540

Superior Courts: Vice Chancellor; Rolls.

SUPERIOR COURTS.

Wice Chancellor's Court.

ACT OF PARLIAMENT.-CONSTRUCTION.

The words of a clause of an act of Parliament clearly extend the jurisdiction of the Court; yet the Judge acting upon the authority of the Lord Chancellor, refuses to exercise the enlarged jurisdiction, on the ground that the Legislature did not intend the act to have such an effect.

Mr. Cooper made an application under the act 2 and 3 of W. 4, c. 33a, for a writ of subpœna upon a defendant residing in Scotland, the property which was the subject of the suit being situated in this country. It was his duty to state, that applications of nearly a similar nature had been refused by the Lord Chancellor, who did not dispute the jurisdiction of the Court under the act to issue process into Scotland, when the subject matter was situate in England. As his Lordship was of opinion the Court possessed the jurisdiction under the act, his Honor could not refuse the present application.

The Vice Chancellor, after looking into the act, said, it was manifest that the term "Great Britain," which was made use of throughout the act, meant Scotland as well as England; but nevertheless, as the Lord Chancellor had withheld his consent to motions of this sort, he could not grant the application.

On a subsequent day, his Honor addressing Mr. Cooper, said, he had seen the Lord Chancellor, and conferred with him on the course to be pursued with regard to the application made to him yesterday, to issue process into Scotland under the late act. His Lordship still remained of opinion that the words of the act included Scotland within the jurisdiction of the

a An act to effectuate the service of process issuing from the Courts of Chancery and Exchequer in England and Ireland respectively.

By the first section, it is enacted, that it shall be lawful for the Courts of Chancery and of Exchequer in England respectively, if they shall so think fit, upon special motion of the complainant or complainants in any suit which has been, or shall be instituted in such Courts respectively, concerning lands, tenements, or hereditaments, situate or being within that part of the united kingdom called England or Wales, to order or direct that service in any part of the united kingdom of Great Britain and Ireland, and in the Isle of Man respectively, of any subpoena or subpœnas, letter missive or letters missive, and of all subsequent process to be had thereon, upon any defendant or defendants in such suit, then residing in such part of the said united kingdom, or Isle of Man, in which he, she, or they shall be so served, shall be deemed good service, &c. upon such terms and in such manner and at such time as to such Courts respectively shall seem reasonable, &c.

Court; but that as it was never the intention of
Parliament to extend the jurisdiction of the
Courts of Chancery, or of the Exchequer in
England or Ireland to Scotland, the order
ought not to be made. Such being the opinion
of the Lord Chancellor, his Honor felt himself
bound by it, and could not grant the applica-
tion. Mr. Cooper said, that a misunderstand-
ing seemed to exist with regard to the precise
nature of the motion he made. He had not
asked for an order exactly similar to that re-
fused by the Lord Chancellor; his motion was
only for a subpoena; the motion refused by the
Lord Chancellor was for an attachment. He
did not anticipate any objection, as the Court
was aware subpoenas had been issued against
individuals at Paris and elsewhere, without
the jurisdiction. The Vice Chancellor said
the subpoena was only an antecedent process,
and admitted the principle of interference, as
much as the issuing an attachment, and that
was what the Court wished to avoid. The
matter therefore must remain until the act was
amended by the Legislature.
Anonymous, Feb. 1, 1834.

A question of great importance to the public, with reference to the laws regulating the trade of pawnbrokers, arose and was decided in the suits, of which so much only is reported here as relates to that question.

From the year 1801, to 1819, one Armstrong had carried on the business of a pawnbroker in London, in his own name, and without having communicated to his nearest relations, that any other person had an interest in the concern. He died in 1819, and his widow carried on the business in his name till 1828. In 1828, a bill was filed on the part of the children of Armstrong, against his widow and personal representative, and one Warner, in order to obtain the benefit of a trust deed, by which Armstrong had conveyed his property to Warner and another, upon the trusts thereon declared. Warner then for the first time claimed to have been a co-partner with Armstrong, in his business of a pawnbroker, under a deed dated in June 1810, purporting to be a partnership deed between Armstrong and Warner, wherein it was stipulated, that for a sum of 2000/. advanced by Warner to Armstrong, on account of the business, the former should receive interest at the rate of 10 per cent.; and that in case of future advances, he should received a proportional share of the profits of the business, which were calculated at 12 per

Superior Courts: Rolls.

cent. Several sums were indorsed by Armstrong on this deed, in acknowledgment of further advances by Warner, and the whole sum claimed by Warner against Armstrong's estate on this account, amounted to 4,2007. A cross bill was filed by Warner against the plaintiffs in the original suit, and against the widow, praying for an account of the alledged partnership assets; and upon Warner's decease, this suit was revived by his representatives.

541

public, and more especially for that class of persons whose necessities compelled them to resort to these tradesmen; but the salutary provisions of them would be entirely defeated, if the view taken of the acts in the Court of Exchequer could be supported.

The Master of the Rolls, in giving judgment, said, it did not appear to him necessary to make any observation on the proceedings in the Court of Exchequer upon the trial of the In that state of circumstances, upon the issues, or upon the proceedings in the Court hearing, the Master of the Rolls directed two of Exchequer Chamber on the bill of excepissues to a court of law to try the following tions, further than to observe, that the Lord facts: whether Warner was legally a partner of Chief Justice had expressed the unanimous Armstrong, and entitled to receive payment opinion of the Court, that the deed of 1810, of his advances at the rate of 10 per cent.; did not constitute an illegal contract of partand secondly, if he was to be so considered, nership, because it did not appear upon the whether he was entitled to receive the sum of face of it, that the name of one partner was 4,2007. These issues were tried in the Court to be kept a secret from the world, in contraof Exchequer. The ground upon which the vention of the provisions of the acts of parvalidity of the deed of partnership was there liament which apply to this subject. But the impeached, was, that it was in contravention of Judges have added, that if it was agreed the laws regulating the trade of pawnbrokers, between those parties, that the name of one which required that the pawnbroker's name of them should be kept a secret from the should be painted over the door a, that the world, then the partnership would be illegal license should be taken, and the duplicates of and void. The single consideration therefore pledges written in his name; and that all was, whether the Court was now prepared to proper facilities should be afforded to magis- decide the question as to the existence of a trates to exercise the right of search, and collateral agreement between those parties, other powers given to them, for the purpose that the name of one of them should be conof regulating this trade, all which provisions cealed, or whether the Court should apply were evaded by a a secret co-partnership. A to the aid of a jury before it comes to a conbill of exceptions to the direction of the Judge clusion. His Honor was most clearly of opinion, who tried the issues, was tendered before upon the whole matter, that at the time of the verdict; and the Jury, in pursuance of that execution of the deed of June 1810, it was agreed direction, found in favor of Warner upon between those parties, that the name of one both issues. The bill of exceptions afterwards of them should be kept secret from the world. came on to be argued in the Court of Exche-Acting therefore upon the opinion of all the quer Chamber, and Lord Chief Justice Denman, in delivering the judgment of that Court, stated it as their opinion, that the deed of 1810 was a legal instrument, inasmuch as there was nothing upon the face of it to show that the name of one of the partners was to be kept secret ; but he intimated at the time, that if there was a collateral agreement to keep the name of one of the partners secret, the agreement would be illegal and void.

The two causes now came on to be heard on further directions. Mr. Tinney and Mr. Wakefield contended, that the representatives of Warner were entitled to a declaration of the Court in the terms of the finding of the jury upon the issues, and to all the benefit they claimed under the partnership deed.

Mr. Bickersteth, Mr. Pemberton, and Mr. Lovatt insisted, that the Judges in the Court of Error, had mistaken the point to which their attention ought to have been directed. The deed of 1810, though upon the face of it a partnership deed, was a mere colourable instrument, and a screen for usurious contracts.

Judges in the Court of Exchequer Chamber, he ordered it to be declared, that the party seeking benefit under the deed of partnership, was not entitled to that benefit, and that the bill by which he claimed it should be dismissed with costs.

Armstrong v. Armstrong and Warner. Warner v. Armstrong, at Westminster, Jan. 21, 1834.

WILL.-CONSTRUCTION.

A testator bequeaths certain shares of the profits of his business to his widow, with a direction to admit one of his sons to one share on his coming of age; and in case he should decline it, then to admit another of the sons on his coming of age. The first named son declined the partnership, and afterwards became bankrupt. Held, that the shares belonged to the widow, as against the assignees of the son, and the residuary legatees.

The late Mr. Marks, coachmaker, in Regent But if it was a partnership deed, it was illegal Street, by a clause in his will, after bequeathand void, being in opposition to the regula-ing to his wife for her life, so long as she retion of the pawnbrokers' act. brokers' acts were passed for the benefit of the

The pawn

a 39 and 40 Geo. 3, c. 99, ss. 22, 23, 26.

mained a widow, three fourths of his stock in trade, and of the profits of his business, directed that when his son James should attain the age of twenty-one, he should be admitted

Notes of the Week.-Answers to Queries.

DOMESTIC REGISTRATION OF DEEDS.

Notice has been given of a motion by Mr. Anderson Pelham, for a Bill to establish a general system of Domestic Registration of all deeds and other instruments relating to Real Property in England and Wales.

ENTAILED PROPERTY.

Mr. Slaney has given notice of a Bill to facilitate the Exchange or Sale of small portions of Entailed Property, without having recourse to an Act of Parliament in each

case.

POOR LAWS.

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cision before the Vice Chancellor, that although the 2 & 3 W. 4, c. 33, for effectuating the service of process from the Courts of Chancery and Exchequer in England and Ireland, clearly includes Scotland, as a part of Great Britain, his Honour refused to exercise the enlarged jurisdiction, on the ground that it was the Lord Chancellor's opinion that the legislature did not intend to include Scotland in the provisions of the

act.

that it is the general opinion of the profesWe believe his Lordship is correct, and sion that process cannot be issued into Scotland according to the object of the statute, which was intended to relate to England and Ireland only; and indeed the title of the But we do We have given, in another part of this act shews this to be the case. Number, an analysis of the larger part of not see why our Scottish neighbours should this Bill, and have stated fully the import-be exempt from the jurisdiction of our ant clauses relating to the appointment of Courts, where the property in question (as the Commissioners, and the relief to which in the case referred to) is situated in Engthe poor are to be entitled. Relief to the able-bodied poor is to be regulated by the Commissioners, and any relief contrary to such regulations will be disallowed in the accounts. Exceptions are allowed in case of emergency. But after the 1st of June, 1835, relief to able-bodied persons in employment is to cease, and any sums paid contrary to this provision are to be disal

lowed.

land.

LAW CHANGES AND PROMOTIONS.

be made Mr. Baron Vaughan was raised to the Bench before Mr. Justice James Parke; but as the Court of King's Bench is superior to the Exchequer, the order of seniority with regard to the learned Baron may perhaps be modified.

Common Law Courts, which we mentioned The rumoured change of Judges in the a week ago, has been since repeated in the daily journals. The principal object appears to be to strengthen the Court of ExWe refer to our Analysis and Observa- chequer, by placing Mr. Justice James Parke on that Bench; but some arrangetions on the Commissioners' Report (pments with regard to precedence remain to 353), and the Remarks on the Right of able-bodied Paupers to Relief (p. 470), for an explanation of the leading objects of the measure; and we shall take an early opportunity of considering the several objections which have been made to the details of the plan. It seems universally admitted that a change of system has become necessary; but it is not to be wondered at that the means by which the change is to be effected are the subject of much controversy. Indeed the precise nature of the plan does not appear to be precisely understood by some of our contemporaries; and it is supposed there is a dissimilarity between the statement of the supporters of the plan, and its details in the Bill. We believe this to be a mistake, and that there is no such discrepancy. The clause restricting the relief of the able-bodied poor in employment after a limited time, is quite consistent with the Commissioners' Report.

It is said that Mr. Follett, Mr. Platt, Mr. will soon be promoted to the rank of King's Thesiger, Mr. Alexander, and Mr. Hill,

Counsel.

ANSWERS TO QUERIES.

Common Law.

PURCHASER OF STOLEN HORSE. P. 399.

A. may recover back his money from B. It is money had and received to his use, being handed over on a consideration which has failed. So held in Robinson v. Anderton, Peake, N. P. 94, where an outgoing tenant sold and delivered to the incoming tenant fixIt will be observed by the report of a de-tures which in reality belonged to the lessor,

EQUITY PROCESS INTO SCOTLAND.

Answers to Queries.-Queries.-The Editor's Letter Box.

who afterwards made the incoming tenant pay | the same might have been brought if this act