240 Superior Courts: Common Pleas.-Notes of the Term.-Editor's Letter Box. could not now produce; a writ was proved to have been sued out at the instance of the defendants, against the plaintiff, and a conversation between the defendants having reference to the plaintiff being in custody, was shewn to have taken place; and it was also proved, that an application made to a judge for the plaintiff's discharge, was opposed by the defendant's attorney : Held, that there was evidence for the jury, that the plaintiff had been arrested at the instance of the defendants, and that the defendants were not entitled to a nonsuit. the jury might come to the conclusion at which they have arrived. Coltman, Erskine, and Muule, J. J., concurred. Rule refused.-Petre v. Lamont and another. H. T. 1842. C. P. NOTES OF THE TERM. THE NEW JUDGE. MR. CRESSWELL, Q. C., of the Northern Circuit, and M. P. for Liverpool, has been appointed to the vacant Judgeship in the Common Pleas, on the resignation of Mr. Justice Bosanquet. He will go the Oxford Circuit. THE ENSUING EXEMINATION. Terms. The number to be examined on Tuesday next is 106 only:-these will be quite sufficient, we suppose, to supply the deaths and resignations since last Term! The Examination does not appear in the least to thin the ranks of the Candidates. This was an action for a malicious arrest, under a writ issued in pursuance of an order of Purke, B., by virtue of the 1 & 2 Vic. cap. 110, to which the defendants pleaded Not Guilty. The cause was tried before Erskine, J., at the sittings after M. T. 1841, when a sheriff's officer was called to prove the arrest A PARAGRAPH has been going the round of to have been made, and he stated that the the newspapers stating that upwards of 160 plaintiff had been arrested under a warrant, persons were applying to be admitted this which he was unable to produce, having depo- Term. This must include double notices, and sited it with the porter at the lock-up-house, the names of persons examined in previous where the plaintiff was lodged. The warrant was not produced by any other witness, but the issuing of a writ at the instance of the defendants was duly proved. A conversation was also shewn to have taken place between the defendants, when one of them said, in allusion to the plaintiff, "we mean to punish him if we can; we have got him fast, and if it cost 5007., will punish him," and evidence was also given, that upon an application being made to Parke, B., at chambers by the plaintiff for THE next Part of the Analytical Digest of all his discharge, on the ground of the insuffi- the Reports of Cases decided in all the Courts ciency of the affidavit upon which the order will be published early in the next month; was obtained, that application was opposed and we shall continue, at convenient intervals, by the defendant's attorney. It was objected, to give a Summary of the Decisions reported on behalf of the defendants, that the warrant ought to have been produced, for that without that, there was no evidence to connect the arrest with the writ; but this objection being overruled, a verdict was found for the plaintiff with 157. damages. Mr. Serjt. Bompas now moved to set that verdict aside, and for a nonsuit, on the ground of the non-production of the warrant. Tindul, C. J.-The only question here was, whether the plaintiff was arrested and put in custody under the particular writ, which is alleged to have been sued out at the instance of the defendants; and no question arises as to his being taken under any particular warrant. I think that in the course of the case abundant evidence was produced to support the declaration. The making of the order by Mr. Baron Parke, and issuing of a writ thereon, were duly proved. There was only one order and one writ, and taking this circumstance together with the conversation between the defendants, which could only refer to the arrest made under the writ sued out at their instance, and the fact of the defendant's attorney opposing the discharge of the plaintiff at chambers, I think that there can be no doubt that there was no other arrest of the plaintiff, except at the suit of the defendants, and that there was, therefore, abundance of evidence on which THE EDITOR'S LETTER BOX. in the Legal Observer, with occasional Notes. Our readers will thus be in possession, in a collective form, of every point of law and practice. Where the cases are important, we shall give the judgments, with the autho rities cited. C. T. A. is informed that, although "in an action at law, where a verdict is returned for the plaintiff, he can tax his costs, and issue execution at once against the defendant," the defendant's attorney cannot tax his costs as against his own client, and issue execution; but he must first deliver his bill, duly signed, one lunar month; and then, if not paid, he may proceed by action. T. G. states that a vendor sells his freehold estate to a purchaser for 1000%., at which time there is a mortgage upon the same for 9001: the mortgagor solicits, and the mortgagee allows the 9007. to remain on security of the property in question; and he inquires what, in such a case, will be the ad valorem stamp duty, the conveyance being made subject to the mortgage. There can be no doubt, we conceive, that the duty must be paid on the whole sum of 1000/. We beg "Causidious" will send a copy of the letter he wishes to be inserted. The letter of "Att. ad Leg." shall be attended to. FROM MR. AMBROSE HARCOURT, STU-tell you first, what I think of Lord Lynd dent at LAW, TO MR. THOMAS PRINGLE, OF TRINITY HALL, CAMBRIDGE. LETTER III. Dear Pringle, hurst. You know what a favourite he has always been with me! How I cheered when he was elected last year! such a bold dashing fellow ! Whatever may be his faults, every body must admire him, and his whole life has such attractive points to a young man. Here he is, three times Chancellor, and all won by the sheer force of his talents. Besides, to us Cambridge men, he must be always on many accounts dear. HAVING now been some time with Barnaby, I begin to vary the scene a little, and instead of remaining behind the scenes all day, I occasionally mix among the public, and go to see the great actors playing their Well, with all these feelings of pride and parts; and, indeed, I might well pursue the admiration, I entered his Court, and remetaphor. A pleader's chambers lets you mained there some time. I could not get into many of the secrets of a cause; and if near him at Cambridge, but I have seen you have your wits about you, you see there him well enough in the Court of Chancery. many of the mysterious springs by which His countenance certainly, once seen, is not its public performance is assisted and carried easily forgotten: it is full of intelligence and on. If I have taken a part, therefore, in meaning. Judgment sits throned on his the pleadings in any cause, however insig- broad forehead, and no ordinary degree of nificant, which I hear is coming on for trial, prudence, not to call it by any harsher His manner and I can at all make it convenient, I go word, plays about his mouth. down to Court and hear it tried, and I pick encourages the advocate, but there is withal up a good deal in this way. The only a certain sarcastic smile occasionally, which harm is, that it rather unsettles me for the shows that no great impression is made. rest of the day. After I have passed some I can conceive this to have some terror in time in Court, and got my mind excited it, if its whole force was put out; at prewith all the interesting matters that are sent it is only playful. Indeed, his whole there transacted; more especially, when I manner appeared to me mild and subdued. have had any, the slightest, part in them, II hear that it is much changed from what it find I cannot return with any patience to Tidd. I am thus almost forced to employ the rest of the day in Westminster Hall, and I go from Court to Court noting down the leading points, as they strike me, of the Judges. You may like to hear what I think of them, however jejune you may find my notes. I enjoy a day of this sort very much, although it is certainly rather dissipating to the mind, and should not be indulged in too often. NO. 699. VOL. XXIII. used to be. They tell me he is not what he was: that he is now only a splendid ruin; but certainly, if he is on the decline, I wish I could have seen him in his meridian. He appears to me, still to have the faculty of seizing on the main point to be decided; he has still a most retentive memory of all the facts in a cause; and it was only the other day that I heard him, offhand, deliver a judgment that would have been sufficient stock in trade for any ordi R 242 Letters from a Student.-Notes on Equity. nary Judge to set up with. Age is, how-| debts out of the realty, so as to prevent the operation of the Statute of Limitations, and that the real estate remained liable to pay a simple contract debt, which had been left unpaid after distribution of the residuary personal estate. "It was argued," said his Lordship, "that because the testator after making the charge or creating the trust, has in a subsequent part of his will directed that if the personal estate should fall short of paying his debts, the executors should enter into the receipt of the rents of the real estate, and therewith pay his debts, he has shewn an intention to charge the real estate only, in the event of the personal estate proving deficient; but the first general charge does not appear to me to be varied by the subsequent direction to apply the personal and real estate for the same purpose in a particular order; and I do not think, that according to this will there is no trust, because the personal estate was sufficient; a trust was created: it became the duties of the trustees to pay the debt." ever, creeping on him. He appears to me Your's truly, NOTES ON EQUITY. CHARGE OF DEBTS. THE question whether a trust for the payment of debts in a will of personal estate, will prevent the operation of the Statute of Limitations, has been much discussed of late. Sir John Leach, M. R., decided that it would not. This decision was reversed by Lord Brougham, C. But the latter decision was reversed by the House of Lords. The rule is however otherwise, so far as real estate is concerned.c In a very recent case, a testator directed his estates to be paid out of his real and personal estate, and he afterwards provided, that if his personal estate should fall short in paying his debts, then he empowered his executors to enter into the receipt of the rents of his freeholds, until the same should be wholly paid off. The personal estate was sufficient for payment of the debts; and Lord Langdale, M. R., held, that nevertheless, a trust had been created for payment of the RECEIVER. A PLAINTIFF, although appointed receiver in the cause, cannot, before decree, be ordered as plaintiff, to produce books or accounts in his possession for the inspection of a defendant. As plaintiff," said Lord Cottenham, C., "I consider it perfectly clear, that he is not subject to be called upon by an adverse application to produce documents in his possession. It is very different after a decree which orders it. In the present instance I consider the plaintiff merely as receiver of property, common to both parties; and I apprehend it to be quite clear, that having some documents in his possession relative to his accounts, it is right to make an order to compel him to produce them to the other party. If he has kept accounts at all, they must include some items relating to the partnership affairs. Clearly, the Court has, and I apprehend the Master ought to have, power to compel the plaintiff to produce all accounts kept by him connected with the partnership. There is considerable difficulty in not ordering inspection at the premises, because any other place will be inconvenient; but at the same time, I feel that a party in possession of documents as receiver at his own house, is not obliged to consent to an inspection of them there." • Maund v. Alles, 4 M. & C. 507. Judgments affecting Real Property. JUDGMENTS, SO FAR AS THEY REFERRING to our last article (at p. 213), we now continue this important subject. If there was some legal impediment which prevented the judgment creditor from taking the property of his debtor in execution, under either of the statutes which have been referred to, equity would frequently lend its assistance, and give the creditor, by its own process, the benefit which he would have had at law if no such impediment had intervened. In the words of Sir John Leach (Forth v. Duke of Norfolk, 4 Madd. 504,) a judgment creditor has at law, by the Statute of Frauds, execution against the equitable freehold estate of the debtor in the hands of his trustees, provided the debtor has the whole beneficial interest; but if he has left a partial interest only in his equitable freehold estate, the judgment creditor has no execution at law, though he may come into a court of equity, and claim there the same satisfaction out of the equitable interest as he would be entitled to at law, if it were legal. Every voluntary assignee of the equitable interest of the debtor, will be in the same situation with respect to the claim of the judgment creditor as was the debtor himself. Every assignee for valuable consideration will hold the equitable interest, discharged of the claim of the judgment creditor, unless he has notice of it before his consideration is paid." Equity would assist a judgment creditor by paying off the judgment and allowing him his legal priority, where, under any circumstances, the Court was selling and administering the lands of the debtor; by appointing a receiver; or by entitling him to redeem a subsisting mortgage As to the equitable relief, see Neate v. Duke of Marlboryugh, 3 Myl. & Cr. 416; Silver v. Bishop of Norwich, 2 Swanst. 112 n.; White v. Bishop of Peterborough, 2 Swanst. 109; Tunstall v. Truppes, 3 Sim. 300, Sharpe v. Earl of Scarborough, 4 Ves. 538. A judgment, however, was not such a lien in equity as would entitle the creditor to a sale in the lifetime of the debtor, simply for the purpose of having his debt satisfied. Neate v. Duke of Marlborough, 3 Myl. & Craig. 416. As the judgment creditor derived his right against the debtor's lands from the statute, equity could only follow the law; and consequently the remedy of the creditor in equity was confined to the moiety which might have been taken in execution under the statute if there had been no legal impediment. 243 Thus, in Stileman v. Ashdown, 2 Atk. 608, Lord Hardwicke said, "Equity follows the law in this case; and as the plaintiff can only extend a moiety there, he shall have no more here. Suppose it was the case of a bond creditor, he might have an action of debt against the heir, and judgment against him upon assets descended; and this he is entitled to at common law, for it is the debt of the heir and the action is in the debet and detinet; but if a judgment was obtained against the ancestor, a scire facias could not be brought against the heir, because at common law, the heir was not bound. There is no doubt but, if it had continued a bond, the whole assets would have been liable in the hands of the heir; but before the statute of Westminster, there was no remedy against the ancestor in his lifetime upon a judgment on his land, and it is that statute which subjects one moiety thereof to the judgment. The consequence of this is, that, notwithstanding the ancestor is dead, if the land comes into the hands of the heir or purchaser, it comes equally bound." O'Gorman v. Comyn, 2 Sch. & Lef. 137. But this rule must be taken with some qualification in the case of a judgment creditor redeeming a subsisting mortgage, who is entitled to have satisfaction out of the entirety of the lands which are included in the mortgage. And the creditor had the same right by virtue of his judgment against the entirety, where the lands of the debtor became subject to administration in equity, and were subject to a subsisting mortgage, which the creditor was then entitled to redeem. Stonehewer v. Thompson, 2 Atk. 440; Sharpe v. Earl of Scarborough, 4 Ves. 538; Tunstall v. Trappes, 3 Sim. 300. As a general rule, the Court would suspend its relief until the judgment creditor had sued out his elegit. Thus, in Neate v. The Duke of Marlborough, 3 Myl & Cr. 407, a creditor filed his bill, praying that he might be declared entitled to an equitable lien upon an annual sum of 30007., to which the debtor was entitled out of certain freehold estates; and the bill was demurred to on the ground that it contained no express allegation that the creditor had sued out his elegit. Lord Cottenham allowed the demurrer. "How (said his Lordship) can the judgment which per se gives the creditor no title against the land, be considered as giving him a title here? Suppose he never sues out the writ, and never, therefore, exercises his option, is this Court to give him the benefit of a lien to which he has never chosen to assert his right? The reasoning would seem very strong that as R 2 244 Judgments affecting Real Property. this Court is lending its aid to the legal right, the party must have previously armed himself with that which constitutes his legal right; and that which constitutes the legal right is the writ. This Court, in fact, is doing neither more nor less than giving him what the act of parliament and an ejectmeut would, under other circumstances, have given him at law. The sole reason for coming into this Court being founded on a right which the writ of elegit confers, the creditor cannot come without having obtained that right." But it is to be concluded from Lord Cottenham's judgment in this case that where the lands of the debtor became subject to administration, and there were other circumstances which rendered a sale indispensable, that the Court in clearing the estate of charges, would pay off the judgment without requiring the creditor to sue out an elegit Neate v. Duke of Marlborough, 3 Myl. & Cr. 417; Tunstall v. Trappes, 3 Sim. 286. Upon this principle it was, that the House of Lords in Barnewall v. Barnewall, 3 Ridg. Parl. Rep. 61, afforded the necessary relief to the creditor, although he had not sued out the elegit. Where property was conveyed to such uses as A. B. should appoint, and A. B. afterwards exercised his power, the appointee claimed immediately under the instrument by which the power was limited, as if the appointment had been contained in the very instrument itself, and consequently was unaffected by judgments entered up subsequently to the creation of the power. Thus, in Doe d. Wigan v. Jones, 10 Barn. & Cres. 459, Lord Tenterden, C. J., said, "It has been established ever since the time of Lord Coke, that where a power is executed, the person takes under him who creates the power, and not under him who executes it. The only exceptions are, where the person executing the power has granted a lease or any other interest, which he may do by virtue of his estate, for then he is not allowed to defeat his own act. But suffering a judgment is not within the exception as an act done by the party, for it is considered as a proceeding in invitum, and therefore falls within the rule." See also Tunstall v. Trappes, 3 Sim. 300. And in these cases notice was immaterial: Eaton v. Sanxter, 6 Sim. 517: Skeeles v. Shearley, 8 Sim. 153; on appeal, 3 Myl. & Cr. 112. The 6 G. 4, c. 16, s. 108, enacts that no creditor having security for his debt, shall receive upon any such security more than a rateable part of such debt, except in respect of an execution or extent served and levied before the bankruptcy; and provides that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall be paid otherwise than rateably with other creditors. The 1 W. 4, c. 7, s. 7, has materially abridged the exception contained in the above section, which it recites, and enacts that no judgment signed or execution issued after the passing of the act on a cognovit actionem, signed after declaration filed or delivered, or judgment by default, confession, or nihil dicit, according to the practice of the Court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be taken to be within the provision of the said recited act. A judgment upon a warrant of attorney is not within the protection of this statute, though given without collusion or intention of fraudulent preference. Crossfield v. Stanley, 4 Barn. & Adol. 87. Upon the 21 Jac. 1, c. 19, s. 9, (of which, the 6 Geo. 4th, c. 16, s. 108, is in substance a re-enactment) it has been decided that the bankruptcy of the debtor would not deprive the judgment creditor of his lien upon the lands which had been sold between the judgment and the bankruptcy; and though the judgment creditor could not come in upon the bankrupt's estate for any more than his proportion with the other creditors, yet that he would be at liberty to extend his judgment against a purchaser, who bought the land prior to the bankruptcy. Orlebar v. Fletcher, 1 P. Wms. 78; Newland v. -, 1 P. Wms. 91. In Sloper v. Fish, 2 Ves. & Bea. 145, the bankruptcy intervened between the execution of the deeds of conveyance and the payment of the purchase money; and the question was, whether, assuming the conveyance to be absolute, and not, as was contended, an escrow only, a judgment would be operative as against the lien of the assignees for the purchase money; and if not, what would prevent its attaching upon the estate; and Sir W. Grant, M. R., considered the point to be too doubtful to compel the purchaser to take the title derived from the assignees. In Sharpe v. Rouhde, 2 Rose, 192, Sir W. Grant held that judgment creditors had no lien upon lands articled to be sold before a bankruptcy, the conveyance of which remained unexecuted at the date of the com mission. The statute 4 & 5 Will. & Mary, c. 20, |