The Doctrine of Acquiescence.-New Orders in Chancery. 35 THE DOCTRINE OF ACQUIESCENCE. | established as they were alleged, a case existed in which the plaintiff was entitled to the interposition which he prayed." THE rule that "silence gives consent," is a strictly equitable doctrine. If a person have a right or interest, and he choose not to enforce it for a considerable time, the presumption will arise that he has either waived it, or has consented to be deprived of its enjoyment; and this doctrine is one of very extensive application. In Jones v. The Royal Canal Company, Lord Manners, J. C., held that it was the duty of a party seeing a nuisance in progress to give notice to the party erecting the nuisance, of his intention to object; and, in two cases, a Court of Equity has gone to the extent of holding that such an omission would give the adverse party an equity to prevent the party concealing his right, or apparently acquiescing in the nuisance, from asserting his title at law to compensation for the nuisance when ef fected. This was done in the case of The Watercourse, and that of Short v. Taylor,c where injunctions were granted to restrain actions for nuisances, because the plaintiff at law had encouraged them. It is a still stronger case where one party has suffered His Lordship reviewed the authorities and thus continued. "That being the state of the authorities, if I were to allow this demurrer, I should of course be understood as saying, and I should in fact be saying, that no case was stated on this bill which, if proved, would entitle the plaintiff to the interposition of the Court. There is no fact before me to call for any opinion as to what degree of encouragement or what circumstances leading to encouragement, would be sufficient for that purpose. But I think it quite clear that there is in this bill sufficient allegation to make it competent for the plaintiff to give such evidence as would operate in raising an equity against the title asserted by a party claiming compensation at law for a nuisance. NEW ORDER IN CHANCERY RELATING TO DISTRINGAS ON STOCK. another to expend money on property, in Wednesday, the 17th day of Nov. 1841. which case the party having the legal right«THE Right Honourable John Singleton will be restrained from its exercise; and although this has usually happened where there was some privity between the parties, as for instance, that of landlord and tenant, or principal and agent, yet it is conceived the principle is not confined to such cases. . In a recent case,e this doctrine has been acted on with respect to a nuisance, and Lord Cottenham, C., has laid it down, that a party may so encourage another in the erection of a nuisance as to give the adverse party an equity to restrain him from recovering damages at law for such nuisance when completed. "It was there alleged that there was sufficient in what the bill stated to have been the conduct of Lord Jersey with respect to these works, to preclude him from the right of treating them as a nuisance. The allegation in the bill was, that whilst the erection of these works was in progress, he was aware of it, and that he encouraged it. Of course it must be assumed, on a demurrer, that what the bill alleged was true, and the only question was, whether, if the facts were Great Britain, by and with the advice and Lord Lyndhurst, Lord High Chancellor of assistance of the Right Honourable Henry Lord Langdale, Master of the Rolls; the Right Honourable Sir Lancelot Shadwell, Vice Chancellor of England; the Honourable the Vice Chancellor James Lewis Knight Bruce, and the Honourable the Vice Chancellor James Wigram, and in pursuthe reign of her present Majesty, intituled ance of an act passed in the fifth year of Administration of Justice,' doth hereby An Act to make further provisions for the order and direct in manner following, that is to say "1. That any person or persons claiming at the Bank of England, standing in the to be interested in any stock transferable at the Bank of England, standing in the sons, or body politic or corporate, in the name or names of any other person or perbooks of the Governor and Company of the Bank of England, may, by his or their suant to the said act, in the form set out in solicitor, prepare a writ of distringas, purthe first schedule to the said act, and may present the same for sealing at the subpoena office. "2. That upon the presentment of such writ for sealing, and on leaving with the patentee of the subpoena office an affidavit, duly sworn by the person or one of the sum the said patentee shall pay the sum of four shillings to the Accountant General, to be by him placed to the credit of the account entitled The Suitors' Fee Fund Account.' persons applying for such writ, or his solicitor, before one of the Masters or Masters Extraordinary of this Court, in the form set out at the foot of these orders, the same writ shall (in conformity with the orders of this court for issuing and sealing writs of subpoena) be forthwith sealed with the seal of the subpoena office, and such writ, when sealed, shall have the same force and validity as the writ of distringas heretofore issued out of the Court of Exchequer. "3. That such writ of distringas, and all process thereunder, may at any time be discharged by the order of this court, to be obtained, as of course, upon the petition of the party on whose behalf the writ was issued, and to be obtained upon the application by motion or notice, or by petition duly served, of any other person claiming to be interested in the stock sought to be affected by such writ. And that upon or after such application, such costs thereof, and in relation thereto, and to the said writ, as to this court shall seem just, may, if this court shall think fit, be awarded and ordered to be paid by the person or persons who obtained such distringas, or upon an application by any other person or persons, by such person or persons. "4. That the governor and company of the Bank of England having been served with such writ of distringas, and a notice not to permit the transfer of the stock in such notice, and in the said affidavit specified, or not to pay the dividends thereon, and having afterwards received a request from the party or parties in whose name or names such stock shall be standing, or some person on his or their behalf, or representing him or them, to allow such transfer, or to pay such dividends, shall not by force, or in consequence of such distringas, be authorised without the order of this court to refuse to permit such transfer to be made, or to withhold payment of such dividends for more than eight days after the date of such request. "5. That upon leaving such affidavit, as aforesaid, with the patentee of the subpoena office, there shall be paid to such patentee the sum of one shilling for filing such affidavit. And that within twenty-four hours from the time when such affidavit shall be so left, the said patentee shall pay the said sum of one shilling to the clerk of the affidavits, and cause such affidavit to be filed and registered at the office of such clerk. "Y. Z. (the name of the party on whose behalf the writ is sued out) v. The Governor and Company of the Bank of England. "I, A. B., of do solemly swear that, according to the best of my knowledge, information, and belief, I am (or the affidavit is made by the solicitor, C. D., of is) bond fide and beneficially interested in the stock hereinafter particularly described; that is to say [here specify the amount of the stock to be affected by the writ, and the name or names of the or persons, or body politic or corporate, in whose name or names the same shall be standing]. And that I have reason to believe, and do believe, that there is danger of such stock being dealt with in a manner prejudicial to my interest [or to the interest of the said C. D., (as the case may be)]. (Signed) "LYNDHURST, C. person LANCELOT SHADWELL, V.C. These Orders will materially facilitate the practice of restraining the transfer of stock, by enabling the solicitor to issue the distringas himself, without the delay which would be occasioned by its being prepared in the Six Clerks' Office. A single day is on many occasions of the greatest importance. THE orders of the 11th instant for the distribution of the judicial business of the Courts, which were printed in our last Number, were examined with an office copy of the original Orders. Another publication, said to be 6. That upon the sealing of such writ" authorised," contains several inaccuracies. of distringas the sum of five shillings and sixpence shall be paid to the patentee of They are, however, of a verbal nature, and not the subpoena office, and that out of such of much consequence. Orders in Chancery.— Questions at the Examination. OF THE COURTS, 37 What notice to quit should be given to a tenant who holds under a yearly tenancy? May it be given at any time of the year? or must it have reference to any, and what particular period? We have heard of some claim on the part of COMMON AND STATUTE LAW, AND PRACTICE an officer of the Court to a copyright in the General Orders issued by the Judges, as if such Orders were private property, but, on reconsideration, we have no doubt that the officer will perceive that as these Orders are intended to affect the rights and interests of the suitors and practitioners of the Court, and are, or ought to be, promulgated in open Court, without which neither practitioner or suitor could be "affected with notice," it is impossible there can be any exclusive right to print them. Ejectment. If a tenant be served with an ejectment, and his landlord wish to defend, is he allowed to do so; and if so, how does he obtain leave to do it? Chose in Action. In the Common Law Courts, when a new Describe the nature of a chose in action. rule is made, it is read by the proper officer in all the Courts, and immediately appears, as well in the newspapers as the legal periodicals, amongst the other decisions and proceedings of the Courts. It surely cannot be maintained that the Judges of the Courts of Equity may make a written order and deliver it privately to one of the officers of the Court with authority to print it in any manner, and publish it at any time, and at any price that he pleases; and that such is to be the only mode of communicating to the public and the profession those Rules and Orders of the Court by which the suitors and practitioners are to be bound. We conceive that we shall but properly discharge our duty in continuing to communicate to our readers the earliest intelligence on all matters of Law and Practice, and we have no doubt that if the matter should be brought before any of the Judges who preside over the Courts of Chancery, they will approve of our making known their Orders, without the due promulgation of which, it is manifest that the business of the Courts will frequently be impeded. QUESTIONS AT THE EXAMINATION, PRELIMINARY. Where, and with whom, did you serve your clerkship? State the particular branch or branches of the law to which you have principally applied yourself during your clerkship? Mention some of the principal law books you have read and studied. Bond. If A. give a bond to B. for 1007., and B. assign the bond to C., and C. bring an action to recover the amount, in whose name should the action be brought? Form of Action. Suppose A. indebted to B. 1001. for goods sold and delivered, in what form or forms of action can B. recover the debt? Pleading. Suppose a party has four days' time to plead given to him by a judge's order, dated on Monday, November 1; when must he plead, so as to prevent judgment being signed against him by default? Evidence. Will a deed ever, and when, prove itself, without calling the attesting witnesses ? Trials. Are the Superior Courts, or a Judge of such Courts, authorized in any, and what cases, to direct a cause to be tried before a sheriff? Is there any, and what, difference in the mode of trial of issues in law and issues in fact? and how are such respective issues tried? If a plaintiff make default in proceeding to the trial of, his cause, is there any, and what, course by which a defendant can bring the cause on to trial? Nisi Prius. What is the derivation and meaning of the 38 Questions at the Examination. one? "and if more than one, which is the Costs. If a cause be tried by a special jury obtained Suppose a trial had, and a rule for a new had? Suppose a juror be withdrawn on the trial CONVEYANCING. Estates. Where it is proposed to convey an estate by lease and release, can the lease be dispensed with under any, and what, circumstances; and under what authority? What is a legal, and what is an equitable estate? and give an instance. Where an estate is limited to A. for life, with power to grant leases for twenty-one A., on his marriage, limited a freehold es- How may dower be barred or prevented? may such estate be severed? What is a tenancy by the curtesy of England? What are the proper words for creating an estate tail by deed? Mortgages. A mortgagee in fee dies intestate? in whom Lease. Descent. What is a succession per stirpes, and what per capita? EQUITY, AND PRACTICE OF THE COURTS. Where an injury to property is apprehended, If a loss to an estate occur by a breach of trust on the part of an executor or trustee, and a profit arise to the same estate by any other act on the part of the executor, contrary to the trusts of the will or deed; is the executor in the first instance liable; and, in the latter case, can he set off any gains to the estate from any losses that have occurred by his breach of trust? If a trustee or agent purchase an estate which he is employed to sell, will a Court of Equity protect the sale? and give a reason for your answer. What is necessary to be done in order to obtain from another an account of monies come to his hands as executor, trustee, or agent? In the case of a receiver being appointed of a real estate, to what amount is he re If quired to give sureties for the due performance of his duty? After such receiver has received the rents and paid all outgoings, what is his duty with respect to the balance in his hands? a party interested in a fund in Court assign it to another as a security for a debt, what is the course to be pursued to make his security available? What is necessary to be done to make an infant a ward of Court, and in what cases will the Court allow maintenance for an infant? Practice. What authority ought to be taken by a so- At the expiration of a lease for a year, is What time is allowed to a defendant to apany, and what notice required? Trust. On payment of purchase money to trustees, what is to be attended to on the part of the purchaser? pear, after he has been served with a What time is given to a defendant, after Questions at the Examination. In what cases will the Court of Chancery grant a writ of ne exeat regno ? Does the marriage of a female defendant abate a suit? Who is liable for costs incurred by an infant plaintiff? BANKRUPTCY AND PRACTICE OF THE COURTS. Fiat. What is the course of proceeding in issuing and prosecuting a fiat in bankruptcy? Is it essential to the validity of a fiat, that the petitioning creditor's debt should be due and payable at the time of the act of bankruptcy? Act of bankruptcy. State the most usual acts of bankruptcy? Evidence. Are all persons competent as witnesses to prove the constituent parts of the bankruptcy? if not, what objections render a person incompetent ? By what evidence must a promise be proved, to be available, made by a bankrupt after the allowance of his certificate, to pay a debt which has been barred thereby ? What is necessary to render a bankrupt competent as a witness, and are there any, and what matters, which he is under no circumstances competent to prove or disprove ? Costs. Are the assignees under any, and what circumstances, liable to pay the solicitor's bill for obtaining and prosecuting the fiat up to the choice of assignees ? Liability and rights of bankrupt. Can a bankrupt be apprehended before the expiration of the forty-two days when he has not surrendered? and if so, under what circumstances, and what is the proper course to be taken to procure his apprehension ? What is the course of proceeding on behalf of an individual improperly declared bankrupt, to obtain a supersedeas of the fiat? 39 CRIMINAL LAW, AND PROCEEDINGS BEFORE JUSTICES OF THE PEACE. Nature of Offences. State the distinction between murder and manslaughter? What constitutes the offence of burglary ? Is the offence of burglary in any case pu nishable with death? If so, state under what circumstances it is so punishable. What constitutes the offence of larceny; and what is the difference, if any, between grand and petty larceny ? When a banker, broker, attorney, or agent, entrusted with Exchequer bills or other securities for safe custody, violates the trust, and applies the property to his own use, can he be prosecuted criminally; and if so, what is the punishment? What is the meaning of the term "Theft Bote?" What is perjury, and the punishment of a What is subornation of perjury, and the person convicted of it? What constitutes a libel? punishment for a person convicted of it? Can a libeller be prosecuted criminally as well as civilly; and if so, does the truth of a libel form a good defence to the prosecution ? Criminal Proceedings. State if there is any case where the bank-State some of the ordinary cases within the rupt's certificate is not void, but is no bar to a creditor who has not proved his debt in enforcing the payment of it. Bankrupt's property. Suppose the bankrupt to have carried on the business of a factor, and to have in his possession at the time of the bankruptcy, stock placed in his hands for sale, have the assignees any rights in respect of such property? Suppose a bill of exchange, or other effects, to be placed in the bankrupt's hands for How many justices of the peace must be jurisdiction of the Quarter Sessions? present to hold a Court of Quarter Sessions? Can any, and if any, which of the decisions at Quarter Sessions be reviewed or appealed from, and in what manner? Before what court must a murder committed at sea be tried? What is a nuisance, and how redressed? and is the remedy the same for all nuisances? |