Correspondence. Superior Courts; Vice Chancellor's Court. given to Sir Thomas Egerton. He died on August 4th, 1598. His first wife was Mary, daughter of Peter Cheek, and sister to Sir John Cheek, Knt., by whom he had a son, Thomas, who succeeded him in his title, and was afterwards created Earl of Exeter. His second wife was Mildred, daughter of Sir Anthony Coke, of Giddy Hall, in Essex, Knight, who was preceptor to Edward VI, and by her he had several children, of whom 475 the eldest was the famous Sir Robert Cecil, who, even in his father's lifetime, held the important office of Secretary of State. Soon after the accession of James I, he was created Baron of Essendon in Rutlandshire, (May 13th, 1603) then Viscount Cranbourn, in Dorsetshire, (August 20th, 1604) being the first Viscount who bore a coronet, and lastly Earl of Salisbury, (May 4th, 1605.) The 7th Earl was created Marquess, 24th August, 1789, by George III. See also the Marquess of Exeter. Communications are requested to be addressed to “F. S. A.," care of the Editor. SELECTIONS FROM CORRESPONDENCE. LEGAL EXAMINATION DISTINCTIONS. To the Editor of the Legal Observer. Sir, Allow me to express my dissent from the opinions of your correspondent, R. W. S., in his letter at p. 393. Did I for one moment entertain an idea in common with him that the distribution of legal honours, which I have He imagines that the steady readers would not pass their examinations so brilliantly as those who adopted the cramming system. But, Sir, I apprehend that no lengths to which this latter practice can be pushed, will ever put a candidate for distinction upon an equal footing with one who has read steadily during his clerkship, and at the same time has not neglected the practical parts of his profession. The utmost success of the forcing system would be to enable its votaries to pass, and escape the serious disgrace of a rejection, but it would be far from forwarding any one who might aspire to the prize due to superior merit. This can never be borne off by merely superficial attainments. "Cramming" is much resorted to at the Universities, but it has, I believe, never availed those who employed it any further than tamely helping them through their examinations, and in no ways facilitating the taking of a degree; while at these ordeals the particular branch upon which the student will be examined, is much better known beforehand than at ours. But I do not suppose that if any prizes should be ultimately decided on, the examinations will be conducted precisely as at present; indeed it is not fitting that they should. I trust that other branches will be added to those at present selected. I do not wish to throw hardships in the student's way, but I really think that some plan must be adopted, to prevent the respectability of the profession being altogether overturned by that swarm of men who daily seek admittance to it, actuated solely by, and perhaps scarcely capable of entertaining any other feeling than the one prevailing, greediness of gain. A heavy blow will be struck at the respect ability of the law, should the local court bill be passed. Beer-house attorneys who foster litigation, and dispense law as a hawker does his wares, at the lowest charge, will be sadly increased, and I do say that any method which will tend to resist these attacks, and preserve the respectability of the profession, will be indeed a boon. I would see the study of our laws elevated far above that avaricious spirit which induces so many to commence it, and I know no more effectual method of attaining this end, than by enlarging the minds of those who seek it, by the studious perusal of the classics and of the history of their fellowcreatures, and by making a knowledge of the principles of law an indispensable branch of their attainments. EMULUS. SUPERIOR COURTS. Vice Chancellor of England. PRACTICE.-SUPPRESSION OF DEPOSITIONS. The Court will not permit the parties in a cross cause to examine witnesses in such cuuse after publication in the original cause has passed, and if any witnesses are so examined their depositions will be suppressed. In this case, original and cross bills had been filed, and a motion was now made to suppress the depositions taken in the cross cause on the ground that the witnesses had been examined subsequently to publication passing in the original cause. It appeared, 476 Superior Courts: Vice Chancellor. that previous to the witnesses being examined notice had been given on the part of the plaintiff in the original suit, that objection would be made to such examination, and that in case it was persisted in, application would be made to the Court to have the depositions suppressed. The plaintiff notwithstanding, proceeded with the examination, and hence the present motion. Stuart and Parry said, that if the course which had been pursued in this case were sanctioned, the defendant in the original suit might always wait until he had seen the plaintiff's case, and then shape his evidence so as to meet that case, a practice which the Court never permitted. Here the party had full warning, that if he went on in defiance of the usual practice, the present application_wolud be made, but he chose to proceed, and must now bear the consequences. Even before the Master, where much greater lattitude was allowed in the examination of witnesses, a party whose evidence had been taken before the examination, could not be examined again before the Master, without the special leave of the Court, and the Court seldom shewed a disposition to favor the practice. Sawyer v. Bower, 1 Bro. C. C. 388; Conethard v. Hasted, 3 Mad. 429; Purcell v. Mc Namara, 17 Ves. 434. Where a surviving partner, who is also executor, allows the capital of the deceased to remain in the business, and pays a portion of the profits less than his late partner, in his life, would have been entitled to, and also 5l. per cent. interest upon the capital of his partner and testator, to the widow and children. Held, notwithstanding that the children of the deceased partner are entitled to inquiries and accounts respecting the state of the property at, and subsequent to, the death of their parent, before the Court will decide upon the exact proportion to be accounted for. THIS was a bill for an account, and for payTeed and Rogers, contrà, insisted that great ment, of seven-tenths of the profits of the injustice would be done to the defendant if business of a picture-frame maker. The dethe motion were granted, for his case had in fendant was the surviving partner, and one of like manner been exposed, and he had relied the executors, of Gerard Willets, who died in upon his case being presented to the Court in 1829. The plaintiffs were children of the the form which under advice he had adopted. testator, Gerard Willets, who, in 1815, entered It was impossible that any improper advantage into co-partnership with the defendant Blandcould have been taken of the circumstance of ford, and another person, (since deceased) for publication having passed, for it was sworn by a term of twenty-one years, in the business of the defendant's solicitor, that he had never picture frame making. By the articles, the seen the depositions in the original cause until defendant was to be entitled to three-tenths, after the evidence was completed in the cross and the testator to seven-tenths, of the profits. cause. The plaintiff also in the original suit It was provided, that in the event of the death knew that the defendant was going on ex- of the testator, the defendant was to be at amining witnesses, and with this knowledge, liberty to carry on the business for the rehe himself examined witnesses in the cross inainder of the term, retaining a third of the cause, about whose deposition nothing was testator's capital, and accounting for, or paysaid. They cited Scott v. Algood. Pract. Peg.ing, a third of the profits to the family of the p. 87. Norcutt v. Worsley, 1 Chanc. Ca. 237. The Vice Chancellor said he must make the order according to the notice of motion. Lord Thurlow had made an order under similar circumstances, and he thought the rule laid down in the case before his lordship, was the proper one. Where a party puts upon the files of the Court a bill, or anything else which ought not to be there, the course of the Court was to order it to be taken off the file. So where a supplement bill introduced new matter, seeking to alter an original decree, or where leave was given to file a bill, containing Mr. Sutton Sharpe, and Mr. Bichner for certain statements, and matters of a different the plaintiffs, submitted that the defendant description were introduced, the same course was liable to account for, and pay, the profits was pursued. Although no actual impro- of the business, in the same proportion as priety might be intended, the practice of the they were payable during the testator's lifeCourt was to order the suppression of pro- time. The Court would not allow a surviving ceedings when improperly taken, and there-partner, who also happened to be exe fore such portions of the depositions must be cutor, to trade with his testator's capital. suppressed as related to matters in issue in Mr. Temple and Mr. Bacon, for the the original cause. latter, executing articles of partnership, and giving his bond for the amount of capital which was allowed to remain. The will was proved by the executors; an appraisement of the stock in trade was made by them; the proportions of the capital were ascertained as between the defendant, the widow, (who was also executrix) and children. The whole capital was allowed to continue in the business, a third of the profits and 57. per cent. interest on the remaining capital being paid to the testator's family. Superior Courts: Vice Chancellor; Queen's Bench. 477 defendant, argued that he was entitled to treat | nership, the amount of the respective capitals, the capital, subsequently employed in the and many other particulars. I cannot say trade, as a loan out of the partnership funds. that there is any rule established which is No loss whatever had been sustained by this mode of dealing with the capital. A settlement had been come to by the appraisement being made, and the Court ought to declare that it was sufficient, although there had been an omission to give the bond as directed by the articles. The following cases were referred to:Wedderburn v. Wedderburn, 2 Keen, 722; 4 M. and C., 41; Cook v. Collingridge, 1 Jacob, 607; Crawshay v. Collins, 15 Ves. 218; 2 Russell, 325; Brown v. De Taslet, 1 Jacob, 284; Dimes v. Scott, 4 Russell, 195; Featherstonhaugh v. Fenwick, 17 Ves. 298. Wigram, V. C.-It seems to me that in this case I have no discretion, but that I am bound to apply the established rule of the Court, namely, that if a person takes upon himself to embark the property of his cestuis que trust in the risks of trade, he is bound to account for the profits made by that trade, if it has been carried on for his own benefit. The question, then, is, are there any and what circumstances which take Blandford's case out of the general course of proceeding, which is, that there shall be a sale of the property of the deceased partner at the time of his death, or as soon after as may be. It has been asked, if the testator chose to make his surviving partner his executor, how could he in that situation adjust his own rights and those of his cestuis que trust in a better manner than he has done? The obvious answer is, that if he chose to stand upon his rights as a continuing and surviving partner, he was not bound to join in taking out probate of the will. By becoming executor he placed himself under a positive incapacity to deal with the property for his own benefit. Having, however, placed himself in this situation, he might have brought the widow and children-the latter being in fants, and the former concurring in all that he was doing before the Court in an amicable suit, and have had the interests of himself and all parties set right. Cases of this kind are not to be judged of by the result, which may or may not be successful. The next question is one of more doubt and difficulty, namely, as to the proportion of profits which the defendant is to account for to the testator's family. In Crawshay v. Collins, 15 Vesey, Lord Eldon felt a doubt as to this. He kept the question open, directing an account to be taken of the capital employed in the concern at two periods of the business. The very fact of Lord Eldon's thinking an enquiry necessary as to the capital employed from time to time, was a decision by him that such amount, when ascertained, might be a material consideration in settling the proportion in which the profits should be divided and accounted for. No rule has been laid down in any of the cases, deciding that the surviving partner is liable in exactly the same proportions. What they are to be, is generally to be ascertained after an enquiry as to the circumstances of the part alike applicable to all cases of this description. No one can read with attention the elaborate judgments of Lord Eldon in Crawshay v. Col lins, and Cook v. Collingridge, without being satisfied that his mind saw the impossibility of subjecting cases so various as those of trading partnerships to any universal rule. Upon the whole, I ain bound by authority to hold, that the nature of the trade,-the manner of carrying it on,-the capital employed, the state of the account between the surviving and the deceased partner at the death of the latter, and the conduct of the parties at that time, may materially affect the rights of the parties, and I must therefore have more information than I now possess before I can safely and finally dispose of this case. His Honour then directed that there should be enquiries and accounts taken, first, of the testator's estate as against his executors; secondly, of the dealings and transactions of the partnership since the last settlement in the lifetime of the deceased; thirdly, of the amount of capital belonging to each partner at the time of the death of Willets; fourthly, of the stock-in-trade, and the value of it, including the value of the good-will, which should be treated as part of the stock-in-trade; fifthly, of what was due to Willets at his death exclusive of his share of the capital and stockin-trade; sixthly, of the amount of capital em ployed from time to time in the business since Willets' death, and by whom, and in what way such capital was supplied; seventhly, of the profits made in every year during the same time; eightly, of all sums paid out of the business during the same time by either party, and on what account, computing the interest at 57. per cent. on the sums so paid out, reserving the consideration of whether it would be proper to allow such interest; ninthly, an enquiry respecting the alterations alleged to have been made in the premises in which the business was carried on; and lastly, an enquiry with respect to the nature of the business, and how far it depended on the skill of the respective partners. Willets v. Blandford, H. T. 1842. Queen's Bench. [Before the four Judges.] MUNICIPAL CORPORATION.-COMPENSATION. The Lords of the Treasury have no jurisdiction to decide on the claim of a dismissed officer of a corporation to remuneration under the Municipal Corporation Act, but can only decide as to the amount. Where a claim is presented to a town council by which the right of the claimant to any compensation is denied, such total denial of a claim is an adjudication on the claim, and the claimant cannot after a lapse of six months treat such claim as admitted under 5 & 6 W. 4, c. 76, 8. 66. In this case a rule had been obtained 478 Superior Courts; Queen's Bench. calling on the defendants to shew cause amount at 601. a year, and directed a bond to why a mandamus should not issue to be prepared for that sum. The town council them, commanding them to execute under was ready to fulfil this award, but the applitheir common seal, a bond to Mr. Mourilvan, cant expressed himself dissatisfied with it, and conditioned for the payment of a sum of 76201. now asked for the full amount of what he had as compensation for his loss of the office of claimed, which he contended must be taken town clerk of the horough. The applicant as admitted, inasmuch as a total rejection of had claimed this sum from the borough, but any claim, was not an adjudicaion on a claim the town council at first made no adiudi- within the meaning of the act. This rule cancation on the claim, and the Lords of the Trea- not be absolute in form, if the town council sury on appeal to them, ordered the payhas determined that the claim to compensation ment of an annuity of 607 to Mr. Mourilyan. is not admissible, for such a determination canHe was not satisfied with the order, and ap- not be treated as an admission of the claim, plied to the Court under the 66 section of the nor can the rule be moulded differently if the 5 & 6 W. 4, c. 76. for on order for the pay-matter brought before them. Both these points Lords of the Treasury have rightly decided the ment of the original sum claimed, on the ground that the defendants had not, according to the provisions of that section, come to any decision on the claim within six calendar months after the same was presented, and therefore that it must be taken as admitted as therein provided. Mr. Kelly and Mr. Watson in Mich. term, 1841, shewed cause against the rule, which was supported by the Solicitor General and Mr. Whitehurst. Lord Denman, C. J., now delivered the judgment of the Court. "This was an application for a mandamus to be directed to the defendants to execute a bond, granting to one John Mourilyan, compensation for the loss of his offices in the corporation. It appeared that he had filled the office of town clerk, and had been removed from that office by the new corporation. He sent a claim for compensation in September, 1836, and he now claimed, that the full amount of compensation he thus demanded, should be allowed, on the ground that the claim must be taken as admitted, the town council not having adjudicated on it within six calendar months from the time it was presented. This was denied on the other side, and that raised the most material point for our decision. When the claim was sent in, a copy of it was prepared for the members of the town council, and a council was summoned in order to consider and determine on the claim. Mr. Mourilyan was not called on for any explanation of his claim, but the meeting took place, and in the result, the town council passed a resolution altogether disallowing any claim for compensation, reserving, however, the full right, in case the decision should be overruled, to investigate the statements on which the claim was founded. Soon after the resolution had been passed, it was communicated to the applicant, and he did not make it the subject of an appeal to the Lords of the Treasury until the 12th of March. After considering the matter, the Lords of the Treasury came to the conclusion that the applicant was entitled to compensation, and they settled the that it must be considered that the town have been argued, and we are of opinion council did determine on the matter of the claim in September, 1836. That decision emand whatever may be thought of the extent of braced the questions of right and of amount, the jurisdiction of the Lords of the Treasury, it is clear that the town council had a right to consider and determine both these questions. The question of amount must in one form of the decision of the question of right be involved in that decision, and the town council decided that the applicant asked for that to which he was not entitled. The application is in the first instance to be made to the town council; but it is unreasonable to assert that if that body denies the right of the applicant to have anything in the way of compensation, it determines nothing in respect of his claim, and that the claim is afterwards, by the operation of time to be considered as admitted, or on the other hand, that if the council denies the right, the Lords of the Treasury are still to be called on to determine the amount, so that if the council should turn out to be wrong as to the right of claiming compensation, it should be considered that in point of form the decision had been the other way. We do not so read the statute. The language of the section shews that the claim must come before the council in the first instance. If the council is in favour of the right, it must settle the amount, and in that case the neglect to consider the amount would bring the matter within the provisions of the section; but the refusal to recognize the right disposes at once of the whole. The Solicitor General was under these circumstances, driven to contend that the town council had no right to decide, except on the amount. But there is no foundation whatever for that argument, and on that ground, therefore, the rule cannot be absolute in the terms prayed. The next question we have to consider is whether the Lords of the Treasury had any jurisdiction to decide on the question of right. In the cases of Warwich and Newbury, we held that they were not entitled to that jurisdiction; that their jurisdiction only extended to the question of amount, and that the parties could not by the mere fact of such a decision by the Lords of Superior Courts: Queen's Bench Practice Court.-Chancery Sittings. the Treasury, be prevented from afterwards bringing that question of right before the Court. We think that the same limits exist as to the power of the Lords of the Treasury in both parts of the section As we are of opinion that the Lords of the Treasury have not this power to determine the question of right, we think that the writ may go to the town council, to command generally that compensation may be made to the applicant, and to that command a return must be made, bringing the question of right before us; or if the town council should declare a readiness to agree to secure the sum awarded by the Lords of the Treasury, the applicant may, if he should be so advised, apply to the Lords of the Treasury to re-consider the question of amount. The rule will, therefore, be absolute in the manner now stated. Rule absolute accordingly.-The Queen v. The Mayor and Corporation of Sandwich, H. T. 1842. Q. B. F. J. Where in such a case, the judgment having been signed by the defendant, the attorney of the defendant refused to attend a peremptory appointment to tax such costs, it was held that the master might tax them at the nominal sum of 38. 4d., on tender of 479 quently replied, delivered the issue, and tried the cause as being an undefended cause. Hoggins now shewed cause, and urged that the defendant had acted erroneously throughout the whole transaction, and the plaintiff had only adopted such a course as his interests demanded. Knowles, contrà.-The judgment of non pros had not in fact been struck out of the book, and the plaintiff had gone too far in delivering the issue, and proceeding to trial. Williams, J.-This is a strict point of practice; the Judge's order meant to include merely the costs of the judgment, and those consequent on setting it aside, and the defendant was only entitled to them. The question is, whether the order of my brother Wightman was complied with in giving the peremptory notice of taxation, and tendering the costs which the Master allowed the defendant in his absence? It seems to me that what was done was sufficient. I consider that the order of the Judge did in fact set aside the judgment, and that the act of striking it out would be properly the act of the defendant's attorney, for which he would be allowed costs. I think, therefore, that the Judge's order was complied with by the plaintiff, and that his subsequent proceedings were regular. Rule discharged, with costs. Christie v. Thomson, H. T. 1842. Q. B. P. C. CHANCERY SITTINGS, Before the Master of the Rolls. AT WESTMINSTER. 16 ..18 .... 20 21 ..... 22 23 25 26 27. Saturday. which the plaintiff might treat the judg-Friday...April 15 ment as being set aside. Knowles had obtained a rule for setting aside the issue, notice of trial, and verdict in this case. It was an action on a bill of exchange, and the defendant having pleaded, the plaintiff omitted to reply in proper time, and a judgment of nan pros was, in consequence, signed by the defendant. Upon the application of the plaintiff to Wightman, J., at chambers, Tuesday an order was made to set aside the judgment on payment of costs; and the order having been drawn up, the defendant was served with an appointment to tax his costs. When before the Master, the defendant claimed the whole costs of the cause, to which he contended he was entitled under the Judge's order, but the Master refused to tax to him more than the costs of signing judgment, of the application to set it aside, and of striking it out of the book. To this the defendant refused to assent, but upon application to the learned Judge he declared that his intention coincided with the view taken by the Master. A peremptory appointment to tax was therefore served upon the defendant's attorney, which he refused to attend, and the Master taxed his costs in his absence, at the nominal sum of 38. 4d. This sum was tendered to him, but he refused to accept it, and the plaintiff's attorney subse Friday. Tuesday Pleas, Demurrers, Causes, 28 Motions. 29 ... 30 3 4 5 .... o{ ...... 7 Pleas, Demurrers, Causes, Motions. Pleas, Demurrers, Causes, 9 Motions. AT THE ROLLS. 10{ Short Causes after swearing in the Solicitors. Short Causes, Consent Causes, and Consent Petitions, every Tuesday at the Sitting of the Court. |