520 New Bills in Parliament.-Law Tracts. and gaol delivery to be hereafter issued in the said counties of Essex, Kent, and Surrey, shall have the same power and jurisdiction to enquire of, hear, and determine all offences by virtue of such commissions which they would have had if this act had not been made: provided nevertheless, that they shall not be required or obliged to inquire of, hear, and determine, or to deliver the respective gaols or prisons of the same last-mentioned counties of any person or persons whose offence or offences is, are, can, or may be inquired of, dealt with, tried, and determined under and by virtue of the commissions of oyer and terminer and gaol delivery to be from time to time issued under the authority of this act. LAW TRACTS. EXTINGUISHMENT OF EXECUTOR'S DEBT. As to the effect of appointing a debtor to the office of executor, it has long been established by a series of decisions, that where there are assets sufficient to satisfy the testator's debts, such appointment is in law a release or extinguishment of the debt. The principle is, that a debt is merely a right to recover the amount by action; and as a sole executor cannot maintain an action against himself, nor a joint executor sue without 14. That it shall and may be lawful for the making the one who is indebted to the tesjustices of oyer and terminer and gaol delivery tator, a co-plaintiff, the action for the debt is to be named in and appointed by the commis- in effect suspended by the voluntary act of the sions to be issued under the authority of this creditor, and is consequently for ever gone act, to inquire of, hear, and determine any of- and discharged. This rule being considered fence or offences committed or alledged to purely technical, it was at one time contended, have been committed on the high seas, and that it could not apply to negociable instruother places within the jurisdiction of the Ad-ments, as a promissory note, &c., where by miralty of England, and to deliver the gaol of indorsement, the right of action might be Newgate of any person or persons committed to considered vested in a third person. But, or detained therein for any offence or offences however ingenious such reasoning might seem alleged to have been done and committed in the abstract, the Court decided against it's upon the high seas aforesaid; and all indict- admission in practice, on the ground, that the ments found and trials and other proceedings debt being effectually cancelled by the aphad and taken by and before the said justices pointment of the debtor to the office of exof oyer and terminer and gaol delivery shall be ecutor, an indorsement, even by the latter valid and effectual to all intents and purposes himself, could not set it up and make it a whatsoever; and that it shall and may be law-binding instrument. Freakley v. Fox, 9 B. & ful for the said justices of oyer and terminer and C. 130. gaol delivery to order and direct the payment of A distinction, however, is reasonably taken the costs and expences of such prosecutions in between a debtor, in the character of an exemanner prescribed and directed by the before-cutor to his creditor, and when he is only his recited act of the 7th of George 4. 15. Provided, that nothing in this act contained shall extend or be construed to extend to prejudice or affect the rights, interests, privileges, franchises, or authorities of the mayor, aldermen, and recorder of the city of London, or their successors, or the lord mayor or recorder of the said city for the time being, or to prohibit, defeat, alter, or diminish any power, authority, or jurisdiction which at the time of making this act the said mayor, aldermen, and recorder, or the said lord mayor or recorder for the time being, of the said city, did or might lawfully use or exercise. 16. That this act shall cominence and take effect from and after 17. That this act may be amended or altered by any act to be passed in this present session of Parliament. 18. That this act shall be deemed and taken to be a public act, and shall be judicially taken notice of as such by all judges, justices, and others without being specially pleaded. administrator; inasmuch as the latter derives his authority, not like the former, from the will itself, but solely from the appointment of the ordinary. The former being the act of the creditor, extinguishes the debt; the latter being the act of law, does not. Wankford v. Wankford, 1 Salk. 298; Nedham's case, 8 Coke, 134; Cheetham v. Ward, 1 B. & P. 630. The remedy, however, will be suspended whilst the relation of administrator continues, and will only be available against the personal representatives of such debtor. Thus, if the obligor of a bond takes out administration to the obligee, and dies, the administrator de bonis non of the obligee, may maintain an action for the debt against the executor of the obligor. See Hudson v. Hudson, 1 Atk. 461. In all cases too, as between such debtor, executor, and the creditors of the testator, it has been thought, that such debt is to be regarded as legal assets. But this may admit of doubt. It is clear, however, that equity regards, not only the rights of creditors, but also of legatees, or even the next of kin: the debt being there considered as forming part of the testator's general assets, and as such, to be accounted for by the executors collectively. Carey v. Goodwyn, 3 Bro. C. C. 111; Berry v. Usher, 11 Ves. 87. Before we notice the case of Stiles v. Guy, The Property Lawyer, No. XXIX. 7 L. O. 236, it only remains to observe, that it is not competent for a person to prove a will without making himself responsible for the due performance of the trusts thereby created. 521 | term of years, or greater estate determinable on one or more life or lives, a memorial of the date of every such deed, bond, instrument, or other assurance, of the names of all the parties, and of all the witnesses thereto, and of the person or persons for whose life or lives such annuity or rent charge shall be granted, and of the person or persons by whom the same is to be beneficially received, the pecuniary consideration or considerations for granting the same, and the annual sum or sums to be paid, shall be enrolled in the High Court of Chancery, in the form or to the effect following, with such alterations therein as the nature and circumstances of any particular case may reasonably require; otherwise every such deed, bond, instrument, or other assurance, shall be null and void to all intents and purposes." Now Stiles v. Guy was decided in equity, and the bill must necessarily have been filed by parties beneficially interested. Here all the executors proved, "and were bound therefore to discharge the duties they voluntarily imposed on themselves, and not having called in the money as soon as convenient after the death of the testator,' but having suffered it to remain in the hands of Guy, upon personal security, they did not do that which their situation imperatively required." Lord Lyndhurst adds, "this case does not rest upon general reasoning, but appears to me to have been in principle decided by the case of Muck- The form of memorial given in the act conlow v. Fuller, 1 Jacob. 198." On reference to tains eight columns, for the following heads : Lord Eldon's judgment in that case, it will be 1st, date of instrument; 2d, nature of instrufound to establish two points. First, that ment; 3d, names of parties; 4th, names of where personal property is bequeathed to ex-witnesses; 5th, name or names of person or ecutors as trustees, the probate of the will is an acceptance of the trusts. Secondly, that the usual indemnity clause does not exonerate one trustee from a loss, occasioned by a debt due from another having been suffered to remain outstanding. It appears, therefore, that the case of Stiles v. Guy, affords in itself a clear proof of being in conformity with all prior decisions on this subject. MANCUNIENSIS. PROPERTY LAWYER. MEMORIALS OF ANNUITIES AND ENROLMENT. persons by whom annuity or rent-charge to be beneficially received; 6th, person or persons for whose life or lives the annuity or rent-charge is granted; 7th, consideration, and how paid; 8th, amount of annuity. These several heads will be briefly considered in the above order. As to the 1st. If there are several instruments differing in their dates, the date which each instrument purports to bear must be inserted. Buckeridge v. Flight, 3 Bing. 215. If however they are of even date, a mere reference will be sufficient. 2d. It has been decided by the Court of King's Bench, that the instrument need not be described in technical language. The reason of this is well explained by Mr. Justice Bayley, in the judgment he delivered in Browne v. Lee, 6 B. and C. 689. "The enacting clause does not in terms require the nature of the instrument to be described; but the schedule which follows the clause contains several columns, one of which is headed, 'nature of the instrument,' and under that head there is given an instance of the description of the nature of the instrument which the statute requires, viz. THE legal rate of interest is at present fixed in this part of the United Kingdom at £5. per cent.; but as in annuity transactions there is a risk, they are not bound by the usury laws. It is not however necessary to enquire here whether the grantor or grantee in such cases is the most benefited. But it is obvious that lease and release,' 'warrant of attorney to the grasping man is thus enabled to demand a confess judgment,' bond in penalty.' The most exorbitant rate of interest, which in some statute imposes no obligation on the parties to cases no doubt necessity compels the borrower describe the property on which the annuity is to pay. In order therefore that fraud may be secured. The object of the statute was, that prevented as far as may be, and that the needy such a description should be given as to enable inay be somewhat guarded from oppression, a party on looking at the memorial to claim a there are (in some instances) certain forma- copy under the 5th section. The words 'grant lities prescribed, which it is requisite to ob- of an annuity,' are as true a description of the serve. It is intended to examine, first, the pre-nature of an instrument by which an annuity sent law respecting the memorializing of annuities, which is contained in the 53 Geo. 3, c. 141, § 1, 2, 3 and 7; 3 Geo. 4, c. 92; and the 7 Geo. 4, c. 75, and the decisions thereon. The 2d sec. of the 53 Geo. 3, enacts, "That within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity or rent-charge shall, from and after the passing of this act, be granted for one or more life or lives, or for any is secured, as the words 'lease and release.' They convey as much information as the legis.. lature intended to be conveyed by the description of the nature of the instrument, within the meaning of this act of parliament." And see further, on this point, Cane v. Lovelace, 2 B. and Ad. 767, and the cases there cited. 3d. In the case of Flight v. Buckeridge, 3 Bing. 215, it was contended that the name of a party who had not executed the deed at 522 The Property Lawyer, No. XXIX. given in the act is simply 100%. a-year, the statement of the amount is the only thing required. It should be remarked also, that by the 55 G. 3. c. 184, "the memorial to be registered or enrolled, pursuant to act of parliament, of any deed or instrument, deeds or instruments, whereby any annuity shall be granted or secured in England, shall be charged with a duty of 17.; and for every piece of vellum, parchment or paper, upon which any such memorial shall be written, after the first, a further pro the time it was memorialized, ought not to 4th. The fourth column is for the names of It would not have been worth while, even thus succinctly, to have reviewed the present law respecting the form of the memorial, if it had not been observed by every one acquainted with the subject, that more mistakes are in the habit of occurring from ignorance or inattention in this particular, than in any other part of an annuity transaction It may be useful, in conclusion, to take a brief review of the cases in which an enrolment of the annuity deed is required It will be recollected, that in the 2d section, the annuity mentioned, is one granted for one or more life or lives, or for any term of years, or greater estate, determinable on one and 2dly, E. H. and G. F. alone. As doubts or more life or lives." Hence, an annuity for arose in the first of these instances, whether a definite terin of years, in tail, or in fee, need the initial letter of the witnesses' names would not be enrolled. And by the 53 G. 3. c. 141. be sufficient, it was enacted and declared by § 10, it is enacted, " that this act shall not exthe 7 G. 4, c. 75," that by the said act of the tend to Scotland or Ireland; nor to any an. 53d year of the reign of his said late Majesty, nuity or rent charge, given by will or by marno further or other name or names of the sub-riage settlement, or for the advancement of a scribing witness or witnesses to any deed, bond, instrument or other assurance, whereby any annuity or rent charge is or may be granted, is or are required in the memorial thereof, besides the names of all such witnesses as shall appear signed to the attestations respectively of the execution of such deed, bond, instrument, or other assurance; and so the said act shall be deemed, construed and taken." And to clear up the doubts which arose as to the 2d of these instances, it was enacted and declared, by the 3 G. 4. c. 92," that by the said act of the 53d year of the reign of his late Majesty, no further or other description of the subscribing witness or witnesses to any deed, bond, instrument or other assurance, whereby any annuity or rent charge is or may be granted, is required in the memorial thereof, besides the names of all such witnesses; and so the said act shall be deemed, construed, and taken." The 5th column presents no difficulty. as it merely requires the name or names of the person or persons beneficially entitled to the rent charge. 6th. It is not requisite to insert more than the name of the cestui que vie. Barber v. Gamson, 4 B. & Ald. 281. 7th. It is requisite to mention the pecuniary consideration actually paid, and nothing more. And see the form in the act. 8th. The amount of the annuity or rent charge, must be set out; and, as the example child; nor to any annuity or rent charge secured upon freehold or copyhold, or customary lands in Great Britain or Ireland, or in any of his Majesty's possessions beyond the seas, of equal or greater annual value than the said annuity, over and above any other annuity, and the interest of any principal sum charged or secured thereon, of which the grantee had notice at the time of the grant, whereof the grantor is seised in fee simple or fee tail in possession, or the fee simple whereof in possession the grantor is enabled to charge at the time of the grant, or secured by the actual transfer of stock in any of the public funds, the dividends whereof are of equal or greater annual value than the said annuity; nor to any voluntary annuity or rent charge, granted without regard to pecuniary consideration or money's worth; nor to any annuity or rent charge, granted by any body corporate, or under any authority or trust created by act of parliament." Under the above exemption, "of any voluntary annuity, granted without regard to pecuniary consideration or money's worth," it has been decided, that no annuity need be enrolled, for the sale of which, the consideration is not 66 money, notes, a bill or bills, or goods," thus enumerating the only things which are considered in the light of money or money's worth. See 3 B. & Ad. 602. X. A. Practical Points of Generul Interest, No. LX.- Parliamentary Returns. 523 PRACTICAL POINTS OF GENERAL | Majesty's Government, within the last twelve months, praying for an alteration or removal INTEREST. No. LX. of the Assizes: Cornwall. THE following case, we believe, decides a new Penzance point. Slander. The declaration stated that the Preston defendant spoke of the plaintiff the following Preston words :-"You are a common thief, and I can Liverpool prove you one." From the cross examination of the plaintiff's witnesses, it appeared that Lancaster. Suffolk. 24th Jan. 1834. 15th Oct. 1833. 28th Aug. 1833. 21st Sept. 1833. certain brokers were in the habit of agreeing Beccles. Woodbridge, and 21st Sept. 1833. together to attend sales by auction, and that one of them only should bid for any particular article, and that after the sale they should have Ipswich a meeting, consisting of themselves only, at Horsham Sussex. 15th Oct. 1833. Wilts. 17th Jan. 1834. West Riding of Yorkshire. 3d Oct. 1833. 7th Oct. 1833. Ossett with Gawthorne bought at the auction, and that the difference The County 15th Oct. 1833. 7th Nov. 1833. 6th Dec. 1833. 9th Dec. 1833. 6th Dec. 1833. 6th Dec. 1833. Glamorgun. 6th Feb. 1834. 5th Feb. 1834. The parties do not pray to be heard, but leave the matter for the consideration of his Majesty in Council. These matters have been brought under the consideration of the Lords of the Council, but as yet no definitive measures have been taken. SUPERIOR COURTS. Exchequer of Pleas. Gurney, B., (in summing up).-Owners of goods have a right to expect at an auction that there will be an open competition from the public; and if a knot of men go to an auction upon an agreement among themselves of the kind that has been described, they are guilty of an indictable offence, and may be tried for a conspiracy. His Lordship left it to the Jury to ARREST WITHOUT REASONABLE say, whether the defendant, by the words he spoke, meant to impute felony to the plaintiff. Verdict for the defendant. Levi v. Levi, 6 C. & P. 239. PARLIAMENTARY RETURNS. ASSIZES REMOVAL. The following is the substance of the return of the number of Petitions or Memorials addressed to the Privy Council, or to his AND BABLE CAUSE.-DEFENDANT'S COSTS. PRO What is sufficient to entitle a defendunt to his costs, under the 43 G. 3. c. 46, s. 3, on account of an arrest for more than the plaintiff could reasonably and probably expect to recover. This was an action to recover a sum of 331. Ss. 9d., for which amount the defendant was held to bail. When the time of trial approached, the cause was referred to a barrister, and he found that a sum of 37. 98. only was due from the defendant to the plaintiff. On this state of facts, the defendant applied 524 Superior Courts: Exchequer of Pleas. for a rule nisi to obtain his costs, under the 43 G. 3. c. 46. § 3, on the ground of the plaintiff having held the defendant to bail for a larger sum than that which he had recovered, without reasonable or probable cause. He Per Curiam-None of the affidavits on behalf of the plaintiff shew that the demand of the plaintiff was reduced by a set-off. It is true that the defendant must shew, in support of his application, that he has been arrested without reasonable or probable cause. was arrested for 33l. 8s. 9d.: he ultimately recovered only the sum of 37. 9s. That is sufficient to throw it on the plaintiff to shew how he came to arrest the defendant for a sum so much larger than that to which he entitled himself in the result of the proceeding. This he does not do. He gives no statement of his account, or of the items of his claim. As he is the only person who can be expected to give such an explanation, and he not having done so, he must be taken to have arrested the defendant without reasonable or probable cause. Rule absolute.-Summers v. Grosvenor, M T. 1833. Excheq. therefore be discharged, and with costs; for Rule discharged, with costs.-Stone v. Butt, H. T. 1834. PEREMPTORY UNDERTAKING. JUDGMENT AS IN CASE OF A NONSUIT.-ENTITLING How an affidavit should be entitled in support Arrest of the plaintiff, where he appears in person, will entitle him to set aside on payment of costs an absolute judgment as in case of a nonsuit. In this case the plaintiff, who appeared in person, had brought two actions against two defendants named Evans and Pitt. Not having proceeded according to the course and practice of the Court, judgment as in case of a nonsuit was obtained against him. He gave a DISCHARGING DEFENDANT OUT OF CUSTODY. peremptory undertaking, but not proceeding -HOLDER OF BILL OF EXCHANGE. A person having a right to a bill of exchange which is held by an indorsee of it in trust for his use, may still make an affidavit, on which a defendant may be held to bail. On shewing cause against a rule nisi for de- | livering up the bail bond to be cancelled, and compelling the plaintiff to pay the costs of the application, on the ground of the bill of exchange on which the defendant had been arrested not being in the hands of the plaintiff at the time when the arrest took place. In explanation of this fact, it was shewn by the plaintiff's affidavit, that the bill in question, of which the defendant was the acceptor, had been indorsed to him; that being indebted to Messrs. Poinder & Co., he had indorsed it to them. When it became due it was not paid; and the affidavit of debt on which the arrest was effected was made by the plaintiff, the bill not being at that moment in his hands. But when it became requisite to have it in order to enable the plaintiff to declare, he sent for it to Messrs. Poinder & Co., and they immediately let him have it. They were therefore only acting as trustees. In support of the rule it was contended, that as Messrs. Poinder & Co. had applied to the defendant for payment of the bill, he was in danger of being doubly sued for the same debt, and which he was at all times ready to pay. Per Curiam.-It might at first appear that the transaction was suspicious; but the explanation now given is perfectly satisfactory, as it appears that Messrs. Poinder & Co. were only holding the bill as trustees of the plaintiff, and that when for the purposes of this action it became necessary that the plaintiff should have the bill in his possession, it was delivered up to him. The present rule must to trial pursuant to it, judgment absolute was on. contended, first, that there ought to have been Per Curiam.-We think the affidavit proper- M. T. 1833, Excheq. In this case a rule nisi was obtained for the purpose of setting aside a cognovit, judgment thereon signed, and all subsequent proceedings had, on the ground that at the time the cognovit had been given he was under duress, and had not the benefit of an attorney's pre |