AUGUST 30.]

on application to restrain the Shrewsbury and Birmingham Railway from holding a meeting to sanction such agreement, refused to interfere, on the ground that the conflict between the convenience and inconvenience, on the one side or the other, preponderated in favour of the party who had the legal right to enter into the contract. Lord CRANWORTH, however, in giving judgment, said, "My decision in refusing this injunction does not at all prejudice the question whether, if this proposed agreement or any similar agreement should be entered into, the plaintiffs may not be entitled to an injunction restraining the defendants, or rather in that case restraining the NorthWestern Railway Company, from so acting under the agreement as to exclude the plaintiffs from the Shrewsbury and Birmingham line, or from conducting the through traffic according to the terms of that contract."

WINDING UP.

THE business of winding up in the Master's office at this early period of the vacation appears at a stand-still, no intelligence having reached us.

PETITIONS, ORDERS, MEETINGS, APPOINTMENTS, CALLS, &c. [Announced, issued, and made, during the past week.] Re" An Act to dissolve the National Land Company, and to dispose of the Lands and Property belonging to the ComCreditors to pany, and to wind up the undertaking." come in and prove their debts. To appoint an official manager on the 4th September next.-Humphry.

REAL PROPERTY LAWYER
AND CONVEYANCER.

Summary.

THE LAW TIMES.

COUNTY COURT OF MIDDLESEX.
Reported by DAVID CATO MACRAE, Esq. of the Inner
Temple, Barrister-at-law.

Brompton.

(Before ANDREW AMOS, Esq.)
RUSSELL V. SMITH.

master, 51. for the trustees, 71. for repairs of
school-house, &c. The income of the property
so devised to the corporation of S. having in-
creased to a much larger amount than was
required for the payment of all the sums so
directed to be paid, the corporation had been
The Court, how-
in the habit of paying no greater amount to
the school and its purposes, but applied the
surplus to their own use.
ever, held that all the objects of the charity
ought to share in the surplus, in the same Defendant being indebted to plaintiff assigned to
proportion to the whole surplus as the respec-
tive sums to be paid to each bears to the
others.

In Emery v. Bond, 17 Law T. 275, ViceChancellor KNIGHT BRUCE held, on the construction of a peculiar clause in a will, that annuities given by a will out of the interest, were chargeable upon the corpus of the estate. dividends, or proceeds of the testator's estate,

COUNTY COURTS.

Summary.

A CASE of some interest in the law of Insolvency was recently decided by Mr. Commissioner Law. (Re E. Gooding, 17 Law T. 278.) The question there was, whether the discharge of a debtor in execution by the plaintiff operates as a satisfaction of the debt, so as to disable the plaintiff from proving for a dividend made under a creditor's petition, filed previous to the discharge, and under which no schedule had been filed. The Court held that the discharge of the debtor before adjudication operated as satisfaction of the debt, but otherwise after adjudication. The judgment in this case is lucid and full, and will well repay perusal. "In the present case," said the learned ComAN interesting case, in the practice of sales of missioner, "the plaintiff knowingly substituted He discharged the judgment debt, real property, came recently before Vice-Chan-one state of things for another as affects himcellor TURNER, and is reported in our last num-self. ber, Leslie v. Thompson, 17 Law T. 277. In taking a fresh written promise having its own that case the plaintiff was the vendor, and the dimensions. On this the insolvent remains defendant the purchaser, of a landed estate, liable. The plaintiff has the benefit of it; it sold by auction. The property was sold under was by his own act-the liberation of the certain particulars, and one of the conditions debtor-that he got that benefit. That act "that if any mis- made adjudication impossible. If there had of sale was the usual one, take or error shall appear in the description of been adjudication, a new promise would not the property, or any error whatever in the an- have availed for that debt. The claim would nexed particulars, such mistake or error shall have remained cognizable in this court, and in not annul the sale; but, except where other- this court only. The plaintiff has made his wise provided for by these conditions, a com-election; he has discharged the debt which pensation or equivalent shall be given or taken otherwise he would have been competent to as the case may require, to be settled by two prove, and he has acquired a new right on referees or an umpire, to be nominated by which there can be no proof." This case them," &c. Out of four lots bought by the should be noted in Macrae's Practice of Insoldefendant one was found to be much more vency. CASE OF MR. RAMSHAY. than the quantity set forth in the particulars, and the three others to contain some acres less. On the question of the vendor's title to com- JUDGMENT has at length been given by the pensation being raised by a special case, the Chancellor of the Duchy Lancaster in the case Court held, that the purchaser must make of Mr. RAMSHAY, the judge of the County compensation for the extra quantity in the one Court of Liverpool, against whom, it will be lot, and was entitled to compensation for defi- remembered, a charge of intemperate and inciency in the other three lots. Another point decorous conduct to the parties practising beincidentally raised (which it would be advisable fore him, had been preferred. The complaint to note in Hughes's Practice of Sales of Real was limited to infirmity of temper, not the Property) was, whether in a case where, beyond slightest ground appearing for impeachment the description of the lands, &c., there is a of corruption or incapacity. It was admitted general statement of the total acreage, with that the learned judge had for some time the qualification "more or less," the presump-suffered from ill-health, which might render tion of an intention to sell the property in a him more irritable than otherwise he would lump is not negatived? The Court here held have been. After a protracted and patient

that it was.

46

trial, judgment has been given in his favour, A charity case," of peculiar interest at so far at least as goes retention in office-the this time, when the disposition to correct language of the Chancellor being, that "he abuses in public charities and the misdirection does not feel called upon to remove Mr. of funds from the purposes to which the RAMSHAY from his office." We sincerely or settlor devoted them, is that of hope that this painful inquiry, now that it has testator The Attorney-General v. The Mayor of South- terminated in a solemn judicial decision, will molton, 17 Law T. 274. There the founder of be forgotten, and a kindly feeling will be cultia school, by his will reciting the foundation of vated for the future, by both sides. We give the school and the conveyance to trustees, below the official answer to the memorial, and devised his freehold property, with a specified a report of the learned judge's address on exception, to the corporation of S. on certain resuming his seat. conditions, amongst which were the payment

to the school of 401. of which 251, were for the

miums upon policy of assurance deposited as
security for the payment of a debt inserted in the
schedule subsequently becoming due.
Discharge under the Insolvent Debtors' Act-Pre-

him, by deed of mortgage, three policies of assur-
ance on defendant's life, and covenanted to pay
the annual premiums, and if he did not, and
plaintiff paid them, to repay plaintiff. Defend-
A
ant afterwards became insolvent, and was dis-
charged under the Insolvent Debtors Act.
premium accrued due after the discharge, and
being unpaid by the defendant, and plaintiff
having paid it, and not been repaid:

liability for these breaches of covenant by his
Held, that defendant was not discharged from
discharge from the original debt under the statute
1 & 2 Vict. c. 110.

This was a plaint to recover a sum of 47. 13s. 6d. exclusive of 8s. 8d. cost of summons, &c. being the amount of an annual premium becoming due upon three policies of assurance deposited with the plaintiff as a collateral security for the payment of a debt then due by the defendant, and which he had plaintiff had, and he now brought this action upon covenanted to pay, but not having paid them, the the defendant's covenant to repay him.

Mr. Lord (of the firm of Willoughby and Cox), appeared for the plaintiff, and Macrae for the defendant.

The facts of the case are shortly these. The debted to the plaintiff, deposited with him three defendant, Mr. Henry Valentine Smith, being inpolicies of assurance, effected upon his own life, in as a security, and subsequently, further sums having the Commercial and General Life Office, Cheapside, been advanced, by way of better security he executed that H. V. Smith was entitled to the policies of a mortgage of these shares, in which, after reciting assurance under the annual premiums mentioned, and the sum of 1801. for moneys advanced, and that H. that H. V. Smith was indebted to Thomas Russell in the debt with the interest growing due, and until V. Smith had agreed to secure the repayment of the debt, the defendant, Mr. Smith, covenanted to pay (Davidson's that was paid that he would pay, or cause to be paid, the annual premiums upon the policies assigned, and Martin, vol. 3, p. 614). After the excecution of this if he did not, then Mr. Russell was to pay the premiums, and the mortgagor, Mr. Smith, covenanted to repay the same to the mortgagee deed, the defendant became insolvent, and upon The defendant was duly discharged under the Act petitioning the Court for relief, entered both the orisubsequently the premiums upon the policies becomginal debt and the security given in the schedule. (1 & 2 Vict. c. 110) on the 4th of July, 1850, and ing due, insolvent being advised by his attorneys, debt, he was not liable on the security, declined to Messrs. Atkinson, of Carey-street, Lincoln's-innpay them. The premiums were then paid by the plaintiff, and he now brought his action to recover fields, that as he was discharged from the original this amount, in pursuance of the terms of the covenant. The question for the Court to determine was, whether the insolvency which discharged the original debt also discharged the payments defendant had

covenanted to make upon the security.

Fletcher
Lord relied upon Bennett v. Burton, 12 A. & E.

657; 4 P. & D. 313; 4 Jur. 1085, Q.B.;
v. Turk, 13 L. J. N.S. 43, Q.B.; Lloyd v. Peell,
3 B. & Al.; Wilmer v. White, 1 Bing. 291; La
Coste v. Gillman, 1 Price; Toppin v. Field, 4 Q. B.
386, &c. These cases were all precisely in point,

as would be seen upon referring to them.
Macrae, for the defendant, said that the question
would depend the liability of the former to annual
involved in this case was one of great importance,
both to the defendant personally, and to the com-
munity at large. Upon the decision of the Court
payments for his whole life, and the question, as re-
garded the community was in effect whether the in-
solvency laws should become a dead letter, for if the
obtain a preference for himself, and secure the pay-
defendant was liable, the plaintiff, by taking this
security, would completely evade the insolvency laws,
ment of his debt in defiance of their provisions.
The defendant at the same time would be con-
stantly exposed to periodical suits on account of
very object of the Legislature to relieve a prisoner
this debt and periodical insolvencies or embar-
rassments on account of debts from which it was the
when it enacted this code of laws for his relief. He
had carefully looked into the Act of Parliament,

and also into the cases, but must confess that
none of those bearing decisively upon this point
not even the reasons given by the learned judges

66

66

were convincing to his mind. He would first directable by virtue of any bond, covenant, or other secu- schedule as creditors, or claiming to be creditors, his Honour's attention to the various provisions in rities of any nature whatsoever (s. 80), and were for the same respectively, and which were not the the Act bearing upon this point, then state the points intended to protect the debtor in the undisturbed payable" (s. 75). A limited or a larger construction he relied upon, and lastly make such comments upon enjoyment of his future acquired property in re- could be given to these words. The word "debt" the cases relied upon as seemed desirable. His spect of these debts until he should have acquired was defined to be "a demand for a sum certain ;" (4) Honour would see, from the provisions of the Act, such a degree of the means of subsistence as to be "a sum of money due by certain and express agree that it was clearly the intention of the Legislature, in a state of solvency, and have a surplus (1 & 2 ment, as a bill of exchange or a promissory note; in return for vesting the whole of a prisoner's estate Vict. c. 100, s. 89) to spare, upon which event, and and although strictly speaking this premium at the for the benefit of his creditors, to relieve him from not till then, the Legislature authorised the appro- date of the vesting order was not an existing debt all pecuniary liabilities subsisting at the date of the priation of any of his future acquired property in that could be claimed as then due, yet if one insolvency. The various provisions of the Act to payment of his past debts. The policy and in- cast about for an equitable principle of interwhich it was necessary to direct the attention of the tention of the law, both as regarded the creditors pretation, it would be clearly this: that a priCourt were these:-A debtor being in custody for and the insolvent, was clear. He was fully borne out soner should be protected in respect of existing debt, "shall pray to have future liberty of his person in this by the declaration of Mr. Commissioner pecuniary liabilities to the extent to which his pro against the demands for which such prisoner shall Law, probably the highest living authority on perty vested. If a prisoner had a title to property, be then in custody, and against the demands of all this subject, who had materially aided Lord Eldon reversionary, contingent, or otherwise, at the date other persons who shall be or claim to be creditors in perfecting the provisions of the previously of the vesting order, that property, if ever it came to of such prisoner at the time of filing his petition." defective statutes. In regard to their policy as re- him, belonged to his creditors named in the 1 & 2 Vict. c. 110, s. 35. And then it shall be garded the insolvent, that learned commissioner schedule; so, also, if he was under pecuniary lalawful for the said Court to adjudge that such pri- observed, in his judgment in Hance's case, "Can bilities, contingent, reversionary, or otherwise, at soner shall be discharged from custody and entitled any man study the Insolvent Acts, from that of 1813 the date of the vesting order, if these liabilities to the benefit of this Act. as to the several debts to the present day, and not discern the policy of ripened into debts, he should be protected and sums of money due or claimed to be due at the these laws? It is that a man shall be able to earn in respect of them. The principle of equity was that time of making such vesting order as aforesaid from himself a livelihood not harassed for his debts; a debtor should be protected from the demands of such prisoner to the several persons named in his that his struggle for subsistence shall not be frus- the creditors, to the extent to which his property schedule as creditors or claiming to be creditors for trated by the invasion of his means of subsistence; vested for the creditors. He therefore submitted the same respectively, or for which such persons that his past debts shall only be a charge on the that the Court should adopt the larger construction shall have given credit to such prisoner before the contingency of a clear surplus estate." (Re Hance, of the words, "debts and sums of money due or time of making such vesting order as aforesaid, and 1 Cox & Macrae's Insol. Cases, 127.) That to hold claimed to be due." The next section to which be which were not then payable." 1 & 2 Vict. c. 110, the defendant liable would be contrary to the policy had directed the attention of the Court, was the s. 75. "And be it enacted, that the discharge of of the law as regarded the creditors also would be 80th. That was certainly very strong. It extended any such prisoner so adjudicated as aforesaid shall seen by reading the 87th and 91st sections, which the protection of the statute "to any sum of money and may extend to any sum and sums of money rendered void "new securities," placed all creditors payable at any future time by virtue of any bond, which shall be payable by way of annuity or other-in respect of the payment of their debts upon the covenant, or other securities of any nature whatso wise at any future time or times by virtue of any same footing, forbidding all suit except upon ever." Strictly speaking, this premium was not "a bond, covenant, or other securities of any nature the judgment entered up under the provisions sum of money payable at any future time," at the whatsoever." 1 & 2 Vict. c. 110, s. 80. And in of the Act for the benefit of all the creditors date of the vesting order, by virtue of this secu respect of any security, "no writ of fi. fa, or elegit collectively, and deferring even that mode of rity." It was not certain that it ever would become shall issue on any judgment obtained against such payment until it should appear to the satisfac- payable; but looking at the language of the Sith prisoner for any debt or sum of money with respect tion of the Court that the debtor had not only section, which forbade the payment of the original to which such person shall have so become entitled, the means of payment but a surplus. If the plain- debt, the Court was bound to construe it as if cer nor in any action upon any new contract or security tiff succeeded in this case, he would obtain a pre- tainly payable and grant its protection accordingly. for payment thereof, except upon the judgment en- ference over all the other creditors, which it had been But so anxious had the Legislature been to afford tered up against such prisoner according to this the fundamental object of both the Bankruptcy and effective protection to the debtor, that in the 91st seeAct; and that if any suit or action shall be brought, Insolvency Laws from their commencement to pre- tion it made void "any new contract or security" for or any scire facias be issued, against any such per- vent. To shew how careful the Courts had been the payment of the schedule debts. If these policies son, &c. for any such debt or sum of money, or upon to prevent these undue and unfair preferences, he were given as securities for the payment of the ori any new contract or security for payment thereof, would direct his Honour's attention to some few ginal debt after the discharge, there could be no or upon any judgment obtained against, or any sta- of the cases :-C. P. Hilary Term, 10 Geo. 3, doubt that the debtor would be protected from all tute or recognisance acknowledged by such person 1770, Linton, assignee of a bankrupt, v. Bartlet. payments in respect of them, and he could not see for the same, except as aforesaid, it shall be lawful The Court said, that "all the laws concerning why the same principle should not be applied to this for such person to plead generally that such person bankrupts, proceed upon equality, and say that security, although given before the insolvency. He was duly discharged according to this Act by the order all the creditors shall come in pari passú. relied upon the language of these sections, but chiefly of adjudication made in that behalf, and that such There is no case wherever such a preference was and mainly he relied upon the fact that this deed, order remains in force," &c. 1 & 2 Vict. c. 110, s. 91. allowed. The same spirit of equality ought to upon one of the covenants of which the plaintiff The mode of proceeding for the payment of sche-warm the courts of justice which warmed the Legis- sought to recover, was a contract between two private duled debts is pointed out in 1 & 2 Vict. c. 110, s. 87. lature when they made the Bankrupt Laws, and if we parties, to secure the payment of a scheduled debt "And be it enacted, that before any such adjudi- should let this deed stand, we should tear up the by other means than those pointed out by the cation shall be made with respect to any such pri- whole Bankrupt Laws by the roots; it is a bill Legislature in the 87th section. It was a contract soner, the said Court or commissioner or justices of sale made by a trader at a time when he to give the plaintiff a right of suit in respect of the shall require such prisoner to execute a warrant of was insolvent, and (plainly) had an act of bank non-payment of a scheduled debt. Upon the inattorney to authorise the entering up of a judgment ruptcy in contemplation. It is partial and un- solvency occurring, that became an illegal purpose. against such prisoner in some one of the Superior just to the other creditors. Judgment for the The statute forbade individual suit, and enjoined Courts at Westminster, in the name of the assignee plaintiff that the deed is bad." (Wilson, 49.) process under the control of the Court on behalf of or assignees of such prisoner, or of such provisional In Phillips v. Hunter, in error, it was laid down all creditors collectively. This deed had the effect assignee, if no other assignee shall have been ap- by the judges that "the great principle of the Bank- of giving an undue preference to the plaintiff, and by pointed and shall have accepted such office, for the rupt Laws is justice founded upon equality. No giving him the right of suit upon non-payment amount of the debts stated in the schedule of such creditor shall be permitted to acquire an undue pre-his debt, it to that extent gave him power over future prisoner so sworn to as aforesaid to be due or claimed ference, and by so doing prevent an equal distribution acquired property of the insolvent, which no other to be due from such prisoner, or so much thereof as amongst all the creditors. Equal distribu- creditor had, and which it was contrary to the inten shall appear at the time of executing such warrant of tion is the policy of the Bankrupt Laws." (2 H. B. tion of the Legislature, and the policy of the Ach attorney to be due and unsatisfied; and the order 403.) In re Wetherell, 11 Law T. 373, Mr. Com- that he should have. The Court, he submitted, s of the said Court for entering up such judgment missioner Law said The general policy of the Act bound to enforce the provisions of an Act of Parshall be a sufficient authority to the proper officer is that all property should be made available for the liament, in preference to the contracts of private parfor entering up the same, and such judgment shall creditors generally, rather than for one in parti- sons. (b) Upon principles of equity as between the pa have the force of a recognisance; and if at any time cular." In Smith. Wetherell, 10 Law T. 229, Lord ties to this action, the plaintiff had not a shadow of a it shall appear to the satisfaction of the said Court Denman, in delivering judgment for Mr. Justice right to enforce this demand. The consideratio that such prisoner is of ability to pay such debts, Patteson in the Bail Court, says The argument upon his part was the forbearance of suit in respect or any part thereof, or that he is dead, leaving which weighs with my brother Patteson is this, that of the original debt. The statute now stept in, and assets for that purpose, the said Court may permit the main scope and object of the fact (1 & 2 Vict. declared that he should have no right of individer. execution to be taken out upon such judgment, for c. 110) is to divide the insolvent's property rateably suit in respect of that debt: therefore the considere such sum of money as under all the circumstances among his creditors, and this object is best efected ation on his part being taken away, and there of the case the said Court shall order, such sum to by such a construction of the 55th and other sections being no new consideration given, it was called be distributed rateably amongst the creditors of such as would not give the opportunity for any particular festly unjust that the defendant should be called prisoner according to themode hereinbefore directed creditor to interfere and obtain a preference over the upon to fulfil his share of the contract. al in the case of a dividend made after adjudication; others." Having directed his Hot preferentiover the defendant was forbidden to pay the origins. and such further proceedings shall and may be had special provisions of the Act, and their equitable con debt by the statute, and the plaintiff was forupon such judgment as may seem fit to the discre- struction as to policy and intention, as laid down by tion of the said Court from time to time, until the the highest authorities, he would now state the points whole of the debts due to the several persons against upon which he relied, considering first the proper whom such discharge shall have been obtained shall construction of the language of the several clauses be fully paid and satisfied, together with such costs intended to protect the debtor, and then at the as the said Court shall think fit to award. these were the provisions of the Act a is then "Now peculiar provision of the statute with respect to of the parties a right to receive a certain and liquidated "In general, whenever a contract is such as to give one upon this subject; and upon considering them it was individual suit, and the consequent individual ap- between the parties. (Stephen's Com. vol. ii. p. 98) impossible not to see that it was the intention of propriation came in direct the Legislature to free an insolvent, not merely from contact. The prisoner first prered for meerty against by certain and express agreement as by a bonding out "The legal signification of debt is a sum of money due all subsisting debts, but from all liability on secu- the "demands for which such prisoner shall be then terminate sum, a bill of exchange, or a promissory note, rities held for these debts. The insolvency laws in custody, and against the demands of all other and specific, and does not depend upon any subsequent

were intended to withdraw the insolvent and his persons who shall be, or claim to be, creditors
affairs, so far as regarded pecuniary liability, from (s. 35.) The adjudication clause then rendered it
the general law of debtor and creditor, and to place ful for the Court to adjudge such prisoner entitled to

e oblig (a) Wherever a legal liability devolves upon a party to consequence of an express promise or an inepted of tion) the law denominates such liability a debt."

Com. 465.)

and

or a rent reserved on a lease where the quantity is fred valuation to settle it." (Les Termes de la Lov, 165; (b) All deeds are liable to be impeached if founded on the statute, and these provisions denied the right sums of money due or claimed to be due at the time (1 Stephen's Com. 462.) subsisting debt, and upon

him and his affairs under the special provisions of the benefit of the Act, as to "the several debts and immoral or illegal consideration, or if obtained by fraud

of suit to any individual creditor in respect of any of making such vesting order, as aforesaid, from the ground of dishonesty, or as being opposed to publie

Any contract is invalid in law that can be impeached on any sum of money pay-such prisoner to the several persons named in his policy. (Broom's Legal Maxims, 575.)

tinguish the debt, it only barred the remedy. But lous persons who had endeavoured to cover him with
it did not occur to the Court, nor was it suggested disgrace and dishonour. Those accusations, how-
by counsel, that the Act does extinguish the debt for ever, had recoiled upon themselves, and they now
some purposes; and it is only by holding to this stood convicted before the world of having attempted
principle that the greatest absurdities are prevented to defame, to disgrace, and to ruin an honourable
in administering the law of insolvency. "The debt," and independent man-one who had never injured
says Mr. Commissioner Law, in Re Hance, "we any one, and had cared only for the faithful and
know is not extinguished for all intents and purposes, independent discharge of the onerous duties imposed
but the power of proceeding for the recovery of it is upon him. From the moment of his appointment he
extinguished, excepting upon the judgment in the had been the object of their unceasing calumny and
several ways prescribed by the statute;" and again, misrepresentations. He had not thought it con-
"There can be no suit except upon the judgment, sistent with his position there to notice this matter
therefore no suit whatever by individuals for suit until now; but his forbearance had been miscon-
upon the judgment is on behalf of all together." strued, and they had at length had the audacity to
The Court of Q. B. admitted that, if the debt carry their slanders elsewhere. Their want of suc-
was extinguished, the action could not be main- cess there was not owing to any want of exertion on
tained. The debt is extinguished for all pur- their part, or to the want of bitter materials, or the
poses of individual suit. This was an individual assistance of dishonest servants and fraudulent agents.
suit, and, taking the reasoning of the Court, upon its Such conduct could be no longer tolerated; and those
own shewing the verdict ought to have been for the men must be brought before another tribunal and
defendant, but most of the principles to which he there taught to respect its judgments, and that they
had alluded were never brought under the notice of were not to lay their ill and treacherous hands on the
the Superior Courts, and were mentioned to his administration of justice. It might be that this con-
Honour for the first time. He, therefore, trusted duct had arisen from his not being the nominee or
they would receive full consideration. This class of creature of their own, and that he was unwilling to
cases should be decided upon the equitable prin- prostitute the administration of justice to their in-
ciples which governed the administration of law in terests. He was not the first judge who had been
the special systems to which an insolvent and his thus assailed; but his predecessor also had been the
affairs became subject. When they were withdrawn subject of the unceasing persecution of those men,
by bankruptcy or insolvency from the general law of and there was but too much reason to fear that his
debtor and creditor. If it became generally known premature and lamentable death was the result of
that a man could always secure the repayment of their conduct. For that predecessor, for himself,
money advanced, and harass his debtor for life, in and for the due administration of justice, he was
defiance of the insolvency laws enacted by the Legis- happy to say those men had been doomed to defeat,
lature for the debtor's protection, the consequences and they must be made an example of for the future.
would be most serious. If a poor debtor had a They had attacked him in the hour of sickness and
hundred creditors in his schedule for sums between infirmity, from a feeling, perhaps, that he should
501. or 1501. all secured in this way, there would be stand alone in his defence. But though they might
nothing for him but periodical insolvencies or per- have opposed him on certain topics, men of discern-
petual imprisonment, and the insolvency laws would ment and education were not to be thus blinded;
in effect become a dead letter. This was a most and to their honour they had crowded round him to
serious result in a commercial country, and such rescue their judge from an attack as unjustifiable as
would be the result if this became generally known it was disgraceful. To those gentlemen, and also to
to be law. He looked with anxiety as to the re- the general body of the town, he begged to return
sult, particularly as there was no mode of bringing his grateful thanks for the general courtesy and kind-
the principles he had advocated under the review of ness which he had received at their hands, and they
the Courts at Westminster, to which they had cer- might rely upon it he should continue fearlessly and
tainly never yet been presented. He trusted, as independently to discharge his duties, to do justice,
there was no appeal, his Honour would do substan- to love mercy, and to walk humbly before God. His
tial justice, according to the intentions of the Legis-Honour appeared to be deeply affected while making
lature.
the above remarks, and was frequently unable to
proceed, or only did so in so low a tone that no per-
son in court could hear distinctly all his observations.
The trial of cases was then proceeded with as usual.-
Chronicle.

His Honour intimated that he would take time for
consideration.
Cur, adv. vult.

bidden to sue for it. The very basis of the con-
tract being taken away by the Legislature itself, how
then could the other parts of it be enforced? He
called upon the Court to set aside the whole deed,
and relied upon Jackson v. Davidson, 4 B. & Ald.
691. An insolvent debtor having petitioned the In-
solvent Court to be discharged under the Act, a cre-
ditor gave notice of his intention to oppose him on
the ground that the debt was fraudulently con-
tracted. To induce the latter to withdraw his oppo-
sition, the insolvent agreed to execute, within three
days of his discharge, a warrant of attorney for the
debt, and in the meantime to give a promissory note
of a third person for the amount, which was to be de-
livered up on the execution of the warrant of attorney.
The insolvent was discharged, and the warrant of at-
torney was executed on the delivering up of the note.
The Court set aside the warrant of attorney, and
the judgment entered up thereon, on the ground
that the agreement on which they were founded
was contrary to the policy of the Insolvent Act, in-
asmuch as it enabled the creditor to take to himself
a large portion of the future effects which the Legis-
lature intended to be distributed amongst all the
creditors. Bayley, J.-This warrant of attorney if
supported would interfere materially with the policy of
the Act, by taking from the body of the creditors a
portion of those funds which the Legislature meant
to be distributed amongst all, and by defeating the
effect of the judgment entered up by order of the
Insolvent Court. Holroyd, J.-I am of the same
opinion. This warrant of attorney was founded
upon an agreement which is in direct opposition to
the policy of this Act of Parliament. The object of
the Act was, that the person of the debtor should be
free with respect to all those debts from which he
had been discharged, and that his future effects only
should be liable in the mode there pointed out.
Best, J.-The future effects of the insolvent are,
by the provisions of this Act, directed to be divided
rateably amongst the creditors until their debts are
wholly paid. By enforcing such a security we should
enable the plaintiff to deprive his co-creditors of
some portion of that fund which the Legislature in-
tended to be rateably divided amongst all.-Rule
absolute for setting aside the warrant of attorney,
and the judgment entered up thereon. The Courts
had again and again recognised this principle of
supporting the insolvent law in opposition to pri-
vate deeds. In Rogers v. Kingston, 2 Bing. 441,
the defendant was a discharged insolvent, and a cre-
ditor withdrew opposition after receiving a promis-
sory note for the amount of his debt. The insolvent
was arrested for the non-payment of this after his
Judgment for the plaintiff.
discharge, but settled the action by giving a warrant NOTE.-Attention has been called to the facts of
of attorney, in which his brother joined, to confess this case in the Times, the Morning Advertiser, and
judgment for the amount of the debt and costs and other journals. The latter journal presumes in their
interest, to be paid by instalments. The Court, on article, that, as there was counsel in the case, it
motion, set aside this warrant of attorney, after was rightly decided. However that may be, the
the payment of the first instalment, upon the argument is fully given, for the consideration of the
ground that the whole transaction was contrary Profession. It is clear, that the Statute of Limita-
to the policy of the Insolvent Debtors Act. tions, as well as the Insolvency codes, may also be
Best, C. J. says, "The party who has obtained evaded by this plan of taking a security for the
this warrant of attorney places himself by the sale of annual payment of a policy, upon making a loan or
his forbearance in the situation of a new creditor, loans of money.-REPORTER.
and in a better position than he is entitled to claim."
Park, J. says, "The argument which has been
used in support of this warrant of attorney is in op-
position to all the cases which have been decided,
from that of Jackson v. Duchaire, 3 T. R. 551,
downwards. The general principle of all these cases
is, that one creditor shall not be permitted to obtain
an advantage at the expense of the others, but the
case turns on the 25th section of the Insolvent
Debtors Act, which gives the commissioners power to
issue execution against an insolvent's subsequently
acquired effects, and divide them rateably among the
creditors; but as the plaintiff's name was not in-
serted in the schedule, he might sue out execution
without application to the commissioners, and there-
by gain an advantage over the rest of the creditors.
The 26th section of the Act provides that an insol-
vent shall not be arrested for a debt due to a former
creditor, and if the plaintiff's name had been in-
serted in the schedule, the insolvent's person would
have been safe. This the plaintiff prevents by taking Mr. RAMSHAY presided at the sitting on Monday,
a promissory note contrary to the policy of the Act, for the first time since the decision of the Earl of
The case in the K. B. proceeds on the true ground. Carlisle in favour of his fitness for the office. Busi-
and is in point for the defendant." Burrough and ness was appointed to commence at nine o'clock,
Gaslee, JJ. concurring. Rule absolute. The ob- and as 150 cases were fixed for hearing, a large
servations he had made applied in some respects to number of persons were then in attendance, and as
the cases in bankruptcy relied upon by the plaintiff, the time advanced the number of persons in waiting
and in other respects they did not; but in none of increased. Mr. Ramshay, however, did not make
these cases had counsel attacked the ground of his appearance till a little before one o'clock.
the consideration for the security, as being con- His HONOUR, on taking his seat, said, before
trary to the policy of the insolvent law, and in commencing the business he would make a few ob-
direct collision with the machinery provided by the servations on circumstances which had occurred
Act for the payment of the debt, and perhaps they since he last sat there; but he made these remarks
could not, for there was no such machinery provided often in so utterly inaudible a tone, that it was quite
in bankruptcy as in insolvency, and a written pro-impossible at times to hear one-half of his sentences.
mise might renew the debt. With respect to the He was understood to say, in commencement, that
decisions relied upon in insolvency, the case of Ben- attempts had been made to remove him from his
net v. Burton was in point; but looking at the reason office whilst labouring under the distressing and
assigned by the Court for giving the verdict for the dangerous illness by which he had been so long
plaintiff, it was not convincing to his mind. Lord afflicted. He had, however, been able to defeat the
Denman said the Insolvent Debtors Act did not ex- machinations of certain ill-disposed and unscrupu-

LIVERPOOL COUNTY COURT.

CASE OF MR. RAMSHAY.

THE Earl of Carlisle's decision in this case has been
communicated to the Liverpool Guardian Society in
the following letter:-

Duchy of Lancaster Office, London,
Aug. 20, 1851.

"SIR,-I am desired by the Chancellor of the
Duchy of Lancaster to acquaint you that, having
heard and very deliberately considered the evidence
produced in support of the memorial presented to
him, and the evidence on the part of Mr. Ramshay,
he does not feel himself called upon to remove that
gentleman from his office.-I am, Sir, your very
obedient servant,

"F. DAWES Danvers.
"John Smith, esq. President of the
Liverpool Guardian Society."

SUPERIOR COURTS OF COMMON LAW..
FIRST REPORT.

(Continued from page 204.)
As to pleas in denial of the matters alleged in the
declaration or statement of the plaintiff, we think
that the defendant ought to be at liberty to use the
general issue where now applicable, or, if he prefers
it, to traverse one or more material allegations
separately. This would lead to conciseness, and to
a diminution of expense, as it sometimes happens
that the general issue denies several facts when a
portion of them only is in dispute.

We propose, also, that the plaintiff shall, in all cases be at liberty to traverse the averments in the plea by a general denial, but shall also retain the right to single out and deny one or more.

We also propose that the same rule should apply to traverses of the replication, rejoinder, and all subsequent proceedings.

In order, however, to protect the parties against the costs of proof of facts unjustly put in issue by a general traverse, we think that either party ought to be entitled to require a finding by the jury as to the truth of the several allegations put in issue, and that costs ought to be awarded accordingly, as though the findings had been on different issues.

With the same view of preventing needless prolixity, we recommend the abolition of the form of pleading known as the special traverse.

"

The origin and object of the special traverse is explained by Mr. Sergeant Stephen in his "Treatise on the Principles of Pleading in Civil Actions (p. 191), and it is described by him as a barbarous formula, and a relic of the subtle genius of the ancient pleaders. It has been discountenanced by the Courts, and is disapproved of by Mr. Sergeant Williams, in the first edition of his Notes on Saunders's Reports.

The principal use of this form of pleading is to evade the objection of argumentativeness when a qualified denial only of an allegation is necessary or advisable, and to raise a question of law upon the record which might otherwise have been involved in an issue of fact.

The form of the special traverse comprises, first, an inducement or statement of new matter, which must be an indirect denial of the fact intended to be traversed; and, secondly, the conclusion or traverse, which is in these words, "without this, that," &c.

(denying directly the fact intended to be disputed).
If the inducement stood alone, the plea would be
open to objection for argumentativeness, because it
only shews by inference or indirectly that the alle-
gation intended to be denied could not be true; the
direct or special traverse, therefore, is added, to
avoid such an objection.
The rules which govern the form and application
of the special traverse are so technical and artificial
as to perplex the practitioner; for instance, the in-
ducement must not be a direct denial, but it must
be a sufficient indirect one, and it must not be in
confession or avoidance. The rules also as to when
the inducement may or may not be traversed, and
how the pleading may be answered by the opposite
party, are extremely difficult and abstruse. It ap-
pears to us, that if our other recommendations as to
pleading were adopted, all the advantages (if there be
any) which attach to the substance of the special
traverse may be attained without the necessity of
adhering to the form.

fore might be denied without a new assignment; but The words complained of were, "You (meaning the
if the declaration did not describe the close so as to plaintiff) are a regular prover under bankruptcies."
shew it could not be the place over which the de- The inuendo was, that the plaintiff was accustomed
fendant has the right of way, the plaintiff would be to prove fictitious debts under commissions of bank-
driven to a new assignment. A similar remark rupt. This was held to be bad, because the inuendo
applies to the defendant's pleas. If they are so was not warranted by the inducement; but if the
precisely defined as to shew the exact extent and inducement had been, that a conversation had taken
nature of the cause of action intended to be answered, place with respect to the proof of fictitious debts,
the plaintiff would not be obliged to resort to this the Court admitted that the declaration might have
form of pleading.
been good.

With this view we have proposed that the defend-
ant in any action for a trespass to person or pro-
perty shall be entitled to particulars identifying the
cause of action for which the plaintiff is proceeding,
and the plaintiff to particulars of any justification
pleaded by the defendant; and that a judge may
order plans of the locus in quo to be exchanged
between the parties. The information thus obtained
will, we believe, in the great majority of cases ren-
der a new assignment unnecessary.

So, in the case of Hawkes v. Hawkey, the plaintiff stated he had put in an answer on oath to a bill filed in the Court of Exchequer, and that defendant said he was forsworn, meaning, he had perjured himself in his aforesaid answer: the judgment was arrested, the inuendo being too large, because the plaintiff had not stated that the words were spoken in reference to the answer.

It may be said that a good cause of action should in all cases appear on the face of the declaration. This we admit. We do not propose to intrench upon this rule; we only suggest a less technical and difficult method of stating the cause of action.

We should certainly have recommended the abolition of this mode of pleading, but that we felt the same difficulty which occurred to the former Commissioners in attempting to do so, as some cases might be The substance of our recommendation is, that it suggested where injustice would be done, even where shall be sufficient to state in what particular defa particulars are given, if the plaintiff were prevented matory sense the words were used, and if the plainfrom new assigning; as when the whole case turns tiff prove to the satisfaction of the jury that they upon the manner of doing any particular act, the were used in that defamatory sense, which the dedegree of force used, or the precise limit of a right. fendant may deny under the general issue, no objec It would sometimes be inconvenient, if not impossi- tion shall be allowed by reason that the words do ble, for the plaintiff to complain of the excess only, not appear by independent statements to bear that for two reasons; first, because it would be unrea- meaning; provided, of course, that the sense imsonable to require a plaintiff to assume that the de-puted to them be actionable. fendant intends to plead any particular plea of justi- The real meaning of the expressions, and the defication, as, for instance, to state that the defendant famatory nature of them, are of the essence of the had a right of way over his close, but that defendant cause of action. Both will appear on the record. trespassed in other parts of the close, inasmuch as If it should happen that the particular sense alleged the defendant might never intend to claim the right does not amount to a cause of action, the detect at all; secondly, it might happen that the plaintiff may still be taken advantage of. The statement fairly wishes to contend that the defendant had not now required, of the train of circumstances in conthe right to do the act, and if he had that he ex-nexion with the slander, to shew the meaning im ceeded his authority. Thus, he might deny the puted to it, appears to us to be unnecessarily prolix, plaintiff's right to arrest and imprison him, and also and more calculated to impede than to advance jus contend that, admitting the right, the defendant was tice, by imposing difficulties of a technical nature. guilty of unnecessary violence when arresting him, The next class of our suggestions is intended to and imprisoned him for too long a period. We correct the too rigid operation of the rules against trust, however, that the restriction which we have duplicity. proposed to this description of pleading, and the more extended right of obtaining particulars, will effectually do away with the present abuse.

We have next, with the view at once of shortening the pleadings and getting rid of a source of objections purely technical, to propose an alteration in the mode of stating the cause of action in cases of libel and slander.

In order to remedy a great inconvenience which has been experienced in practice from the extreme strictness of the 6th and 7th of the pleading rules of 1834, by which plaintiffs and defendants respectively are confined to but one statement of their cause of action or defence, however complicated may be the facts out of which it arises, or doubtful the construc tion to be placed upon them, we recommend that a discretion be given to the judge, to whom application may be made for the purpose of striking out counts or pleas pleaded in violation of those rules, to allow several counts or pleas, although there be only one subject-matter of complaint or defence, if he thinks fit; and that the provision in those rules as to costs be altered; and we also think that, the expense of two applications, all objections to pleading several pleas, on the ground that they are founded on the same subject-matter, should be disposed of upon the summons to plead several matters.

order to save

New assignments also are at present too often abused so as unnecessarily to lengthen the proceedings. The necessity for them arises in two ways; first, where the plaintiff complains of one of several trespasses in a form so general that it is applicable to any of them, and a trespass in respect of which the action is not brought is either by mistake or design justified by the defendant; secondly, where the defendant pleads a justification of the trespass complained of, but the plaintiff maintains that there has been an excess beyond what the circumstances justify; for instance, when the defendant justifies committing an assault in self-defence, and the plaintiff means to rely on a violent beating beyond what mere self-defence required. With respect to the first, it is possible that the defendant may have been misled by the form of the complaint, and so long as this is the case he cannot be prevented from pleading an answer to any trespass which corresponds with the plaintiff's description, and which the defendant may in fact have committed. With respect to the second, the defendant must be at Liberty to answer the plaintiff's prima facie case, and cannot justly be held to surmise and answer a complaint of excess in the exercise of his legal right, to which excess his attention has not as yet been directed by the form of the complaint. In each case it becomes necessary for the plaintiff to assert, in answer to the plea, the other trespass or the excess of which he complains, and the defendant must have an opportunity of answering that assertion. This seems capable of being effected by short and simple statements. But in practice instances have occurred of great and unnecessary prolixity and length of pleading in consequence of new assign- Where the libel or slander states in direct terms ments. For instance, to an action of trespass the that which without any explanation is by law the defendant pleaded four defences: 1st, a right of ground of an action, the difficulty does not arise; way; 2nd, a right of common; 3rd, a right to take but when, as is more frequently the case, particularly wood for repairing his house; and, 4th, a right to in libel, the expressions used are only slanderous, take wood for his fire. The plaintiff new assigned or actionable in connection with other precedent as to each plea that he brought his action for tres- facts, it is necessary to introduce such facts in the passes different from those justified in that plea; the declaration, and to shew that the expressions comdefendant thereupon pleaded to each new assign-plained of were used in reference to the previous ment the three defences other than that contained in allegations, so that the meaning imputed by the plainthe plea to which there was the new assignment, and tiff to the expressions may not only be explained but so the pleadings went on until each plea was repeated appear to be warranted. The meaning so assigned four times over in almost the same identical form of in the declaration by averment of the meaning or words. There is no real necessity for this. A de- application of the words, which is called, in pleading fendant need never repeat a plea, nor need a plaintiff language, the inuendo, cannot, according to the new assign separately to each plea. Suppose a de- present rule, enlarge the sense of the words used, fendant, in answer to an alleged trespass, asserts,- the office of the inuendo being only to explain them 1st, a right of way; and, 2nd, a right of common; with reference to the other averments in the decla- Further, with a view at the same time to enable if he pleads both, and the plaintiff complains of ration. persons to defend themselves against groundless claims something not justified by either or both, he ought The technical mode of effecting this is, first, to or to repel insufficient defences, both in point of fact to say so, and not say separately to each plea that state the facts in reference to which the publication and law, and to have all objections brought forward he complains of something not justified thereby. is actionable; secondly, to shew that the words or at the earliest stage, whilst amendment is easy and We recommend, therefore, that, whatever num-libel were published of and concerning such facts; comparatively inexpensive, we propose that either ber of pleas a defendant may plead to the same thirdly, to connect the words or libel with such pre- party shall, by leave of a judge, be at liberty to cause of action, there shall be but one new assign-vious facts by means of proper inuendoes, thus im- plead and demur to the same pleading at the same ment, which shall state that the plaintiff proceeds porting into the words a slanderous or actionable time. It has indeed been suggested that this should for causes of action different from or beyond all quality. be allowed as a matter of right. We are, how those justified, and the defendant shall not be at It may not appear at first sight difficult to comply ever, apprehensive that unless placed under the liberty to plead to the causes of action newly with these requirements; but the contrary is the control of the Court the power of demurring assigned any justification which he has already fact: numerous instances might be given where the and pleading simultaneously might be resorted pleaded. The consequence will be, that if the de- judgment has been arrested or reversed because the to for delay. A question has also been made fendant pleads but one defence at first, and the inuendo, or meaning ascribed to the words used, as to the order in which the issues of law and plaintiff new assigns, the defendant may then plead which is the essence of the cause of complaint, has fact should be disposed of. In ordinary cases we his next defence, and so on, putting each defence not been, in the opinion of the Court, supported by see no reason why they should not go on concur once, and once only, on the record; but if the de- the prefatory statements, although the jury must rently; but we think no special provision necess fendant plead all his defences in the first instance, have found that the meaning alleged was intended for this purpose, and that the matter may remain as which is the usual course, the plaintiff will new by the defendant. at present in the discretion of the parties, subject, assign once for all, and the defendant will of neces- In a 'very modern volume of the Reports of the under special circumstances rendering it expedient sity be driven to deny the causes of action newly Court of Q. B. three consecutive cases on this sub- to dispose first of the issues in law, to the inter assigned, or pay money into court, or suffer judgment ject occur, which occupy no less than forty pages, ference of the Court, which however is rarely found by default. and must have consumed a considerable portion of necessary. If the description given in the declaration were so time in discussion, in one of which the judgment was Whilst we would allow the utmost latitude to the precise as to prevent any possibility of the defend-arrested, and in the other two the plaintiff suc- parties in placing upon the record all the grounds ant's mistaking or pretending to mistake the cause ceeded. In the same year a similar point was dis-upon which they can fairly rest their claim or det of action, no necessity for a new assignment would cussed at great length in the House of Lords on a fence, on the other hand it is obvious that some limit arise. For example, if a plaintiff were to state that writ of error from the Court of Ex. Ch. in Ireland. should be put upon the liberty to plead or reply the defendant trespassed on his close called Black- In the case of Alexander v. Angle, the introduc- several matters, whether of fact or law. The statute acre, in the parish of A. a plea justifying under a tory averment was, that the plaintiff was a livery-4 & 5 Ann. C. 16, s. 4, which admitted several ped right of way which only existed in Whiteacre, or any stable keeper, and that one T. P. had become bank- to be pleaded, clearly intended that the Court should place not answering to the description in the decla-rupt, and the plaintiff was about to prove a debt exercise some discretion in giving leave to plead ration, could not apply to this declaration, and there- justly due to him under the commission of bankrupt. them. We do not propose to interfere with the dis.

With a view to remedy the injustice which we have pointed out as arising from the rule which con fines parties in the later stages of pleading to a single answer, we propose that liberty should be giren to reply, rejoin, &c. several matters, by leave of the Court.

cretionary jurisdiction which the judges now possess ther in the same suit. But this is without foundation.
in this respect, but to extend it to the cases which Causes the most dissimilar may, as the law now
will arise under the practice above suggested.
stands, be joined. The plaintiff may join in one ac-
Connected with the subject of pleading, is that of tion a claim on a promissory note, on a breach of
forms of action and their joinder. We have post-promise of marriage, and a complaint of negligence
poned until now the consideration of this subject, against an attorney; in a second he may join a
because it will presently appear that the question of claim for criminal conversation with trespass to his
the maintenance of these forms will be materially person, his land, or his goods; in a third he may sue
affected by the alterations which we have already for the seduction of his daughter, infringing his pa-
suggested in the language of pleading.
tent, and for negligently driving over and slandering
It is admitted that serious inconvenience arises him; because in all these cases the form of action is
from the stringency of the existing rules respecting the same. The joining of incongruous causes of ac-
forms of action, both with respect to the misjoinder tion therefore may now occur. We believe it is
of forms of action, and their misapplication to the impossible to lay down general rules by which it
particular case.
could be prevented without great mischief; and that
plaintiffs may be safely trusted in this matter. A
plaintiff is not likely to damage his claim for criminal
conversation by adding a claim which may divert
attention to a question of whether he is entitled to
the price of the goods sold, or other incongruous
matters.

A mistake as to the form of action may be of much more serious consequence than the defects in pleading which we have been hitherto discussing, as it is not always cured by pleading over (as errors in form, strictly so called, are), or even after verdict; but the objection may be raised on general demurrer, or, after verdict, by motion in arrest of judgment, or by writ of error, although it may be quite beside the real merits of the case.

A few instances, not unfrequently occurring in practice, will be sufficient to explain the nature of the inconvenience complained of.

The forms of action most frequently in use are assumpsit, debt, covenant, detinue, trespass, and

Debt lies to recover a certain sum, or capable of being reduced to certainty by calculation, payable in respect of a direct and immediate liability by a debtor to a creditor :

Covenant to recover damages for the breach of a Covenant under seal:

Detinue lies when goods or specific moneys are unlawfully detained:

Trespass lies for direct injuries to person or property.

We propose to abolish the existing rule, and to allow a plaintiff to join in one and the same action all his causes of complaint. But, to prevent any inconvenience which in any particular case might ensue from a joint trial of several causes of action, we propose that the Court or a judge shall have power to prevent the trial of different causes of action together, if such trial would, in their judgment, be inexpedient, and in such cases may direct separate trials.

C.J. at Maidstone Assizes, in the case of Wightwick v. Woodhams, 17 Law T. 261. It was there held, that the word, "action," in the proviso to sec. 1 of that statute, extends to a feigned issue. But this case is of short-lived interest, as the Law of Evidence Amendment Act, which comes into force on the 1st of November, repeals this proviso ; and the value of the case is still further lessened by the fact, that no clause is introduced into the new Law of Evidence Act like the third section of Lord DENMAN's Act, which declares its provisions were not to apply to any such action or proceeding brought or commenced before the passing of that Act. The consequence of this is (as stated by Mr. Cox in his edition of the Law of Evidence Amendment Act), that all actions, suits, or proceedings tried after the 1st of November, 1851, whether commenced before or after the passing of the latter Act, will be subject to its provisions.

EQUITY OF REDEMPTION-MORTGAGE.

TO THE EDITOR OF THE LAW TIMES.

SIR,-As a constant reader of and subscriber to your valuable journal, may I beg the favour of you to insert the following query on a point in practice in your next, and I shall feel greatly obliged if any of your correspondents will answer the same.

A. being a copyholder in fee surrenders conditionally to B. and his heirs by way of mortgage for The suggestions above made, however, should not securing a principal sum and interest, but the surapply to the action to try the title to land, that render contains no power of sale. The mortgagor action being a proceeding in rem, not directed to dies without paying off the mortgage-money, and any person in particular, but which all persons in-devises the mortgaged premises to his widow for life, terested may defend. That proceeding will, by but who has not the means of paying the fine and reason of its great importance, and the difference fees on her admission, in consequence of which the between the proceedings in it and other actions, be lord seizes the property for want of a tenant, and treated of separately in a subsequent part of the re-grants the premises to the heir of the deceased Report. mortgagee, who is also entitled under the mortgagee's will to the mortgage-money. Is the equity of redemption in the mortgaged premises, under the circumstances, barred so as to enable the tenant now on the rolls under the lord's re-grant, to sell the property discharged of such equity of redemption? August 26th, 1851. C. D. H.

(To be continued.)

THE LAWYER.

Summary.

THE LAW AND THE LAWYERS.

IN a former article on the Law Reforms which (From the Morning Chronicle.)

Case is far more extensive than any other form of action, and is applicable as a remedy for what are called consequential injuries, that is, injuries sup- EQUITY PRACTICE.-A case in the Rolls Court, posed to arise indirectly and consequentially from between solicitors, where the question was whether the act complained of,-as slander, whereby the the terms of an agreement entered into between plaintiff's character is injured; negligent driving, them for the carrying on a suit were that the dewhereby the plaintiff is run over and hurt; and the fendants should conduct it at the usual charges belike. Á familiar illustration of the difference between principal and agent, is reported in our last tween trespass and case may be stated:-Suppose a number. (Foley v. Smith, 17 Law T. 273.) In have been effected during the past Session, we sufperson throws a log of wood on a highway, and, by the act of throwing, another person is injured, the remedy in such case is trespass. But if the log reaches the ground, and remains there, and a person falls over it, and is injured, the remedy is case, as the injury is not immediately consequent on the act. So, if the defendant drive his carriage against that of another, the remedy may be trespass; but if the defendant's servant be driving, the remedy is case. One form of the action on the case is trover, which is a remedy for the wrongful conversion of goods. Case is said to be the remedy for all actionable matters of complaint to which the other forms of action do not apply.

that case F. a solicitor, executor of, and entitled to residue under, a will, induced one of the legatees to institute a suit against him for administration; and S. another solicitor, was employed in the cause as solicitor, on the terms contained in a letter, the material part of which ran as follows:-" We beg for your satisfaction to state that we consider we act as your agents in this or any other suit, action, or matter in which we may be concerned for you, either personally or otherwise, and that our charges in respect of the said suit, action, or matter in which we may be so employed by you, will therefore be on the usual footing of agent and principal." F. at the time the letter was written had not taken out his certificate for the year, and was uncertificated through a portion of the time when the suit was going on. The COURT held that the latter amounted to an agreement by S. to carry on the suit for F. as his solicitor on the ordinary terms of principal and agent, and that it made no difference whether S. supposed F. to be a certificated solicitor at the time the letter was written, and that the same construction must be put upon the letter, as if S. had known that F. was without a certificate. But the most novel point, and that most worthy of record in this case, is the dictum of the judge that such an agreement as this might have been made with a lay client, and if so made it would be legal; We need not multiply instances. It is unreason- and although F. was not a client at the time able that a plaintiff should be compelled to bring the contract was made, and though it was two actions when the different causes of complaint made under the idea that he was a solicitor, it ought may, without inconvenience, be combined in one proceeding, as when he has one claim on a bond and not to receive a different construction from what it another on a bill of exchange, or seeks redress for would receive if F. had been a client merely, beslander and assault against the same person. cause it was not known he was uncertificated. This case abounds with points. Upon the question of taxation, it was held that the agreement constituted such a contract as precluded taxation on a common taxing order, and the plaintiff must, therefore, file a bill to obtain the benefit of taxation.

Now, it is a rule that no two of these forms can be joined in one action, except that debt may be joined with detinue, and case with trover, which is one of the varieties of that form of action. Thus, if a man has a claim against his tenant for breach of a covenant to repair contained in a lease under seal, and a further claim against the same tenant for nonrepair of another house let by lease or agreement not under seal, he must bring two actions, one of covenant and the other of assumpsit, to enforce those claims. If he has a further claim for a trespass to a third house which the same person has occupied under the pretence of its being let to him, a third action must be brought; and a fourth action would have to be brought if the defendant had done a permanent injury to premises let by the plaintiff to a third person.

The former commissioners suggested a partial remedy, namely, that a misjoinder of forms of action should be ground of special demurrer only, and that a mistake in the form of action itself, when brought in trespass or case, should be amendable at the trial. We think that this proposition does not go far A point of privilege was decided in the Insolvent enough; and after mature deliberation we are satis- Court in Re Thomas Fuller, 17 Law T. 279, where fied that no reform in pleading will be complete unless the present state of the law as to forms of action an insolvent came up for bail, and the clerk of the

be altered.

One of the arguments in favour of the present system is, that the rule as to the not joining different forms of action prevents incongruous and dissimilar causes of action from being inconveniently mixed toge

creditor's attorney appeared to oppose. The Court
held that opposition by an attorney's clerk could
not be allowed.

COMMON LAW.-A question under Lord DEN-
MAN's Act, 6 & 7 Vict. c. 85, arose before JERVIS,

value. Yet it is impossible to forget that, as we ficiently shewed our very high appreciation of their then remarked, we owe the measures referred to almost entirely either to a strong pressure from without, or to the energy and public spirit of private members of the Legislature. The official leaders of Parliamentary deliberation have established no claim either on our gratitude for the past, or on our confidence for the future. Of the important improvements which have been recently made in various departments of our jurisprudence, very few can be said to be, in any sense of the term, Government measures some encountered an obstinate and bitter official resistance-and not one was the spontaneous and unforced result of Ministerial zeal. Thus far, there is nothing whatever to shew that the responsible advisers of the Crown participate in the public conviction of the necessity of fundamental reforms in the law-least of all, that they are prepared to give effect to it in practical legislation. Nor, indeed, are we sure-looking at the isolated and fragmentary character of the improvements which have been effected-that the spirit of Law Reform has yet attained to such a height even in the House of Commons, as to offer an immediate prospect of those comprehensive and searching amendments which will alone satisfy the country.

There is, no doubt, a loud call for change, both within and without the House, but an effective demand is still wanting. The task to be accomplished is laborious, and in one sense difficult; yet, if it were seriously attempted, success would be by no means doubtful. When some novel undertaking is proposed to an engineer, he seldom discusses the practicability of effecting it. Impossibilities he scarcely recognises, and a difficulty is to him but a question of expense. If a minister could be found thus confident and resolute, the simplification and reconstruction of the whole body of our jurisprudence would be as certain of completion as a railway bridge or a tunnel. The community in general, deeply and justly impressed with the iniquitous operation of the procedure in the Superior Courts, naturally welcome and applaud that abolition of technicalities which results from the establishment of the numerous tribunals that have drawn to themselves nearly all the litigation of the country. The remedy was, no doubt, better than the continuance of the evil; but it is a spectacle at once melancholy and ludicrous, to seea legislature pride itself on devising means of escape from the influence of an institution which it nevertheless continues to sanction. If parliaments and