The Sun.
London, England, 1858-01-19 00:00:00

LAW INTELLIGELYCO--lan. 18.

VIC E-011ANCEL LORS' COURTS.
(Before Vice-Chancellor Stuart.)
THE BRITISH GII.ARINTEE ASSOCIATION V. THE
MARQUIS OF NORMANBY.
Mr. Pemberton applied for leave to serve a short
notice of motion for Wednesday, for an injunction
against the defondant, as representing the Reform
Club. The Marquis of Normanby was out of the
jurisdiction ; and it was asked that, so far as he
was concerned, the service on the solicitor might be
good service.
The Tics-Chancellor said he had some difficulty
about making the order in that form. The better
way would be to make the ordinary order, and then
the plaintiffs might serve as many of the defendants
as they could.
(Before Vice-Chancellor Sir W. P. Wood.)
IN BE ROSHRRVILLE GARDENS.
Mr. Rolt and Mr. Roxburgh resumed their ar-
guments this morning in support of the petition for
winding-up the company, at the instance of Mr.
Mayhew, the petitioner, and others.
Mr. Cairns also appeared for parties holding
shares who wished the company to be wound up.
Mr. Daniel and Mr. Southgate, on behalf of Mr.
Tones and others, opposed the petition, denying
that the company was anything more than a part-
nership, and that the company, on the face of the
accounts, was insolvent. They also stated that a
winding-up order would prejudice Mr. Jones, who
intended filing a bill for the purpose of taking the
accounts.
The 'ice-Chancellor said he would give judg-
ment to-morrow (Tuesday.)

COURT OF QUEEN'S BENCH.
THE WREN V. J. H. G. SMYTH--QUALIFICATION OF A
BMW-FF. .
In this case a rule had been obtained against Mr.
John Henry Greville Smyth for refusing to take
upon himself the office of sheriff for the city and
county of Bristol.
Sir F. Thesiger, in now showing cause against the.
rule, said Mr. Smyth was little more than 21 years
of age, and resided at Ashton Court, Somerset, a
mile from the city of Bristol. He was possessed of
very considerable estates, a small part compara-
tively of which was in the city of Bristol. lie was
the freeholder of the estates within the city, but did
not occupy any portion of them, they being all let
out to tenants ; and he was not a burgess, nor en-
titled to be on the burgess roll. On the 9th Nov.
last he was elected by the town council to be sheriff
of the city and county of Bristol. He refused to
take upon himself that office, considering he was not
liable to serve ; and this rule was obtained for the
purpose of trying the question. The corporation of
Bristol founded their case on the 61st section of the
sth and 6th Wm. IV., c. 76, which enacted that in
the city of Oxford, Bristol, and other counties of
cities, the town council should, on the Ist day of
November every year, appoint "a fit person" to
execute the office of sheriff. A subsequent act pro-
vided that the appointment should be made on the
9th November, immediately after the election of
mayor. Prior to that act Bristol was governed by
charters, some of which were very deficient. By
these it was provided that the common council, which
was a self-elected body composed of freemen, should
on the 15th Sept. every year elect and nominate
two burgesses of the city, out of the common council
or not, to be sheriffs. It was said that the sth and
6th Wm. IV. repealed that portion of the charters,
and enabled the town council to elect any fit per-
son to serve the office of sheriff, and to compel him
to perform the duties in connection with it. Sir F.
Thesiger now contended that the act meant not only
that the town council should appoint a fit person,
but one who was properly qualified.
Lord Campbell thought that if Mr. Smyth had
taken upon himself the office of sheriff there would
be some difficulty in removing him on the ground of
his unfitness.
Sir F. Thesiger submitted that he was not pro-
perly qualified fur the office, being neither a bur-
gess nor en titled to be one, and being resident out
of the city, and in no way connected with the cor-
poration. He was entirely beyond the jurisdiction
of the corporation, and could not legally be com-
pelled to serve the office of sheriff.
Mr. Gray followed on the same side.
Lord Campbell said this was a very important
case, and it was desirable to have it put in such a
form that the decision of a higher Court could be
obtained. One rule could not be applied to Bristol,
and another to other cities in the same category.
Sir F. Thesiger—Mr. Smyth is willing to accede
to any suggestion for the purpose of obtaining the
highest authority.
Lord Campbell asked what provision there was
• with regard to the office of sheriff when a gentleman
elected to it refused to serve
Sir F. Thesiger—lt is provided that the late sheriff
shall continue in office until the appointment of his
successor.
Sir F. Kelly, who appeared for the corporation,
observed that the difficulty was that the appoint-
ment of the successor had already taken place.
Lord Campbell—But the appointment must for
the present be considered invalid. The old sheriff
is de facto in office, and all he does will have legal
validity.
Sir. F. Kelly—l am glad to hear your lordship
say so.
It was then agreed that a writ of mandamus
should issue ; that a special case, raising the ques-
tions, should be stated upon the return • and that
the case should be taken pro forma through the
Court of Exchequer Chamber, with the view of
having the decision of the House of Lords at an
early period.
Judgment accordingly.
CUSTODY OF A CHILD,
A gentleman named Harris applied to the Court
for a habeas corpus to bring up his son, named
William Gordon Harris, who was 10 months'
old, and had been born and christened while the
applicant was in prison. Mr. Harris stated in
his affidavit that his wife had separated herself
from him, and remained in concealment with the
child against his wish ' • and that he believed Mr.
Moon, her attorney, had intercepted his letters to
her, and was cognisant of her address and privy to
the unlawful concealment of the child. He further
stated that he believed the object of his wife was to
remove his son to a foreign country, and to bring
him up in the Roman Catholic religion, to which
he (the applicant) was opposed. Under these cir-
cumstances he hoped the Court would grant him
the writ.
Lord Campbell—To whom do you propose we
should direct the writ ?
Mr. Harris—l believe, my lord, that Mr. Moon
has a knowledge of the placeof concealment of my
wife and child, and he is privy to the unlawful de-
tention of the child, and that he is the proper per-
son to whom the writ should be addressed.
Lord Campbell—But you must satisfyed us before
we take such a step that Mr. Moon is a party
the custody of the child. The best to
way will be to
direct the writ to your wife.
Mr. Harris said he did not know where to find
her.

The Court granted awritof habeascorpus directed
to Mrs. Harris or any other person who might have
the custody of the child.
(Sittings at Nisi Prius, at Guildhall, before Mr.
Justice Erie and Common Juries.)
This was the first sitting in London for the pre-
sent term, the list contained 46 causes, of which 21
were remanets.

BUSINESS OF THE COURT.
Mr. E. James asked his lordship whether he in-
tended to sit here on Monday next, the day fixed
for the marriage of the Princess Royal.
His Lordship said he understood the Court would
sit in bane° at Westminster, and if so, he should
sit at nisi prius ; he would, however, make inquiry
and state the result to-morrow (this day).
COURT OF CONIMON PLEAS.
(Sittings in Banco, before Lord Chief Justice Cock_
burn and Ju-tices Williams, Crowder, and Willes.)
2.3wiS V. BUTLER AND ANOTHER. PROCEEDINGS_
AGAINST THE ESTATE OF A DECEASED SHARE
HOLDEA IN THE ROYAL BRITISH BANK.
The defendants were executors of Mr. C. Walton,
who had been a shareholder iu the Royal British
Bank, and the plaintiff bad proceeded by scirefacias
against them to rocover the batince of a debt due
front the bank. Mr. Walton died on April 16, 1850,
and the b,nk stopped pay tnnt in Sept. following.
The name of the deceased appeared in the last me-
tnof ial of i,harehollers, which was filed in June,
1856, and the 21st FCC. of the 7 and 8 Vic., c. 113,
enacted 'I that the persons whose names shall ap-
pear from time to time on their last delivered me-
and their personal representatives, shall be
istifig tatil,:Negal proceedings under thii act, as ex-
c''Vers." The que.tioii was whether the
estate of the
his death befurereased w liable, notwithstanding
in the ease waes bank stopped. Anothtr point
transferred the Mr. Walton's executors had
the transfer deeds heaa wren before the bank stopped, but
Mr. Beasley subwittnedo been registered.
t
.
lai‘wiar.s
jhausrethicoeiclwe
ina that Mr. Walton was in
whzu it stopped.
he was a shareholder alter he
N;ialesdt:7 is wileLher
Mr. Beasley—Whether the Act of Parliament for
this purpose kept him alive. (A lau,,h.)
The Lord Chief Justice—And that by implication,
not by positive enactment.
Mr. Justice Williams—lf you are right that the
statute keeps him alive, I do not see what has hap-
pened since to kill him—(laughter)—and then you
are in this difficulty, that you were suing a mau you
knew was not alive.
Mr. Beasley submitted that the estate of Mr.

11!1•C

Walton was liable to be taken in execution undo 7 r
the judgment which had been recovered; for a cre., .
ditor had no means of ascertaining whether a share -
holder was dead or alive ; he could only refer to tli e
last memorial. There might be a company consist -
ing only of a few shareholders, the whole of whont t
might have died since the last memorial had bees
filed, and how could a creditor proceed in thr tit
case
Mr. Phipson, on the other side, addressed ftie
Court at considerable length, contending that tlae
defendants were not liable to the proceedings in
question.
The Lord Chief Justice was of opinion that there
should be judgment for the defendants. He
thought the meaning of the Legislature must be
taken to this, that where a person was a share-
holder, or, being on the memorial, was therefore to
be taken as a shareholder, would have been per-
sonally liable, in the event of his death, his legal
representatives must be held to be liable also. But,
on the other hand, where a person would not have
been—though on the memorial—liable to be pro-
ceeded against on a judgment against the company,
his personal representatives would not be liable.
In the present instance, the shareholder had died
before the judgment was obtained. Death had re-
moved him beyond the reach of any proceedings
under this act. He never could have been pro-
ceeded against. He thought that the utmost the
Legislature intended was that the representatives
of the shareholder should be liable where he him-
self would have been liable if living. As this party
never could have been proceeded against, there-
fore his representatives were not liable.
Judgment for the defendants.
FRY V. RUSSELL-JUDGMENT. - _ .

Mr. Justice Wiles said this case was argued last
term. The defendant was a shareholder in the
British Bank when the last memorial was regis-
tered, and although a transfer of his shares was
made and registered subsequently to that period,
yet there was no further memorial filed showing
that he had ceased to be a shareholder. In this
case there would be judgment for the plaintiff.