432 Selections from Correspondence.—Improvements suggested in the Law. against the insolvent, to prevent his being discharged before the hearing; but this is not always to be procured: it is true that in many cases the insolvent himself is the most culpable party; but on the other hand, there are instances in which creditors will behave with considerable harshness towards a man whose conduct has not altogether merited it; and some will even persecute him with the more severity for no other reason than because he has honestly refused to give them an undue preference. before the 1st of January, 1834. These words pursue the same line of conduct in their turn. plainly shew, that widows married before that A friendly creditor, when such a step is apperiod, neither lose any right which they pre-prehended, will sometimes lodge a detainer viously had, neither do they gain any. If they gain none, they cannot be in a better situation than they would have been if the act had not passed, and cannot possibly gain a right to dower upon estates upon which it is admitted on all sides they could have had none if the act had not passed. Mr. Leonard Shelford, in a note to his First Edition of the Real Property Statutes, page 1, in the Appendix of Forms, says, that as some doubt may probably arise, whether a person married before the 1st of January, 1834, may be able to defeat his wife's right of dower by the new me- It appears to me that a provision for the thods, it may be advisable, in such cases, to prevention of these improper discharges from adopt the old form, to prevent the right of custody, would be much more salutary than dower attaching. This will enable the pur- one for the abolition of arrest, with which we chaser to defeat the right of dower as effec- have been threatened. Justice requires that tually as before, by the exercise of the power creditors should be paid, and that men should of appointment;" and he goes on to say, be deterred from contracting debts which they "but unless it can be assumed that a widow have no means of paying, by observing the married before the 1st of January, 1834, will penal consequences of such conduct; but not be dowable of a trust estate under the 2d justice cannot either require or allow that section of the act, the limitation to the trus-when a man in distress has incurred what must tee during the life of the purchaser will be useless" As to whether the 2d section comprehends the interest of the husband under the usual limitations, appears quite foreign to the subject, for I do not see how it can affect the rights of widows married previous to the 1st of January, 1834. Assuming that by the words, equal to an estate of inheritance in possession," the interest of a husband under the usual limitations, would confer a right of dower, it can only do so, upon those widows who are married subsequent to the 1st of January, 1834, as the rights of dower of all other widows are expressly exempted from the operation of the act by the 14th section. M. A. IMPROVEMENTS SUGGESTED IN THE LAW. INSOLVENT DEBTORS.-ARREST. To the Editor of the Legal Observer. As it is stated in the public papers, that the Insolvent Debtors Act is about to be renewed, the present would seem a favourable opportunity for rendering any defects which may be found in the law, as it now stands. To one such defect (as it appears to me) I will venture to call your attention. After an insolvent has been arrested, has prepared the papers required by the Court, and has incurred all the necessary expences, it is in the power of his detaining creditor to send him a discharge within three or four days of the day of hearing; thereby rendering all his proceedings of no avail, and leaving him at the mercy of his other creditors, who are then at liberty to appear to him a considerable outlay, his hopes should be suddenly blighted by a procedure similar to the above, which can only be injurious both to the debtor and his creditors, by diminishing the scanty means of the former, and curtailing what remains of his property to be divided amongst the latter. If the Insolvent Act is to operate at all, let it have a full and fair operation, and let it not rest with a creditor to render it nugatory at his pleasure; for it is not every man who is qualified to be a judge in his own cause. If, Sir, cases of the above description (which are by no means imaginary) were of very frequent occurrence, it is possible that many might be disposed to approve of the abolition of imprisonment for debt, who are at present convinced of the impropriety of such a measure. When we are threatened with sweeping measures of reform, which would altogether unsettle the present order of things, and might probably introduce greater mischiefs than those they are intended to remedy, we ought to be doubly careful to remove every real defect, which would be likely to afford a favourable handle to the advocates of change. Let debtors whose conduct is fraudulent, be treated with the severity which they deserve; but let creditors who are disposed to give way to the impulses of caprice or unreasonable harshness, be restrained from making an ill use of their power; and then it may perhaps be discovered, that imprisonment for debt is not the hideous spectre which some would seem inclined to represent it. L*M. Notices of New Books. NOTICES OF NEW BOOKS. The Practice of the Superior Courts of Common Law at Westminster, so far as concerns Affidavits to hold to Bail; with Precedents, framed in accordance with the Modern Decisions By Boswell Hensman. Lumley. 1836. 433 This rule is independent of the introductory statement that the defendant is indebted, though that statement is necessary, and ought to be inserted at the outset. Application of the general rule to agreements consideration must be shewn. Bills of exchange-the affidavit must set out their tenor, and shew that the defendant is a party. If he be a drawer or indorser, the default of the acceptor must be shewn; but notice of dishonour need not. The plaintiff's title to the bill, and its negociability, and the indorsements, if he be indorsee, must be shewn; and that it has become due; and its amount; and dishonour or nonpayment; but not that it continues still unpaid. Goods sold, work done, money lent, and paid; and herein of the statement of the defendant's request. We have here an application of the principle of the division of labor, carried to a very minute extent. This is a book written exclusively upon the first step in a bailable action, namely, on the Affidavit of Debt. It is well that the author has pub-money lished the result of his labors at this period, for it seems not improbable that before the Analogous actions on contracts, where end of the present session of parliament, the consideration is executed; use and occuthe Law of Arrest, except under very spe-pation; hire of goods; wages. cial circumstances, will cease to exist. We An affidavit for goods bargained and sold, hope, however, not only for the sake of our author, but especially for the sake of a very large and important class of His Majesty's subjects-those to whom debts are owingthat the law will not be altered, and that Mr. Hensman's little book will continue to be, as no doubt it is, useful to the Pro fession. The author observes that "The numerous applications which have in late years been successfully made to the Courts of Common Law, to deprive plaintiffs of the benefit of bail, on account of defects in the affidavits of debt, have made the law respecting those affidavits of so much importance, that the sections devoted to it in the books of practice are by no means satisfactory to the profession. The author of this little work has, therefore, brought together all the decisions on the subject, and endeavoured to state accurately the principles by which these affidavits are tried. He believes the reader will see in this, as in every other branch of the law of this country, that he is not left to a mass of cases decided without reference to fixed rules, but will find in the determinations of the Courts, a series of applications of sound, reasonable, and simple principles." The use of the work may be estimated by the following outline. An affidavit of debt is required, not by the common, but by the statute law. It must be entitled in the Court, unless there be enough in the jurat to designate the Court. It must not be entitled in the cause. Who may be deponents. The deponent's abode must be stated; and his addition. But the abode and addition of the plaintiff and defendant need not be stated. The words justly and truly' are unnecessary. What mistakes are material. What the affidavit must state the general rule. or sold and not delivered, will not authorise an arrest. Money had and received. Condition precedent; performance must be sworn to. What particulars of the debt must be alleged; and herein of the sufficiency of a statement of a contract for interest; and describing the times or events on which the of a claim for a balance of accounts; and of money is payable; and of affidavits on awards. A debt amounting to as much as the sum arrested for, must be shewn. Where the defendant is entitled to sue because he fills a particular character, that must be correctly stated; but the mode in which he acquired it need not be detailed; surviving partners; executors and administrators; assignees; husbands. Certainty to a common intent is sufficient. On contracts to pay money, it must be sworn that the day of payment has passed; and on all contracts the affidavit must shew a breach; and in all cases an affidavit must shew a cause of action: but it need not deny that which is mere matter of defence; as the want a memorandum in writing; or the Statute of Limitations. of 434 Attorneys' Annual Certificate Duty. Of affidavits for several causes of action, and affidavits bad in part. Of negativing a tender. Of the swearing or affirming. Jurat; inserting deponents' names, where several. Inserting time and place of swearing. Jurat, where deponent is illiterate or ignorant of our language. Interlineations and erasures in jurat; alterations in it. Before whom to be sworn. If sworn before officer or his deputy, what deputy will suffice. If sworn before a commissioner, what signature by him necessary. If sworn in Scotland or Ireland. If sworn abroad. Of filing the affidavit; and herein of filing new affidavit, in the case of several writs. Of the duration of an affidavit. The supposed profits of the profession, after deducting the large sums of money disbursed for stamps, fees, and otherwise, Of a variance from the writ or declaration. not paid for so long a time that the mere are greatly over-rated, and are frequently Of the consequence of a want of, or de-loss of interest wholly exhausts the profit. fect in the affidavit; though the arrest was by a judge's order. But there must be an arrest. Of costs of the application. Of the time within which it must be made. Of a second arrest, on account of such defect. Of supplemental affidavits. Of counter affidavits, and inquiry into the merits. Where there is a doubt raised by the affidavit of debt; or where there is clearly no pretence for the claim. But no discharge on account of payment, if not made on the defendant's account. And no discharge, though arrest be against good faith. ATTORNEYS' ANNUAL CERTIFI- We have been requested to furnish our country subscribers with the principal facts which should be incorporated in the intended petitions to the House of Commons for the repeal of this impost. The following appear to be some of the main points. The 25 G. 3, c. 80, required every attorney, solicitor, and proctor, to take out an annual certificate, which was then fixed at 51. for persons residing in London, and 37. in the country. The amount was increased by various acts, and ultimately by 55 G. 3, c. 184, to the following amounts: £. s. d. Persons residing within the limits of the twopenny post, and having been admitted three years If not admitted so long 0 0 12 0 6 0 If residing elsewhere, and ad mitted three years If not admitted so long The last act also charged 1201. upon articles of clerkship, and 251. upon every admission. The recent alterations in the law and the practice have much diminished the former emoluments of solicitors, although their disbursements continue very nearly the same. These duties, and particularly the duty on annual certificates, are not founded on any just and equal principle of taxation, but are a direct personal and partial tax upon persons exercising one particular branch of the legal profession only, whilst persons exercising other professions are exempt from similar taxation. The certificate duty is in the nature of a tax upon the administration of justice; a mode of raising money which was given up in 1825, as altogether untenable, on the repeal of the duty on law proceedings. There are various other topics which may be urged against the tax, and several of those above referred to may be properly enlarged upon and enforced. Each petition should contain the views of the majority of the individuals who sign it; and if they will send us a copy, we will endeavour to bring into notice any new or additional grounds which the several petitions may contain; and from the whole, a series of irresistible arguments may be collected. We observe that the practitioners in almost every place in Scotland, have sent up petitions for repealing the duty. Perhaps it will not be taken off at present, because the injustice of it is not sufficiently understood; but it will never be repealed without reiterated petitions from all quar ters. 436 Professional Grievances. - Superior Courts : K. B. Practice Court ; Eachequer. I BEG leave, through the medium of your valuable Periodical, to call the attention of the profession generally, to the inconvenient mode of taxation carried on at the Master's Office of the King's Bench; it is an hourly and daily complaint, and one which ought to be remedied without delay. A solicitor's time is as valu. able to him as his money; and therefore he ought not be obliged to wait for two or three hours to attend the taxation of a few items. The cause of my complaint is, that in the King's Bench Office (and I believe only in the King's Bench), there is but one Master for several days to attend to the general business. Ought not this grievance to be remedied?-I have myself waited at the office for nearly two hours to have a sum of 57. 58. taxed, ere I could send an execution in the country. Perhaps it will be said, "Why does he wait; why does he not send his clerk?" True; but it is not every attorney that can keep clerks to wait two or three hours on such occasions. | It is not once or twice that it occurs, but, I am sorry to say, often. I hope that this will be taken into consideration, and be considered | by the proper authorities. AMICUS CURIÆ. SUPERIOR COURTS. King's Bench Practice Court. TRIAL OF ISSUE BEFORE SHERIFF.-GLOUCESTER COURT OF REQUESTS ACT.-PLAINTIFF'S COSTS. A defendant cannot object to an issue being tried before the sheriff, on the ground, that he will endeavour to avail himself of the Gloucester Court of Requests Act, because the question of depriving the plaintiff of costs may be considered by the Superior Court after the trial of the cause. A rule nisi had been obtained for a writ of trial, for the purpose of trying the issues between the parties in this cause. Cause was now shewn; and it appeared that the demand was for a sum not exceeding 201. and the venue was the city and the county of the city of Gloucester. A Court of Requests was established for that city by a statute of William and Mary, and the defendant resided within the jurisdiction of the court, and was liable to be summoned thither. It was not clear, however, that the defendant would be able to avail himself of the provisions of the Court of Requests Act, if the cause was tried before the sheriff, and an objection was therefore made to the issue of the writ of trial.The act provided, that if any person should commence any action against any person, residing within the city and county of the city of Gloucester, in any of the courts at West minster, for any debt which on trial should be found not to exceed 40l. over and above costs, no judgment should be entered upon record of any verdict found thereon; and if judgment should be entered, it should be considered null and void; and the defendant should also have his costs taxed to him, and paid by the plaintiff. The question was, whether the word "trial," would apply to a trial before the sheriff; and it was submitted, that it was not such a trial as was contemplated by the act. In support of the rule, some cases were cited, where a defendant had been held in the Court of Exchequer to be entitled to have a suggestion entered under the London Court of Requests Act, though the cause was tried before the sheriff; and on the authority of these cases, it was urged that the rule should be made absolute. Patteson, J. said, that the question entirely turned on the word "trial" in the statute, and whether that extended to a trial before the sheriff. On the recent act giving the trial before the sheriff, the Court had held that a default in proceeding to trial before the sheriff, was a default within the act, 14 Geo. 2. c. 17, and would entitle the defendant to more for judgment as in case of nonsuit. In the present case, therefore, the word “ trial must be considered to apply in the same manner.― Rule absolute. Croad v. Harris, H. T. 1836. K. B. P. C. Exchequer of Pleas. RULE UNDER THE INTERPLEADER ACT-DE- A rule nisi having been obtained under the This was objected to on the part of the assignee under the bill of sale; and it was submitted, that no other claimant could be brought forward under the rule. The Court said, that the assignees ought to be made a party to the rule, which must be enlarged until the claimant under the bill of sale consented. The latter must bring the value of the goods into Court.-Rule accordingly. Kirk v. Clark, H. T. 1836. Excheq. |