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The Legal Observer,
DIGEST, AND JOURNAL OF JURISPRUDENCE.
SATURDAY, JANUARY 8, 1853.
PROSPECTS OF LEGAL REFORM. reformers, and an expression of confidence,
that further measures for the improvement
of our legal institutions, will meet the apTHE NEW LAW OFFICERS.
proval of the Legislature. It could not Upon the retirement of Lord Derby and reasonably be expected that, at such a time, his friends, and before the present admini- Lord Aberdeen should have been prepared stration was constituted, we ventured to to state more explicitly the course to be predict, that whoever assumed the reins of pursued; but, no doubt, soon after the reGovernment, the course of legal improve- assembling of Parliament in February next, ment, traced out in the last Session of Par- the present Lord Chancellor will satisfy the liament, must be pursued. Enough has impatience of the public by stating, whether been done to make it impossible to stand any, or all, of the measures about to be instill, and the temper of the age, and the troduced by the last Government, are now tone of the public mind, alike forbid retro- to be proceeded with. Lord Cranworth's cession. Our anticipations have obtained elevated sense of public duty, and his calm an early confirmation in what fell from the good sense, furnish the best assurance that Earl of Aberdeen in the House of Lords, he will select the measures deemed most on the occasion when he announced the beneficial and requisite, without regard to formation of a Ministry, and the principles the consideration with whom they origiupon which the Government was to be con- nated. His character affords an ample ducted. In reference to the subject of Law guarantee, that he will sanction no change Reform, the Prime Minister thus expressed his judgment does not approve, and adopt himself:
no measure that has not some more solid “Another want, and which I may say recommendation than its novelty. the people have now demanded, has been The new Solicitor-General, Mr. Bethell, the progress of those law reforms, which is understood to have some bold and origiwere introduced by a late Government, and nal views, with respect to the amalgamation which were taken up by the noble and of the jurisdiction heretofore exercised by learned Lord now on the Woolsack (Lord the Courts of Law and Equity respectively, St. Leonards), and prosecuted with so and giving to the judicial decisions of the much vigour, ability, and success in his House of Lords increased scope and signihands.
ficance. How far his position as one of the “This is a matter that must still be pur- Law Officers of the Crown, will enable him sued, and it is, no doubt, one that will meet to give effect to his peculiar sentiments with the concurrence of your Lordships, upon these important questions, or how far and finally will give that satisfaction to the the responsibilities of office may season or public which they have a right to receive. modify views entertained, it may be, without It is an object which we have all had in a very clear appreciation of the practical view, but which, until this time, we have difficulties to be encountered, remains to be not been able to accomplish.”
seen? At all events, the Solicitor-General's An announcement of the general intentions ability and experience justly entitle any of the new Government is here gracefully proposition emanating from such a source, combined with a recognition of the merits of to attentive and candid consideration. the late Chancellor and his predecessor, as law Although only a short period has elapsed,
VOL. XLV. No. 1,296.
166 Prospects of Legal Reform.- New Rules and Orders in Bankruptcy. since Lord St. Leonards stated, from the disposal and might confer great benefits on Woolsack, the measures he was prepared to the commercial community, has ceased to introduce on behalf of the then existing go- be self-supporting, and is all but deserted vernment, the course of subsequent events by suitors! has been so rapid and exciting, that many It is clear, therefore, that the leading require and few can object to have their at- measures of legal amendment announced at tention recalled to the various subjects upon the commencement of the Session, were which his Lordship intimated that it was founded upon a just apprehension of what intended to legislate.
the public expected and required, and we The announcement of proposed measures shall be equally surprised and disappointed, included
if the noble and learned Lord, now placed 1st. One or more bills for the further at the head of the legal department, does Relief of Suitors in Chancery, by the re-not-in regard to the measures last indiduction of expense, and the regulation of cated—cordially and earnestly adopt the the Courts and Officers.
views of his immediate predecessor, though 2ndly. A supplement to the Act 15 & 16 it may be with more or less modification. Vict. c. 83, for amending the Law in relation to Patents for Inventions.
NEW RULES AND ORDERS IN 3rdly. The Bill Abolishing Masters Extraordinary in Chancery, and substituting
BANKRUPTCY. “ Agents (or rather Commissioners] for
[Concluded from page 148]. Administering Oaths in Chancery,” both in town and country.
We propose, in the present Number, to 4thly. A Bill amending the Law. Juris conclude the Analysis of the New Rules diction, and Practice in Lunacy.
and Orders made in pursuance of the Bank5thly. A Bill altering the Jurisdiction, rupt
rupt Law Consolidation Act, and which and amending the Administration of the
take effect from and after Tuesday next, Law of Bankruptcy.
the 11th instant. 6thly. A Bill to consolidate the various
The following are the Rules for taking Acts relating to Offences against the Per accounts of mortgaged property, and the
sale thereof :And lastly; a Commission of Inquiry, R. 55. Upon application (in the manner with a view of founding upon the Report a prescribed by R. 17) by any person claiming measure for harmonising and assimilating to be a mortgagee of any part of a bankrupt's the jurisdiction of various Courts, as regards estate, the Court will inquire whether such Testamentary Dispositions.
person is mortgagee, for what consideration
and under what circumstances, and if no suffiWith respect to the relative importance
cient objection shall appear to the title of the of the various measures included in this person claiming under such security, the Court enumeration, and the best and most effec- will take an account of the principal, interest, tive modes by which the proposed improve- and costs, due upon such mortgage, and ments might be carried out, great diversity cause notice to be given when and in what of opinion necessarily prevails; but the ex. way the mortgaged property shall be sold. pediency and necessity of the chief altera- | The assignees (unless otherwise ordered) to tions announced by the late Chancellor ap
have the conduct of the sale; but it is not to
| be imperative on the mortgagee to make such pear to be very generally admitted. Taking
8 application. into account the reforms already effected in 56. All proper parties to join in conveyance the Court of Chancery, no disinterested when necessary. person desires, and no one supposes, we 57. Proceeds to be applied,-first, in paypresume, that the Accountant-General's ment of costs of assignees, of application to department can be suffered to continue Court, and sale, and then in satisfaction of upon its present footing. The administra. / what shall be found due to mortgagee. Surtion of lunatics' estates, under the superin- ply
non plus to be paid to assignees; but if proceeds
| are insufficient to pay the mortgagee, he may tendence of the Court of Chancery, is a
Y: Is a prove for the deficiency. scandal to the administration of Justice not ninistration of Justice not 58. For better taking of accounts, all parties
? to be longer endured; and the defects of may be examined by Court, and produce upon the constitution and practice of the Court of Bankruptcy have become so apparent,
'See the Table of Revenue and Expenditure that bankrupts and their creditors combine of the
moine of the Court of Bankruptcy, printed unte, p. to seek other modes of administration, and 108, showing a large deficit upon the year a tribunal which has enormous funds at its 1851.
New Rules and Orders in Bankruptcy.
167 oath all deeds, papers, and writings, relating New Rules and Orders. As already stated to the estate or effects of the bankrupt. at page 75, these Rules are a re-enactment of Bankrupt's Balance Sheet.
the Rules made under the Act 5 & 6 Vict. - 59. Bankrupt's balance sheet must be filed c. 122, which are to be found in all the in duplicate, 10 days before the day appointed modern treatises on the Law of Bankruptcy; for last examination. Last examination will it is therefore deemed unnecessary to insert not otherwise be passed : office copies of bal- an analysis of those Rules. ance sheet, or any part, to be provided by pro- The Rules and Orders as to “ Arrangeper officer,
ments under the control of the Court." Allowance of Certificate and Appeal.
under sects. 211 to 223, of the 12 & 13 60. Allowance of certificate to be advertised Vict. c. 106, on the other hand, are altotwo days before the time allowed by statute for gether novel, and are as follow :appeal, and no certificate to be delivered except | 89. Petitions for arrangement to be delivered on production of Gazette, containing such ad.
properly stamped between 11 and 2 o'clock, to vertisement.
the registrar of the day in London, or one of 61. After time allowed for appeal if no ap- I the registrars in the country, who is to file and peal entered, registrar to deliver certificate to number the petition and allot it by ballot. cerbankrupt and to certify allowance to chief tifying the same to the Commissioner to whom registrar.
| it is allotted, and before whom such petition 62. Before application for recal of certificate, she
te: shall be prosecuted. Proviso, that one Comor appeal against the judgment of the Court | missioner' may act in the absence of another, allowing, refusing, or withholding, or class of
and that a second petition, by the same peticertificate, the creditor or assignee or bankrupt tioner, is to be allotted to the same Commisappealing, to deposit with chief registrar such sio
nsioner. sum, not less than 10l., and not exceeding 401.,
06. 90. Two fair copies of petition to be deas Commissioners shall direct, to satisfy such livered with original, one for Commissioner and costs as the appellant may be ordered to pay. I the other for official assignee and creditors. In the absence of any direction 201. to be de
| 91. Before appointment of any sitting under posited.
such petition, iol., or such other sum not ex63. Notice of appeal against allowance or refusal, or withholding of certificate, to be left I be deposited with official assignee, for costs of
ceeding 301., as Commissioner shall direct, to with chief registrar, who is to enter in the cer
cer- sittings and other necessary expenses. tificate book the time and nature of such ap-1° 0° When petitioner in custody, certificate peal, and the date and substance of any order of causes of detention to be annexed to petition. made thereupon. 64. Affidayits in support of petitions of ap- to
1 93. Notices required to be given with respect
arrangements, to be sent or served by the peal against allowance, refusal, or withholding
messenger of the Court. of bankrupt's certificate or class thereof, to be
94. Petitioning traders account to be attested filed at the time of filing petition of appeal.
by solicitor, and copy furnished to official asAudits.
signee 10 days before day appointed for private 65. Bills of solicitors and messengers to be
hesitting of the Court. delivered to Registrar for taxation five days
1 95. No person to be present at any sitting,
or to inspect proceedings, except creditors or before audit. If audit adjourned by default of
their authorised attorneys, the official assignee solicitor or messenger in that behalf, solicitor
and his clerk, and the petitioner and two peror messenger to pay the costs of the adjourn.
sons to accompany him. ment. No sum to be paid to any solicitor or
1 96. Minutes of the proceedings at such site messenger, on account of his bill, until taxed. 66. Audit accounts of official assignee, or
tings to be kept by the registrar. creditors' assignee, to be made out in a speci
97. Affidavits to be entitled in the Court
and “in the matter of a petition for arrangefied form, and to be uniform in all the Courts.
ment between A. B. and his creditors.” 67. At every audit, the debtor and property
1 98. Forms of order for protection of petitionbook of the official assignee to be examined
Cause of and compared with audit paper.
ing trader under sect. 211, of renewal of pro
tection, of release of petitioning trader from moneys remaining uncollected to be ascer
custody, of approval of resolution accepting tained, and a minute thereof made and filed. with proceedings. The debtors to be sum
petitioning trader's proposal, of protection
from arrest to be indorsed, and of account to moned, examined on oath, and examination
be filed by petitioning creditor, as given in filed. Court to direct further proceedings against such debtors.
$ schedule, to be used, with necessary variations.
Arrangement by Deed. The rules founded on sections 78 to 86
99. Forms of certificate by trustee or inspecof the Bankrupt Law Consolidation Act,
Co tor, or of two creditors, and of account to be which relate to the summoning of a trader appended; of the affidavit of the trader to acdebtor, in order to compel an act of bank- company the certificate ; and of the certificate ruptcy, are numbered from 68 to 88 of the by the Court of execution of requisite number 168
New Rules and Orders in Bankruptcy.-Repeal of Certificate Duty. of creditors, as given in schedule, to be used, and their duties ; but as those Rules are not with necessary variations.
new either in terms or substance (with the Enforcing Orders for Payment.
single exception of the scale of allowance 100. Orders for payment of money and printed, ante, page 2), it is deemed unnecosts, or either of them, to be signed by Com-cessary to reprint them. missioner, scaled and counter-signed by regis- / Rule 161 declares, that these Orders as trar, and filed.
to official assignees under bankruptcies, are 101. Order for costs to contain leave to to be applicable to official assignees apissue execution.
pointed under petitions for arrangement. 102. Costs ordered to be paid to be taxed, and allocatur signed and dated by taxing
| Rule 162 directs, that printed copies of the officer.
Rules are to supplied by the chief registrar,
e order and Rule 162, the last of the series, refor payment of money or costs, to be sealed scinds all former Rules and Orders, and and issued by chief registrar, on production of directs that the present Rules and Orders order or allocatur
shall take effect from and after the 11th 104. Præcipe, in specified form to be filed day of January, 1853. with chief registrar upon issuing writ of execution.
105. Chief registrar to keep præcipe book REPEAL OF CERTIFICATE DUTY. with alphabetical index.
106. Writs of execution to be in specified Our several correspondents, who have form, sealed, and executed by sheriff or other
inquired regarding the measures to be officer to whom execution of writs out of Superior Courts belongs, and who is to be al- copred at the adjourned
ali adopted at the adjourned Session of Parlowed same fees as in Superior Courts. liament on the 10th February, are informed
107. Writs to be tested in name of Senior that, according to the notice which will be Commissioner, and returnable immediately found on the votes and proceedings of the after execution, before the Court of Bank- House of Commons, Lord Robert Grosruptcy in London.
venor will, on as early a day as possible, 108. The amount to be levied, the name, oc
OC move for leave to bring in the bill. cupation and address of the debtor, and the
No doubt, the new Chancellor of the name and place of business of the solicitor to be indorsed on writ.
Exchequer will be previously applied to, 109. Venditioni exponas to issue, on return and his intentions ascertained. that goods are seized but not sold.
If no satisfactory answer can be obtained, 110. Returns to be filed with chief registrar, we presume the Incorporated Law Society and entered in præcipe book.
will communicate, as heretofore, with all 111. Entry of satisfaction in whole or in part. the other Law Societies, and with Solicitors 112. Order for entry of satisfaction. 113. Amendment of writs and precipes by Law Societies, and suggest the course to be
in the cities and towns where there are no Court of Bankruptcy as in Superior Courts.
adopted by letters to their Representatives Course of Priority of Payments.
and by petitions to the House. 114. After payment or retainer of all monies. In the meantime, the solicitors, both in duly paid by the official assignee, and of the town and country should take an early official assignees' percentage, the messenger and broker are to be paid to the choice of as
opportunity, during the recess, of urging signees, and then the solicitor, acting in the
every member with whom they are acmatter of the petition, until the same time,
quainted to consider the grounds of their
quainted to 115. In case the joint estate is insufficient. claim to relief, the justice of which cannot Court may order costs to be paid out of sepa-| be disputed. rate estate.
We may repeat the language of the late Composition after Adjudication.
Chancellor of the Exchequer, and trust that 116. Minute of first meeting (under 12 & 13 the great party of which he was the head, Vict. c. 106. ss. 230 and 231), to be taken by as well as the new Government, will adopt solicitor to assignees, and to distinguish which his sentiments : of the creditors assent to composition. 117. Second meeting to be before Commis
“Nothing is more prejudicial to the country sioner, who is to inquire whether the Statute Re
tuta generally, than that considerable classes of her complied with
Majesty's subjects should consider that they 118. Certificate of Commissioner stating
are liable to regulations injuriously affecting what proportion of creditors who have proved
their industry, and from which the rest of the assented, and if any sale made.
community is free.” Mr. Disraeli also said
“Therefore, if there be on the part of the The Rules and Orders, numbered from shipping body, or on the part of any other 118 to 161, relate to the official assignees class in this country, well-founded claims
Repeal of Certificate Duty.—Law of Attorneys.— Fees in the Common Law Courts. 169 to the consideration of Parliament, it is highly ceed with it. The case of Nicholls v. Wilson,' expedient, not only to the interest of public which decided that there may be circumstances morality, but from the most utilitarian con- which would dispense with such a notice had sideration that could possibly occur to the been relied on. But I do not think that the most unsentimental minds, that we should present case forms any exception whatever to enter into these questions, ascertain the merils, the general rule, that as long as the suit is going and decide accordingly.” And again he urged | on, so long is the attorney bound to attend to “That all real grievances may be remedied, it; and he cannot sue for his costs during such that we shall cease to hear of the claims of a period, unless some communication takes place particular interest as subject to burthens and between him and his client, by which the revezations, from which the community are free.” | tainer is so far.put an end to as to give him a
right of action. It could not be left to the LAW OF ATTORNEYS.
jury to say whether the cause had not been brought to such a difficult and perplexing pass as to afford no reasonable prospect of arriving
at a termination. and therefore to be considered, OBLIGATION TO CARRY ON SUIT. -END
for all practical purposes, as brought to a conOF RETAINER.
clusion. Here the plaintiff's cause of action ALTHOUGH, as a general rule, an attor- did not arise before the death of the client, and ney is bound to carry on a suit to its termi. I therefore the debt was not barred by the nation, and cannot in the meantime sue for
| “Parke, B.-The rule as applicable to this his costs, yet he may call on his client for
Tor case, was correctly laid down in Harris v. Osadequate funds, and in case of refusal, may I bourn.? that an attorney under a retainer to condecline to proceed ; and the retainer being duct a suit, undertakes to conduct the suit to its determined by the death of the client, the final termination, and he cannot sue for his bill attorney may sue his representatives. The until that time has arrived, subject, however, to Statute of Limitations, in such case, does the exception there stated, and subject also to not begin to run till the retainer has so
the additional exception which arises upon the ceased.
death of the client, in which case he can sue
the personal representatives. But Mr. PhipIn a case in the Court of Exchequer, re
re- son seeks to introduce another qualification to cently reported, the facts were, so far as the rule : for he contends that where a suit in essential to the decision, as follow : the Court of Chancery falls into a state of sleep
In 1835, Ann Lord, retained the plaintiff for a lengthened period, the attorney may sue as her solicitor in a suit. In 1840, upon the his client when a reasonable time has elapsed suit being heard, an order was made that a after the suit has fallen into such a state. But supplemental bill should be filed, but such I think there is no authority for that position. bill was never filed, nor any other proceed
od I cannot imagine that there should not be some
means of terminating the soit; and unquestioning taken. Ann Lord died in June, 1851,
DO!, |ably he might have given his client a notice in and the defendant took out letters of admi- the same way that he gave notice to her reprenistration; and in July the plaintiff gave sentative. The plaintiff's claim is therefore the defendant a written notice that, unless not barred by the Statute, and this rule ought the sum of 301. was paid to him for his to be discharged. Whitehead v. Lord, 7 Exch. bill of costs, he should cease to act any R. 691. longer as solicitor in the suit. The plaintiff claimed in the present action the sum FEES IN THE COMMON LAW COURTS. of 681., for costs and charges due to him up to Michaelmas Term, 1840, when the last
INCREASE OF FEES. proceedings in the suit were taken. At the trial, the defendant insisted, that
We recently adverted (p. 126, ante), to the the Statute of Limitations barred the plain. increase in many of the Common Law Fees tiff's claim. Under the direction of Mr. which the Treasury thought fit to levy under Baron Martin,, a verdict was found for the the new Procedure Act. Great disappointment plaintiff for 681., with leave to the defend has been occasioned by these Taxes on the Adant to move to set aside that verdict; and ministration of Justice. It was understood to the following extracts from the judgment of be the object of the Legislature that these tolls the Court will show the present state of the at every stage in legal proceedings should be Law on this subject :
either abolished or reduced to a moderate “Pollock, C.B. The simple point is, whether amount. It may be useful to place before our the plaintiff's claim is barred by the Statute of readers some remarks applicable to this Scale Limitations, the suit in which he was retained of Fees, in order that the extent of the increase not having been terminated, and no notice having been given by him that he would not pro- '11 M. & W. 106. ? 2 Cr. & M. 629.