322 Selections from Correspondence. OUTSTANDING TERM.-DOWER.-HEIR. Sir, In 1807, A. purchases a freehold, conveyed by lease and release. An attendant term is assigned to a trustee on behalf of A., to attend the inheritance. "A.," by his will, devises to his sons B. and C. in common in fee. They both die intestate, and the fee descends to their respective heirs, D. and E.-D.'s mother, (the widow of B.) is living, and is now selling his moiety. The term being still in existence, and vested in the representatives of the original trustee, is proposed to be assigned to a trustee for the purchaser of D.'s moiety. Is this attendant term a sufficient bar to dower, of which D. as heir to his father B., or his vendee, can avail himself? That question arose upon the title. A learned counsel's opinion is taken upon the point; and the facts as above stated having been laid before him, his opinion expressed is, that an attendant term will avail the heir against the widow, and will be a sufficient bar to dower; and his opinion implied (by his settling the conveyance) that the term in this case is a safeguard to the title of the heir. Upon the faith of this opinion the purchase is about being completed. |cisions above referred to? simply a hint to heirs at law similarly situated, to sell their inheritance and defraud the widow. I would not have troubled you, had it not been that a part of the purchase money is about to be invested in a concern which has a claim and right of dower attaching to it. Were I concerned for the purchaser, I most assuredly would (though perhaps presumptuously) act upon my own view of this case. W. B. J. COSTS. PARTICULARS.—ATTORNEY'S BILL. for the delivery of further and better particulars, which was attended before Mr. Baron Alderson. It was an action brought for the recovery of an attorney's bill, which was delivered before the commencement of action; and with the notice of declaration there was also delivered a particular according to the rule of Court, when the same cannot be comprised within three folios. Although all the forms of the rule had been complied with, the Judge ordered a particular to be delivered on Is that opinion of the learned counsel cor- paying for the copy only, thereby depriving rect, or has Mr. Cruise mistaken the law? Sir the plaintiff (as is usual in practice) of the William Grant is reported to have said, in the other costs, such as attending the summons case of Maundrell v. Maundrell, reported 7 for delivery, drawing particulars, &c. ThinkVes. 567: "But Equity regarded the purpose ing this rather hard and unusual practice, a for which the term was created and subsisted" summons was taken out to rescind the order (the term in the case I mention, was not a term of Mr. Baron Alderson, which was attended in gross, but created in the first instance, and before Mr. Baron Parke; but the latter Judge subsisting simply as attendant upon the inhe-discharged the same with costs. Under these ritance) and if it was only for the benefit of the owner of the inheritance, it was considered as part of the inheritance; not absolutely merged, but so attendant upon as to follow and accompany it, and every right and interest growing out of it either by operation of law, or by voluntary agreement of the parties. * pro Therefore, when dower arose, the term in portion was just as much attendant upon the interest growing out of the inheritance, as before it was attendant upon the inheritance during the husband's life. The heir, therefore, though he could avail himself of the term at law, was not allowed in equity to defeat the widow's claim to dower." It will be observed, that I do not quote Muundrell's case as a decided authority; the term in that case not having been assigned, and in that respect differing from the one mentioned by me. In addition to the dictum of Sir W. Grant, I refer your readers to the case of Wray v. Williams, reported Precedents in Chancery, 151; and Lord Hardwicke's confirmation of the doctrine in that decision, vide Swannock v. Lifford, 1 Inst. 208 a. n. To me it appears that a Court of Equity would set the term aside for the widow, as against the heir; and why not the purchaser with notice of the right existing (if it is so) who buys of the heir? If a purchaser is protected by such a term being assigned to a trustee on his behalf, what is the effect of the de decisions we may now therefore obtain delivery of particulars upon payment for the copy only, and it will consequently be better for all attorneys at once to deliver a full particular; for certainly the above decisions do away in part with the rule as to the delivery of particulars. Berridge v. Priestly, 1st Febru1836. ary, Sir, PALACE COURT. I beg to call your attention to a monoply be suffered to exist: I allude to the Palace which I think in this reforming age should not the attorneys and officers of that Court, is Court. The objectionable conduct of some of too well known to require any lengthened observation. I suppose they think their immunities will protect them in any practice which they may think it their interest to pursue; but fluence which you possess, be brought to the I trust that the subject will, through the innotice of those whose duty it is to correct abuses in the law, in order to remedy the defects which at present exist in that Court. REFORMATOR.. Selections from Correspondence.—Superior Courts: King's Bench Practice Court. 323 CONSTRUCTION OF THE GAME ACT. I shall be obliged if your Correspondent, "One of the Convicted," in your number of 6th of February, 1836, p. 253, will be kind enough to advise me how the oppressive law he alludes to is to be met. I have a case connected with the points, and have given notice of an appeal. If your Correspondent will be kind enough to address me direct on the receipt hereof, with the advice he kindly offers, I will in return give him the facts, the arguinents, and the results of the appeal. I had perhaps better add; first, I was summoned in writing; secondly, I was not offending the tenant. The proprietor and occupier are the same person-he resides in London; thirdly, I knew of no reservation; fourthly, I was informed against by a common informer, calling himself the under game keeper of the proprietor, but not on outh, but supported by a credible witness. I was not allowed to see the powers granted by the deputation. Half the penalty was directed to go to the informer. Copies of the proceedings were refused. I had not the leave or licence of the tenant. The proprietor in the information is called A. Z., whereas his name is A. O. Z. The favor of your Correspondent's reply by letter, will be esteemed a favor, with as little delay as may be consonant with his convenience. SUPERIOR COURTS. S. King's Bench Practice Court. LEGE. SPECIAL ENACTMENT. Attorneys plaintiff's have the privilege of suing in the Courts at Westminster for amounts less than 40s., notwithstanding the Uniformity of Process Act, unless it is specially enacted in the Court of Requests Acts, that that privilege is taken from them. A rule nisi had been obtained for entering judgment for the defendant, and giving him treble costs, according to the provisions of the Blackheath Court of Requests Act, against which cause was now shewn. It appeared that the plaintiff in the action was an attorney, but had sued with the ordinary writ of summons in this Court, and had recovered less than 40s., the cause of action having arisen within the jurisdiction of the act alluded to. It was now contended, that the plaintiff, being an attorney, had a right to sue in the Courts at Westminster, unless that privilege was taken away by the act. By the 28th section of the 5 Geo. 3, c. 8, one of the acts regulating the Blackheath Court of Requests Act, although the privilege was taken away from attorney defendants, yet it still remained to attorney, plaintiffs. In this case, it was true, the plaintiff had sued with an ordinary writ of summons, but the attachment of privilege by which the attorney had proceeded before the passing of the Uniformity of Process Act, was abolished by the provisions of that statute, although, it was submitted, the privilege itself still remained. It was therefore contended that the rule ought to be discharged. In support of the rule, it was urged that, according to the act of Parliament, the rule The section of the should be made absolute. such action : act provided that no action for a debt_exceeding 40s., should be brought in the Courts at Westminster, against any person resident within the jurisdiction of that act; and if any were brought, the defendant might plead the general issue and if the amount sued for or recovered, did not exceed 40s. in amount, he might, on proof of his being resident within the jurisdiction of the act, ob tain judgment, and receive treble costs from the plaintiff. The words of the section were general, and must be taken to apply to attorney plaintiffs, as well as other persons, especially as the act was a subsequent enactment to that which had been before cited. It must therefore be considered, that attorney plaintiffs, as well as defendants, were included within the meaning of the act; for, whether the attorney was plaintiff or defendant, his clients would be equally prejudiced by his absence from the Superior Court. Cur. adv. vult. Littledale, J., afterwards said, that he was at first inclined to believe that the plaintiff, having sued with an ordinary writ, must be treated in the same light as any other person; but finding that the Court of Exchequer had decided in two cases, that an attorney plaintiff was not within the Court of Requests Acts, unless specially named, he thought the rule should be discharged. By the provisions of the Uniformity of Process Act, attorney plaintiffs were deprived of their old forms of writ; but they were not deprived of their privilege. By that act an attorney was compelled to adopt the common form of a writ of summons, but he did not abandon his privilege. The provision in the Court of Requests Act applied solely to attorney defendants, and did not therefore affect this case. The rule must be discharged. 1836. K. B. P. C. $324 Superior Courts: King's Bench Practice Court. If the amount indorsed on the writ exceed 201., the sheriff cannot try the cause. Cause was shewn against a rule nisi, which had been obtained for judgment as in case of a nonsuit. It appeared that the amount indorsed on the writ of summons exceeded 201.; but the real claim of the plaintiff, after allowance for deductions, did not amount to that sum. The plaintiff was anxious to try the cause before the sheriff, and to give a peremptory undertaking for that purpose. On the other hand, it was contended, that the cause could not be tried before the sheriff, as the amount claimed by the writ of summons exceeded 201., and according to the provisions of the statute, those causes alone, where the amount claimed, and indorsed on the writ of summons, did not exceed 204., were permitted to be tried. riff, and offered to indemnify him, if he would not sell. Among the goods was a bible, which contained some entries of the pedigree of a family, and which, although it would sell for a very trifling consideration, was of great value to the owner. The sheriff had declined accepting the terms proposed, and it was submitted that the Court ought to interfere and restrain him from selling, on an indemnity being given to the satisfaction of the Master. Patteson, J., said, the Court could not interfere. Rule refused. Harrison v. Forster, H. T. 1836. K. B. P. C. INSUFFICIENCY OF PLEA IN POINT OF LAW. JUDGMENT AS FOR WANT OF PLEA. Although a plea may be insufficient in point of law, the Court will not set it aside and suffer judgment to be signed as for want of a plea. Patteson, J., said, that according to the terms of the act, the cause could not be tried by the sheriff. An application might, however, be made to amend the writ, by substituting the amount claimed in the bill of particulars, for that which now appeared indorsed thereon. The usual practice was, in such cases, to allow the defendant to pay the amount claimed, together with the costs of the writ alone, if he chose, within a certain limited period. In the present case, however, the rule could only be discharged on a peremptory undertaking be-judgment in the original action, and before ing given to try at the assizes. It was then desired that the writ might be amended in the manner pointed out. Patteson, J., said, that the rule under those circumstances would be discharged, on the plaintiff's giving a peremptory undertaking to try at the Sheriff's Court, unless the defendant should, within a fortnight, pay the sum as claimed in the particulars, and the costs of the writ. The plaintiff could not be called upon to pay the costs of this rule, as it would be a sufficient penalty on him to lose his costs. if the defendant complied with the terms pointed out. Rule discharged. Frodsham v. Round, H. T. 1836. K. B. P. C. An application was made for a rule to shew cause why judgment should not be signed for the plaintiff, as for want of a plea. It appeared, that the plaintiffs sued on a sci. fu. for the recognizance of bail entered into for the appearance of a person named Sternberg, The present defendant, Jones, in answer to, the declaration, pleaded that after he became bail for Sternberg, and after the obtaining of commencement of this suit, the "said George Sternberg became bankrupt, and that the causes of action, if any, accrued to the plaintiff after the said George Sternberg so became bankrupt." A case was now cited where it had been held by the Court of Common Pleas, that if a defendant pleaded a plea containing› many facts which were likely to perplex the Court, the plea might be set aside on affidavit of its falsity, and judgment signed for the plaintiff. In the present case the plea was not authorized by the Bankrupt Act, by which such a plea was given to the bankrupt only. It was not attempted to be shewn that the principal had obtained his certificate; and even if it were, it was now distinctly sworn that he had not; and, besides, that would be matter of excuse by motion only, and not by plea. The seizure of GOODS UNDER FI. FA.-CLAIM plea therefore, it was submitted, was a nullity OF THIRD PARTY OFFER OF INDEMNITY Goods having been seized by a sheriff under a An application was made for a rule to restrain the sheriff from selling certain goods, which he had seized under a fi. fa., under the the following circumstances: It appeared that the goods were claimed by, a third party, who, on discovering that they were about to be sold, gave notice to the she in form, and the rule prayed ought to be granted. Patteson, J. said, that the circumstance of the plea containing a number of facts, which might or might not be true, was not sufficient to justify its being set aside. The Court had formerly set aside pleas under such circumstances, but they now never did so unless the defendant was under terms to plead issuably, or under some other circumstances of a peculiar nature. The plea being insufficient in point of law, was not sufficient justification for its being entirely set aside, and judgment signed as for want of a plea. Rule refused.-Cowper and others v. Jones and another, bail for George Sternberg, H. T. 1836. K. B. P. Č. Superior Courts: King's Bench Practice Court. MOTION TO SET ASIDE AWARD. - ALLEGED The Court will not set aside an award of an arbitrator, on the ground that he had been mistaken in law as to the admissibility of evidence. 325 MONEY PAID INTO COURT.-PROCEEDS OF ACTION.-WAIVER The rule for paying a sum of money into A rule had been obtained for setting aside the decision of the arbitrator in this cause, under the following circumstances. It appeared, that the present defendant had brought an action against another person for an alleg This was an application for a rule for the ed trespass in his coal mine, and in order to payment of a sum of money into the hands of secure plans of the mine, which it was neces-the execution creditor, which had been paid sary to produce at the trial of the cause, he into Court by the sheriff, as the proceeds of an employed the present plaintiff to descend the action on a rule obtained under the Intermine, and to make plans. He accordingly did pleader Act; and also for the payment of costs enter the mine, and made some plans; but by the person who had demanded the goods, was prevented completing them in consequence but who now gave up his claim. of the foul air, by which two men had been The question was, whether the rule should killed. The plans which he was enabled to be nisi, or absolute in the first instance; and it make, however, were produced before the jury, was urged that notice having been given to the and a verdict was found for the defendant. opposite party of the intention to make the The defendant in the present action, after-application, the rule absolute should be issued wards refused to pay for the plans; and proceedings having been taken, the matter was referred to an arbitrator, a barrister. On the cause coming on, the defendant called one of the special jurymen, who had sat on the former trial, for the purpose of his stating the opinion which had been formed by his brother jurymen at the trial, of the accuracy or inaccuracy of the plans. The arbitrator, however, refused to admit this evidence, and the present rule in consequence, was obtained. at once. A case was cited, where a claimant, under similar circumstances, was held liable to the costs of the motion. Patteson, J. said, that the other party had a right to be heard against the rule, which must, therefore, be nisi. The case cited, only shewed that the party making the application was entitled to his costs. Rule nisi.-Stanley v. Perry, H. T. 1836. K. B. P. C. Cause was now shewn, and it was urged, that the arbitrator was the sole judge of law and fact, and that his award could not now be JUDGMENT ON AN OLD WARRANT OF ATTOR set aside. A case was pointed out where the Court had refused to set aside the award of an arbitrator, although he was not a barrister, and although it could clearly be shewn, that his decisison was formed on a misapprehension of law. In another case also it was held, that the Court would not interfere to set aside an absolute award of a non-legal arbitrator, where it was a mixed case of law and fact. It was submitted, that if the Court would not set aside the awards of these arbitrators, who were not barristers, they surely would not set aside that of an arbitrator who was a barrister. Besides, it was contended, that the opinion of the arbitrator in the present case was a correct one. NEY. DEFENDANT SEEN ALIVE WITHIN If the fact of a defendant having been seen alive within ten days, is shewn, on the affidavits, a rule for judgment on an old warrant of attorney may be obtained. This was an application for a rule to sign judgment on an old warrant of attorney. The affidavit stated, that the defendant was seen alive within ten days; and a case was cited, where a rule had been granted on the 17th May, the defendant having been seen alive on the previous 23d April. Patteson, J. said a rule night issue. Cur, adv. vult. Patteson, J. said, that he thought the arbitrator was the proper judge both of law and fact, as to all matters presented before him. His decision therefore was final, and the Court JUDGMENT ON AN OLD WARRANT OF ATTOR would not interfere to set it aside, unless the question of law was raised on the award. The rule must therefore be discharged on that ground; but he was also of opinion, that the arbitrator had pursued a proper course in objecting to the evidence. Rule discharged,—Armstrong v. Marshall, H. T. 1836. K. B. P. C. NEY. AFFIDAVIT OF DUE EXECUTION OF The production of an office copy of the due This was a motion for leave to sign judgment on an old warrant of attorney. The only point for consideration was, whe-: ther an office copy of the affidavit of the due 324 Superior Courts: King's Bench Practice Court. If the amount indorsed on the writ exceed 201.,) riff, and offered to indemnify him, if he would the sheriff cannot try the cause. Cause was shewn against a rule nisi, which had been obtained for judgment as in case of a nonsuit. not sell. Among the goods was a bible, of a family, and which, although it would sell which contained some entries of the pedigree for a very trifling consideration, was of great value to the owner. The sheriff had declined It appeared that the amount indorsed on the accepting the terms proposed, and it was subwrit of summons exceeded 201.; but the real mitted that the Court ought to interfere and claim of the plaintiff, after allowance for de-restrain him from selling, on an indemnity beductions, did not amount to that sum. The ing given to the satisfaction of the Master. plaintiff was anxious to try the cause before the sheriff, and to give a peremptory underPatteson, J., said, the Court could not intertaking for that purpose. On the other hand, it was contended, that the cause could not be tried before the sheriff, as the amount claimed by the writ of summons exceeded 20%., and according to the provisions of the statute, those causes alone, where the amount claimed, and indorsed on the writ of summons, did not exceed 20%., were permitted to be tried. fere. 1836. K. B. P. C. INSUFFICIENCY OF PLEA IN POINT OF LAW. -JUDGMENT AS FOR WANT OF PLEA. Although a plea may be insufficient in point of law, the Court will not set it aside and suffer judgment to be signed as for want of a plea. Putteson, J., said, that according to the terms of the act, the cause could not be tried by the sheriff. An application might, however, be made to amend the writ, by substituting cause why judgment should not be signed for An application was made for a rule to shew the amount claimed in the bill of particulars, the plaintiff, as for want of a plea. It apfor that which now appeared indorsed thereon.peared, that the plaintiffs sued on a sci. fu. The usual practice was, in such cases, to allow the defendant to pay the amount claimed, together with the costs of the writ alone, if he chose, within a certain limited period. In the present case, however, the rule could only be discharged on a peremptory undertaking being given to try at the assizes. It was then desired that the writ might be amended in the manner pointed out. Patteson, J., said, that the rule under those circumstances would be discharged, on the plaintiff's giving a peremptory undertaking to try at the Sheriff's Court, unless the defendant should, within a fortnight, pay the sum as claimed in the particulars, and the costs of the writ. The plaintiff could not be called upon to pay the costs of this rule, as it would be a sufficient penalty on him to lose his costs, if the defendant complied with the terms pointed out. Rule discharged. Frodsham v. Round, H. T. 1836. K. B. P. C. SEIZURE OF GOODS UNDER FI. FA.-CLAIM OF THIRD PARTY-OFFER OF INDEMNITY TO THE SHERIFF NOT TO SELL.-INTERFE- a Goods having been seized by a sheriff under fi. fa., and claimed by a third party, and iin indemnity having been offered to him by the lutter not to sell, which he has refused, the Court will not interfere to restrain him from selling. An application was made for a rule to restrain the sheriff from selling certain goods, which he had seized under a fi. fa., under the the following circumstances: It appeared that the goods were claimed by a third party, who, on discovering that they were about to be sold, gave notice to the she for the recognizance of bail entered into for the appearance of a person named Sternberg., The present defendant, Jones, in answer to the declaration, pleaded that after he became bail for Sternberg, and after the obtaining of judgment in the original action, and before Sternberg became bankrupt, and that the commencement of this suit, the "said George after the said George Sternberg so became causes of action, if any, accrued to the plaintiff bankrupt." A case was now cited where it had been held by the Court of Common Pleas, that if a defendant pleaded a plea containing › Court, the plea might be set aside on affidavit many facts which were likely to perplex the of its falsity, and judgment signed for the plaintiff. In the present case the plea was not authorized by the Bankrupt Act, by which such a plea was given to the bankrupt only. It was not attempted to be shewn that the principal had obtained his certificate; and even if it were, it was now distinctly sworn that he had not; and, besides, that would be matter of excuse by motion only, and not by plea. The plea therefore, it was submitted, was a nullity in form, and the rule prayed ought to be granted. Patteson, J. said, that the circumstance of might or might not be true, was not sufficient the plea containing a number of facts, which to justify its being set aside. The Court had formerly set aside pleas under such circumdefendant was under terms to plead issuably, stances, but they now never did so unless the or under some other circumstances of a peculiar nature. The plea being insufficient in point of law, was not sufficient justification for its being entirely set aside, and judgment signed as for want of a plea. Rule refused.-Cowper and others v. Jones and another, bail for George Sternberg, H. T. 1836. K. B. P. Č. |