106 -- Superior Courts: Rolls.-Vice-Chancellor..... the said James Cowan and Caroline Yaldwin having died since the filing of the bill, his should appoint, and in default of appointment, personal representatives were brought before for the said children equally. The settlement the court by bill of revivor. The case having also contained a covenant by the said James been partially opened, Cowan that his executors or administrators Mr. Tinney and Mr. Bagshawe, for the should, within twelve months after his death, defendants Kerrison and wife, took a prelimipay to the trustees the sum of 4,000l. with nary objection for want of parties. The interest from the time of his death, which trustees under their marriage settlement and should be held by them upon the same trusts, the children of the marriage being interested for the benefit of Mrs. Cowan and the children in taking the accounts sought to be directed, of the marriage, as were declared respecting it was necessary that they should be brought the personal estate of Richard Yaldwin. There before the court previously to any order being were issue of the marriage three children; viz., made in the cause; and it was also necessary Frances, the wife of Henry Holl; Caroline, the that the personal representatives of William wife of Wm. Kerrison; and James Alex. Cowan, Bishop, who might prove to be a defaulting an infant; all whom were made parties to this trustee, should be made parties. suit: but by the answer of the defendants, Kerrison and wife, it appeared that a settlement was executed on their marriage, by which the share of Mrs. Kerrison in the trust funds was assigned to trustees upon certain trusts for the benefit of herself and husband, with remainder to the issue of the marriage, and as there were two children of such marriage, these defendants submitted, that such trustees and children ought to be parties to the suit. Mr. Kindersley and Mr. Miller, for the plaintiffs, submitted that as the suit was substantially a suit by one trustee against another for a breach of trust, and to recover the trust funds, it was not necessary to make any of the cestui que trusts parties, and that at all events the interests of those on whose behalf the ' objection was taken would be sufficiently protected by the parties already before the court in the same interest; and that with regard to the deceased trustee, the allegations in the bill that he had duly accounted, was an answer to the objection. They cited Franco v. Franco, 3 Ves. 75; May v. Selby, 1 Yo. & Col. C. C. James Cowan died on the 23rd of December, 1823, having by his will appointed James Lowe, since deceased, and the defendant De Tastet, executors of his will; and having, as the bill alleged, left sufficient assets to answer 235. the 4,000l. covenanted to be paid by him. The Master of the Rolls said, there were no William Bishop, the trustee, died in 1830, good grounds for the objections, and the having, as was alleged by the bill, duly allowance of them could only be productive of accounted for and paid over all monies received delay. If it were desired, there might be a by him on account of the trust funds. The reference to the master to inquire whether bill also stated, that in consequence of the there were any and what children of the marplaintiff being resident out of London, the de- riage of Mr. and Mrs. Cowan, and whether any fendant De Tastet took upon himself the active assignment or appointment had been made of management of the trusts, and that the plaintiff any share of the trust funds to which either of was not aware until March 1840, when the the parties became entitled; but if the cestui agents of De Tastet sent to the plaintiff's que trusts sought a general administration of solicitor a statement of the trust funds, together the trust property, they must file a proper bill with certain powers of attorney for the plaintiff's for the purpose, as the object of this suit was ' execution, that the 4,000l. had not been re- limited to the recovery and investment of the ceived and invested according to the trusts of 4,000l. The defendants having adopted his the settlement. Finding, however, that a lordship's suggestion, an inquiry was directed considerable portion of this sum still remained according to the terms of it, and a reference outstanding, he refused to give any authority was also ordered to ascertain how much of the for De Tastet or his agents to receive any 4,000l. had been received, and to take the further dividends, and shortly afterwards filed usual accounts of the estate of James Cowan, the present bill, by which he prayed that an and whether the defendant De Tastet had any account might be taken of all sums of money and what lien on any part of such estate. paid or invested by Lowe and De Tastet, as Gordon v. Lowe, May 5th, 1845. the executors of Cowan, in respect of the 4,000l., and that what should be found due from the estate of Cowan in respect of it might be paid and invested by the defendants Lowe Vice-Chancellor of England. and De Tastet, as his executors, upon the trusts [Reported by E. VANSITTART NEALE, Esq., Barrister at Law.] of the settlement, and if necessary, that the usual accounts might be taken of the estate and MARRIED WOMEN. SETTLEMENT.-COSTS. effects of Cowan possessed or received by those defendants, and that the same might be administered; and that if necessary a receiver might be appointed; and also, if necessary, a new trustee in the place of the defendant Firmin de Tastet, who was resident out of the jurisdiction of the court. The defendant Lowe Where a husband had received the fortune of his wife and employed it in his trade, and then had become bankrupt, and a part was afterwards realized out of his assets. Held, that the wife had an equity as against the assignees, to have the whole of this fund settled upon her. Superior Courts: Vice-Chancellor.-Queen's Bench. The costs of a motion reserved till the hearing, will not be included in the costs of the suit, by a general reservation of costs at the hearing. 107 as before mentioned, and observing as to the time when the husband was found to have resided with the wife at her expense, that "desertion would have been more beneficial to her," THIS was a bill to have the whole of a cerconcluded by saying "It seems to me that tain part of the fortune of a married woman though there is no case directly authorizing the settled upon her, under the following circum-report, the principles of the cases do authorize stances. No settlement had been made of her it, and if a precedent is needed I will make it." fortune upon her marriage; but her father had A question then arose as to the costs of the from time to time advanced various sums, suit, which his Honour gave generally against amounting altogether to 6,000l. to her husband, the assignees; excepting those of one motion, who had employed them in his trade. The of which the costs had been reserved until the wife was also entitled to a sum of nearly 6,000l. hearing, while at the hearing no notice was under her uncle's will. This also had, with taken of them; but a general reservation of the her consent, been lent to her husband for the costs of the suit only was made. purpose of being employed by him in his trade, on certain securities, which afterwards proved unavailable. The husband had become bankrupt, and a sum of 4,500l. had been realized out of his assets, which the bill sought to have settled upon the wife for her life. The assignees opposed the claim. They urged that the present fund was quite distinct from that out of which advances had been made to the husband; and that a wife's equity to a settle ment had never been extended to the whole fund, except in cases of cruelty or desertion, neither of which were here alleged, but only misfortune. It appeared that the marriage had taken place in 1815; from that time until 1835, It was contended that this reservation was a continuation of the former reservation; but the Vice-Chancellor said, that upon the true construction of the terms employed as part of the English language, it seemed to him that if the court at one time reserved the costs of a particular matter till the hearing, and then at the hearing said nothing about these costs, but reserved only the costs of the suit, it did not reserve the costs of the particular matter. Gardiner v. Marshall. May 5, 1845. Queen's Bench. (Before the Four Judges.) when the bankruptcy took place, the husband [Reported by John Hammerton, Esq., Barrister at had supported the wife, except during a short period in 1833. Subsequently the wife had been supported by her own relations, who, during a part of the time had supported her husband also, while he was living with her. The case came on for further directions, and on exceptions to the master's report, which found that the whole of the fund in question in the suit ought to be settled on the wife, Mr. Anderdon and Mr. Freeling, for the assignees. Mr. Bethell and Mr. Rolt, for the plaintiff. Mr. Walker and Mr. Hetherington, for other parties. Oswell v. Probert, 2 Ves. 680; Watkyns v. Watkyns, 2 Atkins, 96; Priddy v. Rose, 3 Mer. 86; and Green v. Otto, 1 Sim. & Stu. were cited. The Vice-Chancellor. In the case of Foster and Foster, it was argued before me that the court could not give a larger proportion to the wife than one-fourth of the fund. But I thought the court able to exercise a discretion, and gave the wife, three-fourths. Now it may be, that there is no case where the question was simply one of the settlement of the wife's fortune, in which the court has refused to give the husband a proportion of it. But when the husband has practically received a part of the wife's fortune, it is a different question what is to be done with the remainder-and this is substantially the case here. It seems to me, that though not in form, this is a case in which the husband has received part of the fortune which was to be settled upon the wife. His Honour then, after stating the facts of the case • Not reported. PRACTICE. Law.] CERTIORARI AND RETURN A certiorari was obtained to bring up an order 108 Superior Courts: Q. B. Practice Court.-Parliamentary Proceedings-Letter Box. Mr. Macauley showed cause. Majesty's consul, &c., do hereby certify that An erroneous description of the appellant James Harper, whose signature is appended to parish is not, under the circumstances, a the annexed document, is mayor of the city of ground for quashing the certiorari. [Lord New York, and that to his official acts all Denman, C. J.-The certiorari is to bring up credit is due. In testimony whereof, I have one order, and you bring up another. The hereunto set my seal. &c. Anthony Barclay." return is not made under any authority.] The There was also an affidavit of James Hertslet, return, and all proceedings respecting the sub-librarian of the Foreign Office in London, order from the respondent parish to Appleby, verifying the signature of Mr. Barclay. in Derbyshire, are now before the court, there- Bagley said, it was doubtful whether the fore the actual order intended to be brought affidavit of service of the rule nisi was sufficient, up is now before the court, and the validity of as it did not state that the individual before it can be investigated. [Lord Denman, C. J.-whom it was sworn was authorised by the We perhaps might make out, by circumstances, American laws to take affidavits. that the order returned is the one that was in- Coleridge, J.-That is necessary. You may tended to be brought up, but that is not the probably obtain an affidavit to that effect here. way in which it ought to be done.] In Regina On a subsequent day, Bagley produced an v. Fordham it was held, on motion to quash affidavit to the effect required, by the American documents brought up by certiorari, that the consul in London. court will not entertain the objection that the Rule absolute. documents appear by the return to have been misdescribed. But at all events, this defect on the face of the proceedings can only be ground for quashing the return, and not the certiorari, which is still kept alive; otherwise, six months having elapsed since the order was made, there is no power to bring up the order of sessions. Whitehurst, contrà. Warren v. Swinborne. Q. B. P. C. E. T., 1845. COURT OF QUEEN'S BENCH. NOTICE. THE Court will, on Friday the 13th, Saturday the 14th, Thursday the 19th, and on all the other days (except Sundays) of this instant, June; and on Tuesday, July the 1st, and the three following days, hold sittings, and dispose of business in the crown paper, the special paper, the new trial paper, and will give judgment in cases then pending. The return to the certiorari must be quashed, because a different order is returned from that which is asked for. [Lord Denman, C. J.Do you not ask too much when you ask to quash the writ of certiorari?] Before any certiorari is granted, the statute 13 Geo. 2, c. 18, s. 5, requires that notice in writing shall be given to two of the justices by and before whom the order was made. These preliminary proceedings have not been complied with; no proper notice has been given to the justices by and before whom this order was made; and PARLIAMENTARY PROCEEDINGS REtherefore the certiorari has improvidently issued. Per Curiam.--Rule absolute to quash the certiorari and the return. The Queen v. the Inhabitants of Appleby, in Derbyshire, Easter Term, 1845. Queen's Bench Practice Court. By the Court. LATING TO THE LAW House of Lords. THE bill for the General Registry of Deeds, brought in by Lord Campbell, has been printed, and is of great length. It should be watched, [Reported by E. H. WOOLRYCH, ESQ., Barrister at although there is no expectation of its passing Law.] SERVICE OF RULE.-AFFIDAVIT SWORN IN FOREIGN COUNTRY. Where an affidavit in a proceeding in this court is made in a foreign country, it must distinctly appear that the functionary before whom it is sworn is authorised by the law of the country to administer an oath. Bagley applied to make absolute a rule for entering up judgment on an old warrant of attorney. The rule nisi had been served upon the defendant at New York, and the affidavit of service was sworn before the mayor of the city of New York. The signature of the mayor was verified by the following certificate of the English consul: "I, Anthony Barclay, her a 11 A. & E. 73. through either house this session. The Small Debts Bill will be found at p. 100. House of Commons, The bills affecting the profession in this house have made no progress during the past week. The battle of law reform seems at present to be confined to the upper house. THE EDITOR'S LETTER BOX. THE address of Sir F. Dwarris, of which we have obtained a note, with a statement of the result of the recent examination, will appear in our next number. We have been obliged to defer several communications which are in type. The Legal Observer, OR, JOURNAL OF JURISPRUDENCE. SATURDAY, JUNE 14, 1845. -" Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. THE NEW ORDERS IN CHANCERY. with relation thereto, and also in the form and for directing payment into the suitors' fee-fund of the copy money now received by any of the officers to their own use, and otherwise for carrying into effect the said alterations as to them may seem proper. and mode of proceeding before the masters, and in the form and mode of drawing up, WE have, in several of our recent num- entering, and enrolling orders and decrees, bers, printed, and at last completed, the and of making and delivering copies of new orders of the Court of Chancery, pleadings and other proceedings; and to which, however, do not come into opera- make such regulations as to the taxation, tion until the 28th of October next. It allowance, and payment of costs, and for appears to us that they have been care-altering, superintending, controlling, and fully and considerately drawn, and that regulating the business of the several they will be, on the whole, productive of offices of the court, and also of collecting benefit of the suitor. We are bound, the fees payable to the suitors' fee-fund, however, to say, that they do not meet the entire exigencies of the case. They are made under the statute 3 & 4 Vict. c. 94, (amended by 4 & 5 Vict. c. 52,) which we consider one of the most important statutes ever passed. By this We need not say that the new orders statute the Lord Chancellor, with the ad- do not exhaust the powers here given; vice and consent of the Master of the indeed, if we compared that which has Rolls and the Vice-Chancellor, or one of been performed with that which might them, may and he is thereby required, at have been embraced within the terms of any time within five years from the passing the act, we might have reason to comof this act, [10th August, 1840], to make plain. We are not, however, disposed to such alterations as may seem expedient in do so on the present occasion. But we the forms of writs and commissions, and must observe that these new orders, the mode of sealing, issuing, executing, coupled with those issued by Lord Cottenand returning the same, and also in the ham on the 26th of August, 1841, are all form and mode of filing bills, answers, that has been done under the act; and depositions, affidavits, and other proceed- they certainly remind us of the cartes des ings, and in the form and mode of obtain- restaurateurs that we have seen, in which ing discovery by answer in writing or many dishes are marked with an M., otherwise, and in the form and mode of which indicates that on the particular pleading, and in the form and mode of occasion on which you happen to want taking evidence, and generally in the form them they are a-missing. The bill-of-fare, and mode of proceeding to obtain relief indeed, promises well, but the meal oband in the general practice of the court tained is not the most sumptuous. We H 110 Points in Criminal Law.-Points in Common Law. shall, however, make the best of it on the under consideration, in an action brought by present occasion. But we wish to call the client of the country attorney against the attention to the fact, that in two months town agents, for money had and received, under more the powers given by the act will Cutbush v. Cobb, the defendant Cobb, employed the following circumstances:-In a case of expire the five years which the act had Mr. F. F. Dalby of Rochester, as his attorney, to run will then be at an end. We are and proceedings were stayed in this action sure that this cannot be the intention of under a judge's order, upon payment of debt those interested in the matter; and we and costs. Cobb paid Mr. Dalby 177. 18s. 4d., trust that the act will be forthwith re-to be paid to Cutbush on account of the debt, newed. and Mr. Dalby forwarded his own cheque for 201., to Messrs. Becke and Flower, his town agents, directing them to pay Cutbush's attorney the sum specified, and to have the costs taxed. Messrs. Becke and Flower wrote by return of post to Mr. Dalby, acknowledging the receipt of his cheque, and stating that it should be applied as directed. Some delay took place in taxing the costs, no part of the money was paid to Cutbush's attorney, and ultimately Messrs. Becke and Flower credited Mr. Dalby with the amount in making up their agency account, and retained the 201. in satisUpon this state of facts, the question arose, faction of a balance due to them by him. whether Cobb could recover from Messrs. Becke and Flower, the sum forwarded to them by Mr. Dalby, to pay Cobb's debt? POINTS IN CRIMINAL LAW. ATTEMPT TO POISON. In an indictment for an attempt to poison, it appeared that the two prisoners cohabited together, the female prisoner being a daughter of Mary Vaughan, and that in the month of May 1844 the prisoners procured some arsenic and gave it, in a paper, to a man named Richard Edwards, informing him that it was poison, and that they wanted to kill Vaughan and his wife; At the trial, Lord Denman seems to have and they gave directions to Edwards to been of opinion, that the action could not be keep the arsenic in his hand, and to slip whether the defendants, when they received the maintained, but he left it to the jury to say, it into a pint of beer, undiscovered by the money from Dalby knew it to be the money Vaughans, to whom he was to hand it, of Cobb? and reserved leave for the defendants that they might drink it and be poisoned. to move to enter a nonsuit, if the court thought The prisoners gave Edwards 5s. for his the plaintiff was not entitled to recover. The services, and told him that if he succeeded jury found the question left to them in the he should never want. The prisoners affirmative, and returned a verdict for the were found guilty; but Rolfe, B., respited the judgment, in order to consult the judges. The case was subsequently considered by the fifteen judges, who held the conviction wrong. ASSAULT. ON an indictment for burglary, with intent to ravish A. D., the prisoner cannot be convicted of an assault on A. D. under 1 Vict. c. 85, s. 11: a simple assault not being included in the felony charged, though the indictment alleges a beating and wounding the said A. D. in the dwelling house. Reg. v. Watkins, 2 Moo. 217, S. C. 1 Car. & M. 264. POINTS IN COMMON LAW. PRIVITY OF CONTRACT.-TOWN AGENT AND COUNTRY CLIENT. THE right of a town agent to retain money forwarded by a country attorney, recently came plaintiff, for 171. 18s. 4d. The matter aftertion to set aside the verdict and enter a nonwards came before the court, upon an applicasuit. The general rule applicable to transactions of this nature, that there is no privity between the agent in town and the client in the country, and that the former cannot maintain an action against the latter for his fees, or the latter against the former for negligence, was admitted in the argument and expressly recognized in the judgment of the court. The plaintiff's counsel contended, that the defendants' liability arose from facts irrespective of the professional reknew the money to be Cobb's when they relation between the parties, for as the defendants ceived it, and had pledged themselves to the specific appropriation of it, the privity of contract was sufficiently established. To strengthen and illustrate this view of the facts, several cases were cited, which when examined are authorities only to the extent, that if a debtor orders his agent to appropriate a fund in his hands to the discharge of a specific debt, and the agent pledges himself to the creditor so to a Cobb v. Becke and another, 14 Law Jour. 108, Q. B. b All the cases are collected in 1 Wms. Saunders 2106, note a, 6th edition. |