508 Analytical Digest of Cases: House of Lords. RAILWAY CONTRACTS. survivor of the settlors, and not sooner: and if any younger son died, or became an eldest or Complicated accounts.-Bill or action.-N. only son before 21, or any daughter died before and S. contracted with a railway company, that age unmarried, or before his or her por-jointly and severally, to execute railway works, tion became vested, the portions provided for according to specifications and prices contained such son or daughter, so dying, &c., before his in a former contract between N. and the comor her portion became payable as aforesaid, pany. S. was to advance the money necesshould survive and accrue to the survivors of sary for the execution of the works, and to such daughters and younger sons, to be equally receive from the company all monies ac divided between them, and paid when their ori- cruing due from them in respect of the ginal portions should become payable." works, and apply them in discharge of N.'s liabilities under his contracts. S. became a bankrupt at the completion of the works, and the company, after paying him and his assig nees part of the monies due from them, refused account with N. for the balance, whereupon he filed a bill for an account against them and S.'s assignees. Then followed a proviso for the issue of a younger son or daughter dying in the lifetime of the settlors, or after their death before his or her portion became due and payable: and a trust, after the death of the settlors, for main-to tenance of such sons and daughters, or their issue, entitled to portions as aforesaid, until his or her portion became payable: with cesser of Held, that although the case against the comthe term, on payment of the portions, or in pany consisted of matters cognizable at law, case there should not be any younger children yet as there were complicated accounts between or issue of them living at the death of the sur-them and the other parties respectively, a Court vivor of the settlors. The settlors had seven children (besides an Ca. 43. Illegal charges.-Repayment with interest. Costs.-A decree giving effect to allegations read from an answer, not proved nor admitted, is varied in that respect, and an inquiry on the subject is directed before the Master. Monies paid for the use of a railway, under protest as overcharges, were afterwards paid into Court under an order made by consent, and vested in the public stocks, to abide final judgment in an action brought to try the legality of the charges, which the judgment declared to be illegal: Held, that the party who paid the monies was entitled to the stocks and dividends and accumulations thereof. After the judgment at law finding payments made to the railway company to be overcharges, a bill filed, pending a writ of error on that judgment, to restrain the company from continuing the overcharges, and for an account, &c., is not improper nor premature, and the plaintiffs are entitled to the costs. Barrett v. Stockton and Darlington Railway Company, 1 House of Lords' Ca. 18. of Equity was more competent to take them, and to dispose of the whole case, than a Court of Law, and the bill was sustained accordingly. Taff Vale Railway Company v. Nixon, 1 House of Lords' Ca. 111. Case cited in the judgment: O'Connor v. Spaight, 1 Sch. & Lef. 309. SETTLEMENT. See Marriage Settlement. SCOTLAND. See Apportionment of Rent. STATUTES, CONSTRUCTION OF. See Apportionment of Rent; Excise. WILL. Construction of the word " surviving.”—A testator, after various bequests, gave to his wife, for life only, all his remaining estates, and also gave her all his capital in trade, with the threequarters of the profits arising therefrom, for her life; but nevertheless, in trust, at her death. for his then surviving children, share and share alike, "independent of the rental of his said estates, which he gave and bequeathed to his surviving female children," to be paid to them as he directed. The testator then proceeded thus :-" On the decease of any of these children, should they die without issue lawfully begotten, that share to fall to the rest, and so on to the last female child; but should they marry and have children, then their share to go to the said child or children, and from my last female child to the males of my body lawfully begotten, with the same restrictions as before expressed, and to the heirs and assigns of the last of them." One of the testator's daughters, after his death, married, and died in the lifetime of the widow, leaving children: Held, that such children did not take any interest under the will, the word "surviving" having refer ence to the death of the testator's widow, and not to his own. Wordsworth v. Wood, 1 House of Lords' Ca. 129. See Evidence. WITNESS. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, APRIL 1, 1848. -“Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. BANKRUPTCY AND INSOLVENCY is to punish fraudulent and reckless traders, LAW AMENDMENT. and to protect and assist those who have sunk under the pressure of misfortune. In a recent number (ante, p. 454,) we The result must frequently depend upon the submitted to our readers in extenso, the machinery employed, and the course of proproposals of the Metropolitan Society of cedure adopted in investigating whether Merchants, Bankers, and Traders, for the the debtor is blameless, or has given just amendment of the Law of Bankruptcy and ground for complaint. When the fact is Insolvency. Having repeatedly expressed ascertained, and we are able to discriminate our cordial concurrence with the general between the unfortunate and the extravagant objects of this association, and our appre- or dishonest trader, care must be taken that ciation of the value and importance of the the punishment of the latter should not be services rendered by it to the commercial disproportioned to the nature and character and trading community, we proceed, in no of the offence, nor accompanied by such a unfriendly spirit, to consider the various degree of severity as to render the law alterations now suggested as remedies for odious and excite feelings of sympathy and the admitted evils arising from the existing commiseration for the offender. These state of the Law of Debtor and Creditor. considerations cannot have been overlooked The unsatisfactory, and in many instances by the committee entrusted with the preabortive, attempts recently made to wind paration of the statement in question, but up the affairs of insolvent firms by voluntary it may be doubted whether they have always arrangements, and without reference to been kept steadily in view during the disestablished legal tribunals, conclusively de- cussion of the various changes now recommonstrate how beneficial it would be to the mended. public if the administration of the Bankrupt The first and greatest of the proposed Laws were placed on such a footing that alterations is, a return to the principle of debtors and creditors might resort to them arrest for debt upon mesne process. This universally for protection and justice. On principle had our support when its advocacy a former occasion, when discussing the pro-was far less popular than it has now be posed amendment of the Law of Debtor and come amongst the legal profession and the Creditor, (ante, p. 106,) we ventured to trading community. We ventured to doubt suggest, that in framing such laws, the in- the expediency of depriving the creditor of terests and feelings, as well as the rights of his best, and frequently his only security, debtors, were not wholly to be disregarded, by abolishing arrest for debt, at a time when and we still continue to think this consider- those who entertained and expressed such ation not unworthy the attention of those doubts were stigmatised and ridiculed by who peculiarly represent the creditor class. the then Attorney-General (Sir John CampIt is not enough to say, that the intention bell) as parties having "a tender regard for VOL. XXXV. No. 1,047. 510 Bankruptcy and Insolvency Law Amendment, the vested interests of sheriff's bailiffs." ment for the purpose of extorting money The injurious operation of the measure on from, or forcing arrangements upon, the private credit is now universally understood, bankrupt, for the benefit of the individual and we doubt not great benefit will arise creditor, and without any regard to the from retracing our steps and restoring the interests of the general body. It is conlaw of arrest, if the statutory enactments stantly found that the least meritorious for effecting this object be framed with due creditors are those who are the least forcaution and consideration. The committee bearing and most vindictive in their prohave adopted the provisions of a bill for this ceedings against the debtor, and if every purpose introduced to the House of Com- creditor had the power of committing a mons by Mr. Warburton, in the session of bankrupt trader to prison, the power would 1846, and the sufficiency of these provisions be exercised by unprincipled men for pur will be more conveniently considered on a poses utterly at variance with the objects future occasion. and principles of the Bankrupt Laws. The second proposal of the committee is, There is no reason why this difficulty that the Bankrupt Commissioners should should not be provided against by judicious have absolute discretion to refuse or with-enactments, and we hope to find the clauses draw the protection of the bankrupt, that it prepared by the committee effectual for this should be compulsory not to grant pro- purpose. tection under certain circumstances of fraud The next suggestion of the committee, or misconduct, and that creditors who have though not open to any serious objection, proved their debts under a fiat should stand we confess, does not strike us to be of any in the position of judgment creditors, and great importance. It is proposed, that cri be at liberty to take a bankrupt deprived of minal proceedings against fraudulent bankprotection in execution, and detain him in rupts should be defrayed out of the national prison for a period not exceeding three funds, instead of out of the bankrupt's years, unless the Commissioner who with- estate. No doubt, it would be desirable that drew the protection should otherwise order. the parties who undertake criminal prosecuWe are disposed to think that the alteration tions bona fide, with the view of furthering here proposed, with certain modifications, the ends of justice, should be uniformly inmight operate very beneficially. Under the demnified against expense, but there does present law, a creditor who proves under a not seem to be any good reason why prose fiat is ipso facto deprived of his legal cutions for offences against the Bankrupt remedies against the bankrupt, and it con- Laws should be the subject of any peculiar stantly happens that when a certificate has rule with regard to expenses; and if the been suspended for fraud or gross mis- proposals of the committee are carried into conduct, all the judgment creditors having proved, there is no creditor in a position to take the bankrupt in execution, and none who will incur the expense of proceeding at law to obtain a judgment. The consequence is, that the suspension of the certificate merely operates to prevent the trader from embark- To obviate the practical difficulties now ing in business again in his own name, and arising in establishing an act of bankruptcy however blameable or dishonest, he suffers upon a summons issued under the 5 & 6 Vict. no personal punishment or inconvenience. c. 122, s. 11, it is proposed; 1st, to simplify may be reasonable to provide that when the notice and affidavit preliminary to ob the bankrupt's estate has yielded a certain taining a summons; 2udly, to facilitate the sum-suppose 158. in the pound-he should notice of the service of summons; 3rdly, to be discharged from custody. The circum- require evidence from the debtor beyond his stance that the creditor has taken his pro- mere affidavit, of his having a good defence portion of the assets of the bankrupt's estate to the creditor's claim; and lastly, to reupon distribution, ought not, perhaps, to quire security by bond with sureties, for the deprive him of the power of taking the protection of the debtor's property during bankrupt in execution, as the imprisonment the interval between the return of the sumis meant to operate as a punishment for mons and the completion of the act of bankmisconduct on the part of the bankrupt, ruptcy, and in default of such security, or and not as a satisfaction to the creditor. upon the non-appearance of the debtor, to Still, precautions must be taken to prevent empower the Court to direct one of its creditors from using the power of imprison- officers to take charge of the debtor's pro It effect, and plenary power given to the Commissioner and the creditors to punish the bankrupt for fraud and misconduct, we ap prehend it can seldom or never be necessary to proceed against a bankrupt by indictment. Bankruptcy and Insolvency Law Amendment.—Unnecessary Actions Prevention Bill. 511 The suggestions of the committee to facilitate the administration of insolvent estates in the Court of Bankruptcy, and to remove unnecessary sources of expense and delay, have for the most part our cordial approval, but we are compelled to defer the further consideration of the recommendations which fall under this head, until next UNNECESSARY ACTIONS PRE- perty. As to the first of these suggestions, |factorily provided for, perhaps the interval the form of the affidavit and notice is pre- of fourteen days now allowed between the scribed by act of parliament, and seems service of the summons and the completion sufficiently simple, but the general rules of the act of bankruptcy, may in certain and orders made for carrying this portion cases at all events, be advantageously of the act into effect, have become the sub- abridged. ject of general and well-founded complaint, and require to be not only simplified but considerably modified. Service of the notice and summons must now be personal; and, considering the serious consequences which follow to a trader who does not appear to a summons issued under the act, it does not seem proper that personal service should be dispensed with, unless in cases where it week. is proved to the satisfaction of a Commissioner, that the debtor keeps out of the way to avoid service. It is only under circumstances similar to those which justify the issue of a writ of distringas to compel appearance in an action at law, that personal LORD CAMPBELL has presented to the service should be dispensed with in pro- House of Lords a bill "for preventing the ceeding to render a trader a bankrupt. The unnecessary multiplication of actions in proposal to oblige the debtor to give some certain cases," consisting of a single clause, evidence beyond his own affidavit, that he which we print without curtailment. The has a good defence to the summoning cre- object of the bill seems to be to give a ditor's demand, is well deserving of con- person standing in the relation of a husband sideration. The form of the affidavit or father, to whom a right of action has given by the act, (sched. B., No. 2,) ope- accrued for a tort, the right of proceeding rates as a positive encouragement to perjury. in the same action for an injury committed The debtor is not required to make the com- to the wife or infant child of the plaintiff. mon affidavit of merits, but is only called upon The law, as we understand it, now is, that to swear that he "believes he has a good if an action be brought for personal sufferdefence to the demand," an affidavit which ing or injury to the wife, inflicted during an unscrupulous and unprincipled debtor can the coverture, the husband and wife must always find abundant excuse for making; join; but the husband cannot join in this and according to the present practice of the action any cause of action for which he Court of Bankruptcy, upon such an affidavit might sue separately. For instance, in an being produced, the summons is not only action by husband and wife for an injury dismissed, but dismissed with costs, to be done to the wife, the husband cannot recover paid by the summoning creditor. The pro- damages for the loss of the wife's society or ceeding in many cases is a mere mockery. assistance, or for the expenses incurred in The proposition to require security by bond, curing her ; but for such consequential inwith sureties, for the protection of the juries he may and ought to sue alone. So, trader's property, after the summons and with respect to injuries inflicted on a child before the act of bankruptcy is complete, of tender age, as the law now stands, the presents various difficulties. No doubt the father cannot sue, unless there be evidence interval is often employed by a dishonest to sustain an allegation of loss of service, or trader, in placing his property beyond the the parent has necessarily incurred some reach of his creditors. Still, it must be consequential expense. The practice in borne in mind, that the seizure of property those cases is to sue in the infant's name by by an officer of the Court of Bankruptcy guardian for the injury inflicted on the would frequently operate harshly with re- infant, and the parent must bring a separate spect to a debtor who was not insolvent, by action for any loss or expense to which he preventing him from paying, securing, or has been put. It must be admitted that compounding with his creditor, and thereby this is a state of the law which renders some avoiding the commission of an act of bankruptcy. If this difficulty cannot be satis * 5 & 6 Vict. c. 122. Schedule A., No. 1. b Russell v. Corne, 1 Salk. 119; Dengate v. Gardiner, 4 Mees. & W. 5. Hall v. Hollander, 4 B. & Cres. 660; Blay mire v. Haley, 6 M. & W. 55. 512 Select Committees on Election Petitions.-Lawyers in Parliament. amendment desirable. Whether Lord the present parliament, (under the statute Campbell's bill supplies an effectual remedy 7 & 8 Vict. c. 103,) have nearly concluded our readers shall judge for themselves. To their labours, and it must be confessed the our judgment, it appears that the clause is not very clearly or happily framed. It is as follows:: "For preventing the unnecessary multiplication in actions in certain cases herein-after men result has not been such as to inspire confidence that the purity and independence of the elective bodies may be universally relied upon. In no less than ten instances, brought before committees, have the returns for that number of cities or boroughs been declared void, on the grounds that bribery or treating prevailed to such an extent as to influence and thereby vitiate the elections. That corrupt and illegal practices of this description should be, even temporarily, successful must be deplored by persons of all parties who approve of a representative system of government, but it is consolatory to reflect that the select committees have done their duty impartially and unflinchingly, and that in no instance has it been even insinuated, inside or outside the walls of parliament, that any one of the committees has been influenced in its determination by political or personal feeling, or tioned, be it enacted, &c., That when, by reason of any trespass or unlawful act or neglect, a cause of action hath or shall have accrued to any person for some loss or injury to such person, and also another cause of action to such person in respect of loss or injury caused by the same trespass or unlawful act or neglect to the wife or child of such person, such child being under the age of 21 years, it shall not hereafter be necessary to bring more than one action in respect of such several losses or injuries, but the husband or parent shall in such case bring an action to recover damages, not only in respect to the loss or injury to himself or herself by such trespass or unlawful act or neglect, but also in respect to the loss or injury thereby caused to such wife or child; and the jury shall assess the damages separately in respect of the loss or injury sustained by such by any other consideration than that arising party; and such plaintiff shall hold such sum from a just appreciation of the important of money as he may recover for loss or injury but unpleasant public duty the members of to his or her child as a trustee for such child, those committees were solemnly pledged to and shall pay it over to such child on such perform. child attaining the age of 21 years." Without reverting to the period anteceIt does not clearly appear, whether the dent to the Grenville Act, (10 Geo. 3, c. learned framer of the bill intends, that a 16,) it was perfectly notorious, that under cause of action accruing to the father in his the late act, (the 9 Geo. 4, c. 22,) what own right, and another for an injury done was familiarly termed "striking the brains to his wife or child, should be contained in out of a committee," was deemed an operathe same count of the declaration, or form tion of the greatest importance to the parties, the subject-matter of separate counts. Nor and that it was universally felt, the result does the provision which entitles the parent depended at least quite as much upon the to hold the sum recovered for an injury to constitution of the committee as upon the his child, until the child attains the age of merits of the petition. It is impossible not 21, and then directs it to be paid over, to feel that the establishment of a tribunal appear to us to be quite satisfactory. Is for the trial of election petitions, acting in s the fund thus held in trust for an infant to judicial spirit, not subject to unworthy sus be liable to the payment of interest? and picions and justly entitled to public confiwhat means are to be taken to enforce pay-dence, is an improvement upon the former ment when the child comes of age? We system, which cannot fail in time to elevate are not certain that this enactment may not the character of the representative body, introduce an amount of social mischief and and indirectly to discourage and repress undomestic disunion which would more than due proceedings at elections. counterbalance any benefit to be derived from it. At all events, we trust the bill may not without further consideration. pass Having directed attention to the most gratifying feature disclosed by the proceedings of the select committees during the present session, we may observe, that the SELECT COMMITTEES ON ELEC-only member of the legal profession who TION PETITIONS.-LAWYERS PARLIAMENT. IN has lost his seat by petition is Mr. John Jervis, who was returned for Horsham. In this case, the zeal of injudicious friends furnished such evidence of illegal treating, that THE Committees selected for the trial of the return was not considered defensible. controverted returns of members to serve The petitions against the returns for the |