jones pleaded in person to the action, which was tried as undefended at the last Croydon assizes, and Mr. Justice Park certified that execution ought to issue on the 14th August. (1 W. 4, c. 7, § 2.) Immediately after the trial, Jones quitted his house and carried off his goods, and Kemp could not succeed in tracing him. Kemp signed judgment on the 14th of August, and on the same day sued out a ca. sa. against Jones, returnable immediately after execution thereof, and tested on that day pursuant to 3 & 4 W. 4, c. 67, § 2, and lodged it with the sheriff of Surrey, and entered it in his public book. On the 12th of September, C. J. Tindal, on an affidavit of the facts, and that Kemp was "desirous of proceeding against the bail to compel them either to render their principal, or pay the money," made an order on the sheriff of Surrey to return the ca. sa. within six days next after notice of the order. (See 2 W. 4, c. 39, § 15.) The order was served on the sheriff on the 14th of September, and he on the same day returned the writ non est inventus, and filed it. Kemp then sued the bail (Hyslop and another) in default, on their recognizance. Hyslop and another were served Now this is the decision which I dispute; with writs on the 17th September. On the but before I proceed to shew why, I would 19th they took out a summons to set aside just advert to the fact, that upon the only point the proceedings against them for irregularity. made by the bail on shewing cause, the Court That summons was heard by Mr. Justice are with Kemp; and that the other three points, Bosanquet, on the 1st of October, on which including that upon which the Court actually occasion the attorney for the bail contended, decided, have been raised by the Court since that they could not be fixed on a ca. sa. re-it took time to consider. I cannot help thinkturnable immediately; and Mr. Justice Bosanquet intimated that they could not be fixed on a speedy judgment, but took time to consider. On the 2d of October, in the absence of both attorneys, he set aside the proceedings, it is presumed, on one or other of these two grounds. On the first day of Michaelmas Term, Kemp obtained a rule nisi to set aside Mr. Justice Bosanquet's order. Cause was shewn by Busby in the course of the term, and he contended, that a ca. sa. returnable imme- As to the ground upon which the Court acdiately after execution thereof, was not return-tually discharged the rule, viz., that Kemp had able until it was executed. That a ca. sa. not lodged the order to return the writ four could not lawfully be returned before it was days with the writ with the sheriff, it would returnable, either by virtue of a Judge's order, seem, though the Court do not say so, that or in any other way; that the order of C. J. they considered that a ca. sa. returnable immeTindal was a nullity; and that bail had, as of diately after execution, is minus a return day, right, until the lawful return of the ca. sa., to but that such a ca. sa., plus a Judge's order to render their principal. Mr. Busby contented return it, is equal to a ca. sa. returnable on a day himself with shewing this very plain and in- certain in term, and that therefore the Judge's telligible cause, and did not for a moment order to return the ca. sa., ought to have been ing that the Court ought to have stated its points, and had the case re-argued. If they had done so, even though they might have dismissed the rule, they never could have done it upon the ground they have taken. I presume the arguments of counsel are of some use to the Court, otherwise why put the suitors to the expense of employing them? Why not always take home the papers and decide upon them only? lodged the four days with the sheriff. Now is if he pleases), which he does by suing out the it not strange to make the regularity of a plain-ca. sa." The Court then go on to say, that a tiff's proceedings depend upon how soon or render at the return of the ca. sa. may be how late a sheriff may think fit to obey the pleaded, and that as a plaintiff might sue out a order of the Court to return the writ? If it ca. sa. returnable the next day, and the bail be not, still, though in the present case Kemp therefore have no time to render the defendmight have done what the Court say he ought ant, the Courts have, as a matter of favour, but to have done (the venue being in Surrey, and not of right, allowed them to render him for a the order to return the ca. sa. being therefore certain time after the return of the ca. sa. 1s a six day order), yet, if the venue had been it not apparent from this then, that the object either in London or Middlesex (in which cases of suing out the ca. sa. was, not to tell the bail the order to return the writ is a four day order), the very last day they had of right for renderit would have been utterly impossible for him ing the defendant, but to tell the Court that to have done what they say he ought to have the plaintiff meant to hold the bail to their done, and for this reason: The sheriff would engagement? have been bound to return the writ within four days next after service of the order, whereas the four days during which the ca. sa. (and consequently the order), must be lodged with the sheriff, are four days, exclusive both of the day of lodging and of the return day. Furnell v. Smith and another, 7 Barn. & Cres. 693. So that if the sheriff were served with the order on the 1st, he must return the writ on the 5th, (being the fourth day next after the 1st), or be guilty of a contempt; and, if the 6th should be the first day of term, liable to an attachment; but if he did return the writ on the 5th, in order to avoid an attachment, the order would not have been lodged with him four days exclusive; and therefore, according to this decision, the plaintiff's proceedings would be irregular. Surely the Court did not mean to decide that a plaintiff must do that which is impossible. Then as to the second point, viz., that notice of the order ought to have been given to the bail; the Court do not say what notice. If they meant four days' notice exclusive, I have already shewn that to be impossible in London and Middlesex. If they meant such notice as the plaintiff should think fit, why, of course, the plaintiff, if he meant to fix the bail, and not to have the body of the defendant, would give notice at nine o'clock the night before the return that is, fourteen hours' notice, which certainly would not be of much use to the bail. In making both these points, the Court seem to have thought that the law required that the bail should have the means of knowing by notice or search what was the last day for rendering the defendant, and that the ca. sa. was lodged with the sheriff four days exclusive for that purpose. 1 shall, in considering the point as to the effect of the order of C. J. Tindal, endeavour to shew, that in this they are mistaken. In Wilmore v. Clerk and another, (cited, together with several other cases, in Tidd's Practice, 5th edit. vol. 2, p. 1128, n. e), it is said, "The condition of the recognizance is, that if the defendant be condemned in the action, he shall pay the condemnation, or render his body to prison. The question then will be, at what time this render ought to be; and the law says it ought to be when the plaintiff in the original action has signified that he will sue execution against the body, (for he may sue execution against the goods and lands by elegit or fi. fu., However, after the decision in Wilmore v. Clerk and another, the Court of King's Bench made a rule (R. E. T. 5 G. 2), and the other Courts also, about the same time, that the ca. sa. should be lodged four days in the Sheriff's Office. It is clear that the object of that rule was only that the bail might be able to inform themselves by search that the plaintiff meant to proceed against the defendant's body, and not that they might be able, from knowing the return day, to keep the defendant out of custody until then. In Hunt v. Coxe, 3 Burr. 1360, it is said, "The Court considered the ca. sa. against the principal as little more than a matter of form, and chiefly intended to intimate to the bail in what species of execution the plaintiff intended to proceed; and as the leaving it in the Sheriff's Office was a notice to the bail that the plaintiff would proceed against the person of the defendant, it was incumbent upon the bail to search whether any ca. sa. was left in the office." The rule received an express construction in Howard v. Smith, 1 Barn. & Ald. 528, where Lord Ellenborough says, "The object of the rule is, that the bail should have four days allowed them to search the office, that they may know whether it be necessary to render their principal or not." Bayley and Abbott, J., deliver the same opinion. Now if all that is necessary be that the plaintiff "should signify that he will sue execution against the body of the defendant," and that the bail should have the opportunity of knowing "whether it be necessary to render their principal or not," those requisites may be attained just as well by lodging with the sheriff a ca. sa. returnable immediately, as one returnable on a day certain in term. It will be recollected, that the ca. sa. in this case was lodged with the sheriff, and entered in his public book, from the 14th of August to the 14th of September. In delivering the judgment in this case, the Court adverted to the fact, that the four days during which the writ must be lodged with the sheriff, must be the last four days before the return; and said, that where the ca. sa. was returnable on a day certain in term, all the bail had to do was to search during the term, and for four days before it, and that it would be very hard to make them search de die in diem in the vacation. But the reason why the ca. sa. must be lodged with the sheriff the last four days before the return is, that he has no right actually to make 224 Grievances of the Profession.-Selections from Correspondence. his return before he professes to do so, and that having oncé had possession of the writ, he has no right to part with it until the running of it is put a stop to; for until the return day of the writ, where it is returnable on a day certain (and now, until the actual return, pursuant to rule or order, where it is returnable immediately after execution), the sheriff is bound to take the defendant if he can, which of course he cannot do if he parts with the writ. It is the same with a sci. fa., as may be seen from the cases reported upon this point. As to the hardship upon the bail, it is said that hard cases make bad law;" but where is the hardship of compelling a man to perform his engagement? Besides, the bail can get rid of their liability at any time by rendering the defendant, and they are not bound to wait till judgment signed against him. Again, they have, as a matter of favour, fourteen days after service of the writ upon them, to render the defendant; Gen. R. T. Vac. 3 W. 4. (a fact not adverted to by the Court in giving judgment); so that they have a fortnight's actual notice to render the defendant before they can possibly be fixed: where, then, is the great hardship upon them? J. C. SELECTIONS FROM CORRESPONDENCE. PRACTICE AT THE JUDGES' CHAMBERS.- To the Editor of the Legal Observer. I beg, through the medium of your journal, to call the attention of the profession to a new practice which has lately sprung up at the Judges' Chambers, namely, by allowing defendants orders for time for payment of debt and costs within a certain period, or that in default thereof the plaintiff may be at liberty to sign final judgment. Although this practice is another inroad upon the already reduced fees of the practitioner, yet my principal object is to consider whether this practice, by destroying the effect of the statute passed for preventing frauds on creditors, by secret warrants of attorney and cognovits, does not open a field for the exercise of those frauds, which it was the object of the legislature to prevent; and if so, whether the matter should not be respectfully represented to the Judges. AN OLD PRACTITIONER. GRIEVANCES OF THE PROFESSION. FEES AT THE COLLEGE OF ARMS. Sir, In the Legal Observer of the 9th of January, in the report of Mr. Grimaldi's Lecture on ATTENDANCE AT UNDER-SHERIFFS' OFFICES. Pedigrees, it is stated, in reference to the Sir, searches are most reasonable." Can you or any of your readers oblige me with a scale of their charges? I have for some time past been desirous of making a search, but have hitherto been deterred, supposing it to be very ex DURATION OF WRIT OF EXECUTION. Sir, H. Manuscripts in the College of Arms, that On Monday night last, at 10 minutes past" they are of easy access, and the fees for six o'clock, I went with a writ of capias to the office of the agents to the under-sheriff of a northern county, for a warrant. I found the office open in point of fact, but was very gravely assured by two clerks in attendance, that the office was closed, that the official gentle-pensive. man was gone, and that I could not have a warrant unless I paid half-a-crown for it, in addition to the usual charge of six shillings. Now,Sir, I am a small attorney, minding my own business, and not a great house having a multitude of clerks. When I go to the office to issue a writ, I am obliged to shut up my shop bona fide. 1 need hardly tell you that I should have paid the half-crown demanded, rather than go again the next day, even if I had not had instructions from my client in the country, to send the warrant off by that night's post. At the same time, I cannot help thinking, that the extracting of the half-crown out of my pocket was an imposition; and that undersheriffs' agents ought to be compelled to keep their offices open during the hours in which the public offices for issuing writs are open J. C. Although it appears from the Report of your Correspondent, of the case of Chandler, Clk. v. Broughton, Esq., (stated in a recent Number of your valuable work), that the learned Baron dismissed the defendant's summons, on the ground that the continuance might be entered at any time;-it does not appear what became of the second objection, namely, that the Alias Writ of Execution, though returnable immediately after execution, could not be in force for more than a twelvemonth and day; and as it is a question which involves so much doubt, and is of almost daily occurrence, I shall be glad to learn from the above or any other correspondent, what the practice is upon that point. ENQUIRER. Selections-Striking out Counts. PROPERTY LIABLE TO LEGACY DUTY. Sir, In the report at page 181, of the case of Logan v. Fairlie, on the subject of Legacy Duty, it is stated that the Vice Chancellor decided that the legacy duty did not attach, and that it was an appeal from his Honor's decision; and the question was, whether the legacies should be considered as appropriated in India, or remaining unappropriated until paid over by the agents of the executors in this country, when a suit had been instituted against the executors. On referring to the case of Logan v. Fairlie, in Simon & Stuart, it will be found that the Vice Chancellor held that the duty was payable upon the residuary legacy, about which the point was raised; although he said in his judgment, "If a testator die in India, and his personal estate be wholly in India, and his executor be resident there, and the will be proved there, and the executor remit to a legatee in England, and some other person in England, for the specific use of the legatee, the amount of his legacy, I am of opinion that the legacy duty is not pay able upon such remittance, inasmuch as the whole estate is administered in India, and the remittance is in respect of a demand which is to be considered as established there." It would appear from the report of the judgment of Sir C. Pepys, that he considered the legacy duty not to attach, and in that case the Vice Chancellor's order must have been reversed, and not affirmed, as you state. STRIKING OUT COUNTS. R. C. 225 title him to retain the counts in the declaration. It has been decided in a variety of cases, that the circumstance of the various causes of action alleged in the declaration, arising out of the same transaction, does not in any way interfere with the plaintiff's right to retain the counts in his declaration. The difficulty then, which the Courts seem to have found, has been what has amounted to merely a variation in the statement, description, or circumstances of the principal matter of complaint. In the case of Lawrence v. Stephens,a a decision was pronounced by the full Court of Exchequer, which has been since overruled by the same Court. The case of Lawrence v. Stephens was an action for tithes, and the plaintiff in his declaration introduced two counts, one for the treble value of tithes not set out, and the other for the same tithes bargained and sold. An application was made to a Judge at chambers in that case, to strike out one of these two counts, but the learned Judge refused to interfere. The defendant then applied to the full Court. The particulars of the plaintiff's demand only stated that he claimed the value of certain tithes from the defendant. On argument in opposition to the application, it was admitted that the plaintiff had not two separate causes of action, but that as he anticipated the defendant would set up a composition for tithes, the plaintiff had thought it right to introduce the two counts in question, so as to meet any defence which the defendant might set up by his plea. If there was no composition he was entitled to recover on the first count; if there was, he could only recover on the second. At first the opinion of the Court in that case was, that the claims were substantially different, and therefore that the plaintiff was entitled to retain both counts; and Mr. Baron Alderson observed, unless in apparent violation of the late Rule; counts on a bill of exchange and for the consideration, are for the same subject matter, and yet both may be inserted." The Court, however, ultimately ordered the the last count to be struck out, either on the defendant's undertaking not to set up a composition at the trial, or that if he did, that the count might be amended at the trial; and furthermore, on the authority of Mackinder v. Mackinder, before Mr. Baron a count is not to be struck out AMONG the new Pleading Rules, none perhaps has given rise to more difficulty, and consequently more discussion, than the fifth general one, by which it is ordered, "that several counts shall not be allowed, unless a distinct subject matter of complaint is intended to be established in respect of each." It must of course be a matter of discretion in many cases, whether the Court will interfere to do certain acts with power to do which it is invested; but in the present instance it would appear that the language of the Rule was sufficiently clear to prevent discordant decisions on the part of Judges of the same or different Courts. All that is to be decided is, whether different causes of action are stated in the various counts of the declaration. The Court is not called upon to decide on an application to strike out the counts, whether the cause of action alleged will be sustain-Alderson, at chambers; Lacey v. Umbers, able in point of law. It is sufficient, we before Mr. Baron Gurney, also at chambers, apprehend, if the plaintiff states an actually different supposed cause of action, to en a 3 Dowl. Prac. Cas. 777. |