English Cases.-House of Lords. thing which has been done is about to ob- | Ritchie set aside, as being a breach of trust struct I will not say the public justice of on the part of the original trustee, and so the country, but the justice demanded by an far as Mrs. Rennie was a party to it, a vioindividual, and I see no reason to interfere. lation of the interdiction against anticipation. This proceeding was instituted by Mrs. Rennie herself, with her husband's concurrence. The Court of Sessions (in Scotland) gave judgment for the defendant; that is to say, they supported the deed attempted to be set aside. But upon appeal to the House of Lords, it was made to appear that the question which had been treat HOUSE OF LORDS.—25th April, 1845. CLAUSE AGAINST ANTICIPATION. THE following is an abridgement of a case that lately came before the House of Lords on appeal. It will doubtless be ac-ed by the Court below as of but little conceptable to our readers. sequence, was really one of great importance. It was argued for two days before the Law Lords Brougham, Cottenham and Campbell. In the year 1831, William Elphinston Robertson made a deed of trust whereby he directed his trustee to pay the rents and profits of an estate to his sister, then the Mr. Anderson and Mr. Macqueen, who wife of Richard Rennie, "declaring that were counsel for the appellants, showed this provision to my sister is purely alimen- that the separate use had originated in tary and exclusive of the jus mariti of her Scotland under circumstances similar to present or any future husband; and that it those which had given birth to it in Engshall not be attachable by arrestment or dili- tand; that its objects in both countries were gence (execution) of any kind whatever, the same; and that although, at one period, nor assignable, nor subject to any deeds doubts existed as to the policy of such arwhich either she or her present or any fu- rangements of property in the married state, ture husband may grant in relation thereto, yet that now these doubts were no longer or debts which they may contract." In entertained, the separate use being univerSeptember, 1835, a very extraordinary deed sally regarded as a contrivance that ought was executed, whereby the trustee, in con- to be countenanced and kept up. Then as currence with Mrs. Rennie, who was made to the clause against anticipation, it was a party to the instrument, conveyed the set- nothing more than a means devised by contled property to one Ritcher, upon certain veyancers to render the separate use secure, trusts, differing materially from those con- by placing it beyond the wife's own power tained in the original deed of settlement; to destroy it. The cases in the English but more especially differing from them in Courts of Equity, especially that of Tullet this important respect, namely, that where- v. Armstrong, 1 Beav. 1, were then cited, as by the original deed Mrs. Rennie was and the admirable judgment of Lord Langdeclared entitled to the entire rents and pro-dale in that case was shown to bear in evefits for life, yet by this second instrument, ry material respect on the policy of the law Ritchie (who was assumed as trustee in of Scotland. The Lord Advocate and Mr. conjunction with the gentleman originally Baillie, of the Scotch bar, were heard for appointed) was authorized to take the man- the respondents, and contended that by the agement of the estate into his own hands law of Scotland such clauses as that here and to pay out of it certain debts of Mrs. occurring in restraint of anticipation did not Rennie's husband, in particular several sums prevent a wife from assigning her separate advanced to that individual by Ritchie him- property for debts of an alimentary characAnd with the view of enabling him to ter; but the House having taken some time do this more effectually, Mrs. Rennie was to consider the question, gave judgment on put upon an allowance, under the deed, of the 25th April, 1845, reversing the decree a sum to be paid by Ritchie at discretion, of the court below. We extract the followbut which sum was in no event to "exceeding from the speeches of the Law Lords: £60 per annum," until the debts contracted Lord Campbell. It is not disputed that by the husband should all be discharged. self. A proceeding was resorted to in 1837 before the Court of Sessions in Scotland, to have this deed of devolution in favor of the law of Scotland recognizes the settlement of property as an alimentary provision for a married woman, and that it may be made not assignable or subject to debt English Cases.-Rolls Court or diligence, according to the principles sole might have disposed of it; and that of upon which many cases have been decided course exposing her to the influence of her in England, which are all to be found cited husband, was found to destroy the object of in Tulle v. Armstrong, 1 Beav. 1; 4 My. giving her a separate property. Therefore, & Cr. 377. But it is said there is an ex- to meet that, a provision was adopted of proception in favor of alimentary debts. It is hibiting the anticipation of the income of unnecessary here to inquire how far an ali- the property, so that she had no dominion mentary fund can be anticipated for past al- over the property till the payments actually imentary debts; because it seems to me became due. That is the provision of the quite clear that none of these items were law as it now stands, and that is found perthe almentary debts of Mrs. Rennie. The fectly sufficient for securing the interests of advances were to Mr. Rennie, or for the married women. support of the family while he was living in England; and for the whole amount he was personally liable. The debts, therefore, were the debts of the husband and not of the wife; and for the debts of the husband, I am of the opinion that an alimentary fund so appropriated for the maintenance of the wife cannot be assigned. I am therefore of opinion that the interlocutors supporting the validity of the deed of assignment must be reversed. Lord Brougham. My Lords, I take the same view of the case with my noble and learned friend. Lord Cottenham.* My Lords, it appears to me if this interlocutor were to stand it would be impossible hereafter to secure the interests of a married woman. In Scotland much the same course is adopted, the same objects have been worked out, though not precisely in the same way, but still there is by the law of Scotland a protection in favor of an alimentary fund, and there is a provision that the alimentary fund shall not be assignable. Those are two provisions very much corresponding with the provisions which have been adopted in the law of England-but if the present deed were to stand, there would be an end to that protection. This is not only an alimentary fund in its nature, but it is in terms declared to be so. It is declared not to be assignable-but it has been assigned, not for past aliment for the wife and her family, but for expenses incurred for the convenience of the family at large, or for the private expenditure of the husband. I think, therefore, upon that ground, that this deed is clearly bad. It is also clearly bad as being a direct breach of trust: the original trustee had no right whatever to divest himself of the duties which he had assumed to himself, and to transfer to others that discretion which was In this country, as in Scotland, it has been found necessary for the interests of society that means should exist by which either the parties themselves, by contract, or those who intend to give a bounty to a family, may secure that for the benefit of the wife and children, without its being subject to the control of the husband. In this country it is well known, that it has been sub-personal to himself. ject to considerable fluctuation from the time that that doctrine was first established, though it is now very firmly established; and no difficulty occurs as to the mode of carrying that object into effect. Judgment reversed. THE ROLLS COURT. Before the Right Honorable Lord LANGDALE, VENDOR AND PURCHASER.-OPENING BID DINGS. When first, by the law of this country, property was settled to the separate use of WALLOND V. WALLOND.-8th April, 1845. the wife, equity considered the wife as a femme sole, to the extent of having a dominion over the property. But then it was found that that, though useful and operative so far as securing to her a dominion over the property so devoted to her support, was open to this difficulty, that she being considered as a femme sole was of course at liberty to dispose of it as a femme The speech of Lord Cottenham is given at length as far as it relates to the general question. The court will not make an order for opening biddings, although the sum offered by the proposed purchaser be of an amount sufficient to satisfy the rule of the court, if the property be of such a nature that the sale of it may be placed in jeopardy, should the contract founded upon the higher bidding not be completed. THIS was a motion for opening the biddings on the sale of an estate which had t Principles of Equity-Fraud. been sold under the direction of the court. The sale in the first instance took place in June 1844, when the amount bid was 4,7007.; but on the 14th of November, PRINCIPLES OF EQUITY. FRAUD. 1844, an order was obtained for a resale, which shall comprehend all fraud. Fraud IT is impossible to lay down any rule under which the property was again sold is infinite. on the 5th of March, 1845, when it was purchased for 5,500l. On this sum an ad-"Quæritur ut crescunt tot magna volumina legis? In promptu causa est crescit in orbe dolus." vance was now proposed to be made of 3501., and hence the present motion. It is civil, not criminal, fraud which is relievable in equity. "No length of time," said Lord Erskine, "can prevent the unkennelling of fraud." And Lord Northington says, "The question is whether delay will purge a fraud? Never while I sit here. Every delay arising from it adds to its injustice, and multiplies the oppression." In order to prevent fraud, transactions between attorney and client, purchases of trust property by trustees, sales or agree. ments by expectant heirs, &c., are void. Mr. Mylne, in support of the motion, said, that the advance offered was more than the practice of the court required, which was only 4 per cent., and he conceived the order was therefore almost a matter of course. He cited Lawrence v. Halliday, 6 Sim. 296; Coc ane v. Cochrane, 2 Russ. & Myl. 685; Prce v. North, 2 Yo. & Col. 623. Mr. Turner, contra, insisted that there were no just grounds for opening the biddings in this case, and that great loss might be the consequence of an order for the pur- The prevention of mischief constitutes a pose. The property consisted of a parson- very important branch of equity. The writ age, which was held for two lives, and if of injunction is the instrument used for this one of the lives were to drop, a new pur-purpose. Injunctions are either common chaser might refuse to complete, and the or special. The common injunction is value of the property would be materially granted to stay proceedings at law. Whenlessened. At the sale there was only one ever a party by fraud, accident, or otherbidder besides the party declared the pur-wise, has an advantage by proceeding in a chaser; and the party now seeking to open the biddings was a nominee of the solicitor of one of the defendants to the cause. It was also a creditor's suit, and the interests of the parties entitled to the produce of the sale ought not to be put in jeopardy. He cited Williams v. Attenborough, Turn. & Russ. 70. Mr. Morison for the plaintiff. Mr. Chapman for a mortgagee. Mr. Mylne, in reply. If the proposed purchaser opened the bindings he would be bound by the offer which he made. court of ordinary jurisdiction, which would make the court an instrument of injustice, equity will restrain the party from using the advantage thus gained. Special injunctions are granted to restrain the infringement of patents or copyrights, to restrain the negotiation of bills of exchange or promissory notes, and in other cases to which the lecturer directed the attention of students as of indispensable use in practice. The following bills have been ranked under this head, all aiding in the prevention of fraud: Bills of peace; of interpleader; of The Master of the Rolls said, that would certiorari; to perpetuate testimony of disnot be so if a man of straw bid over him. coverty; quia timet to prevent loss; for the There was no case where, from the nature delivery up of deeds, &c.; for apportion-. of the property, great loss might be sus- ment or contribution; for assignment of tained, that the court consented to biddings dower; for a partition; to establish a being opened. He should have no objec-modus; to marshal securities; to secure tion to make the order if an arrangement property in litigation; to compel the lord could be made so that the parties entitled might be secured from loss, but not otherwise; for although the advance offered was sufficient according to the rule of the court, the tenure of the estate was a material consideration. The motion therefore must be refused, unless such an arrangement as he had suggested could be made. of a manor to admit a copyholder, &c. There are four principles governing equity in the redress of frauds-1st. The rule of law that a fraud is never to be pre.. sumed, it must be proved from the acts done. "Dolum non nisi perspicuis indiciis probari convenit;" but in some cases that. may be a fraud in equity which is not so Practical Points.-Broker-Special Contract-Negligence-Damages.-Discovery. at law. 2nd. An impeached deed cannot was brought to recover damages in respect be set up on considerations wholly different of the loss consequently sustained. The from those alleged in it. 3rd. If the prin- case was tried before Lord Denman, and cipal be released, parties who would have the jury returned a verdict for the plaintiffs. been secondarily liable cannot be proceeded The defendant moved in arrest of judgment, against. 4th. A deed cannot be set aside on the ground that the declaration, which in part for fraud; it must be set aside in was in case, did not state a good cause of toto, and a fraudulent deed will be thus set action; and judgment went for the defenaside, although innocent parties be interest- dant. But upon a writ of error in the Exed under it. Although these principles chequer Chamber, that judgment was remay be strained or departed from in par- versed; the defendant thereupon carried ticular cases, these are the exceptions, the the cause by a further writ of error to the others being the general principles to which House of Lords; where, after copious arthe learned lecturer directed the student's gument, the following opinions were delivered: attention. PRACTICAL POINTS. BROKER-SPECIAL CONTRACT--NEGLIGENCE -DAMAGES. Lord Brougham. It is wholly unneces sary to ask whether the Court of Queen's Bench was right in its notion of the office of a broker, namely, that he was not to do more than to make contracts; that he was signee than of a broker. But a broker, besides making contracts and passing the property in goods, which are his proper functions, may specially contract to act as factor or consignee. He may undertake to have the control over the goods, and deliver them for the price stipulated, which in this case was a ready money price. The breach is, that he delivered them on credit, whereby the plaintiffs were damnified. A broker is one employed to negotiate not to obtain a ready money price, or even bargains between parties in matters of trade, to sell goods consigned to him, which is incommerce, or navigation. In many re-deed rather the office of a factor or a conspects he is agent for both parties; being in fact a sort of middleman, or go-between, who never acts in his own name, but always in the name of those who employ him. He is not entrusted with the custody or possession of goods; in which regard, as well as in sundry other particulars, his functions are distinguishable from those of factor or consignee. The law has not only prescribed certain duties, but has annexed certain powers to particular species of Lord Cottenham assented to the law laid agencies. Thus, it is settled that auc- down by the Chief Justice Tindal, in delivtioneers can sell goods only for ready mon-ering the judgment of the court of the Exey, but factors may sell on credit, 3 Chitty Com. & Man. 199. It may so happen, however, that a person who is professedly a broker, and a broker only, may by special agreement undertake to act as a factor or consignee, in which event the responsibilities attaching to those characters, will of course be superadded to those of his proper calling of broker. In the above case the circumstan ces were of this nature: In January 1836, the plaintiffs, linseed crushers at Branbridge's, in Kent, employed the defendant, an oil broker in London, to sell for them a certain quantity of linseed oil. A sale was effected by the defendant, to whom the plaintiff consigned the commodity to be delivered by him to the buyer upon payment of the price. The defendant, however notwithstanding this special agreement, delivered the oil without receiving payment; and the action chequer Chamber, namely, that the duty of the defendant arose from his express contract, so stated in the declaration, and not simply from his character of broker. Judg. ment affirmed. Brown v. Boorman, 11 Cla. & Fin. 1; House of Lords. DISCOVERY. A defendant is not bound to discover the principal fact, or any one of a long series establish a criminal charge against himself, or chains of facts, which may contribute to and he cannot wave his right by any agreement. Accordingly, where pending prothe defendants in respect of the same transceedings in a cause, the plaintiff indicted action, the time for answering was extended until after the trial of the indictment. Lee v. Reed, 5 Bea. 381 THE New York Segal Observer. VOL. III.] NEW YORK, AUGUST, 1845. AFFIDAVITS BY PERSONS RESI- [MONTHLY PART. minister oaths within their several localities. It is enough to observe, that the enactment above cited, does not admit of so comprehensive a construction, and that THE rapidly increasing intercourse by the authority of a Brithish consul abroad foreign nations with England, and the num- is limited, in this respect, to those cases ber of British subjects who, for purposes of in which an oath or affidavit would be pleasure or business, are temporarily or valid when taken before a justice of peace permanently residing abroad, renders some in England. A justice of the peace or recent decisions with respect to the admis-other authority of a like nature, is not ausibility of affidavits made in foreign coun- thorized to administer an oath or take an tries to be used in the English courts, de- affidavit in a cause depending in any of the serving of attention. For years the courts superior courts in England, nor is a British of common law there have deemed it ex-consul authorized to administer or take affipedient to receive such affidavits when properly verified, Dolmer v. Barnard, 7 T. R. 521; but it seems to be essential to the validity of such instruments, in every instance, that they should be sworn before a person duly authorized to administer an oath. By the Stat. 6 G. 4 c. 87 §20, it is enacted, "that it shall be lawful for the consul-general or consul, appointed by his Majesty at any foreign port or place, whenever he shall be required and whenever he shall see necessary, to administer at such port or place any oath, or to take any affidavit, or affirmation, from any person or persons whomsoever, and every such oath, affidavit, or affirmation, shall be as good, valid, and effectual, and shall be of the like force and effect, to all intents and purposes, as if such oath, affidavit, or affirmation had been administered, affirmed, sworn, had or done, before any justice of the peace or notary public in Great Britain or Ireland, or before any other legal or competent authority of the like nature." It would be unprofitable here to speculate, whether it might not have been more expedient for the British government to have substituted, in every instance, a recognized and responsible officer like the British consul-acquainted in some degree with British laws and customs-for the multitude of officials of various degrees of intelligence, who, according to the laws or customs of foreign countries, are authorized to ad davits in such cases. The point was discussed and expressly decided in the case of Le Veux v. Berkeley, 2 D. & L. 31; where an affidavit was produced in support of an application for a new trial, which was sworn before the British consul at Paris, whose signature was verified by a person in the foreign office. The objection was taken and prevailed, that the affidavit was sworn before a person not competent to take an affidavit, in any proceeding in which an affidavit sworn before a justice of the peace would be insufficient, the court citing the case of ex parte Hutchinson, 4 Bing. 606; 1 M. & P. 559 S. C. as directly in point. The result of this decision is, that affidavits made abroad, to be used in a cause depending in the English courts, must be sworn before some person authorized by the law of the country in which the affidavit is sworn to administer an oath, and should be verified by an affidavit sworn in England, stating that the person administering the oath had been authority so to do, by the law of the foreign country. While on this subject we may notice in cases of affidavits, verifying the due taking of acknowledgments of deeds by married women, pursuant to the Statute, (3 & 4 Wm. 4 c. 75 $85,) the court of common pleas has not enforced a rigid compliance with the rule, which directs "such affidavits to be taken before a person duly au thorized to take affidavits in that court, or before some magistrate of the place where |