« EelmineJätka »
Baily, Jessel, and Holl for the plaintiffs;
The defendant's son was arrested on March 20, 1849, and remained in custody of the The Vice-Chancellor said, he concurred in sheriff's officer until April 24, when he the written opinion of Mr. Justice Willes, who was committed to prison, whence he was had rendered his assistance when the case was discharged on May 26. On the previous argued, that no act of bankruptcy was shown day he had executed a deed of assignment to have taken place prior to the adjudication, of certain property in favour of the defend- and that consequently by the operation of the ant: Held, that a petition in bankruptcy, 12 & 13 Vict. c. 106, s. 88, the plaintiffs' title presented on May 20, 1850, on which an was bad. The question turned on s. 69 of the adjudication was made on June 7, did not Act, which pointed to one act and not to reentitle the assignees to sue to set aside the peated acts of bankruptcy by a lying in prison deed, as more than one year had elapsed for 21 days, and there was no reason for strainsince the expiration of 21 days after the ing the language so as to create a fresh act of bankrupt had first been arrested. bankruptcy on each and every successive 21 Held, that the year cannot be computed from days, whereby according to the Statute an act the last 21 days of lying in prison. of bankruptcy was committed. This species THIS was a bill by the assignees of a bank- of act of bankruptcy was created by the i Jac. rupt, the defendant's son, to set aside a deed 1, c. 15, s. 2, the time being six months, and of assignment of certain property, dated 25th to the end of which period the title of the asMay, 1849. It appeared that the bankrupt signees related back. Under that Statute the had been arrested on March 20, 1849, and re- party must be a trader when arrested (see also mained in custody of the sheriff's officer until Exparte Lynch, Mont. 453), and it was not inApril 24, when he was committed to prison, tended to revive debts incurred during the imwhence he was discharged on May 26. A pe-prisonment, but it was sufficient that debts tition in bankruptcy was presented on May 20, 1850, and on June 4 four days' further time was given to the petitioner, and the adjudication took place on June 7.
existed at the time of the arrest and that the act of bankruptcy was committed. This time was reduced by the 21 Jac. 1, c. 19, s. 2, to two months, which were again reduced by the 6 Geo. 4, c. 16, s. 5, to 21 days, and the relation of the act of bankruptcy to the time of the arrest was abolished. The period of 12 months was introduced by the 5 & 6 Vict. c. 122, s. 7, and was amply sufficient to afford the creditors time to proceed. The assignees had therefore no right to proceed, and the bill would be accordingly dismissed, but without
By the 12 & 13 Vict. c. 106, s. 69, it is enacted, that "if any such trader, having been arrested or committed to prison for debt, or on any attachment for nonpayment of money, shall upon such or any other arrest or commitment for debt or non-payment of money, or upon any detention for debt, lie in prison for 21 days,-or, having been arrested or committed to prison for any other cause, shall lie in prison costs. for 21 days after any detainer for debt lodged against him, and not discharged ;-every such trader shall thereby be deemed to have committed an act of bankruptcy;" and by s. 88, that "no person shall be liable to become bankrupt by reason of any act of bankruptcy committed more than twelve months prior to the issuing of any fiat in bankruptcy or the filing of any petition for adjudication of bankruptcy against him, and that no adjudication |
Court of Queen's Bench.
Held, that in order to enable a mandamus to issue on an ecclesiastical officer to deliver up certain wills and documents to which another officer was entitled upon a separa
Superior Courts: Queen's Bench-Common Peas.
tion of two offices formerly held by the same person, a distinct refusal must be shown. It is insufficient where the officer only asked for time in order to separate the several wills, &c., to which the other officer was entitled. A rule nisi under such circumstances was discharged, with costs.
THIS was a rule nisi for a mandamus on the deputy registrar of the Archdeaconry Court of Warwick, to deliver up to Mr. Charles John West, the registrar of the Commissary Court of the Bishop of Norwich, all the wills and other documents belonging to that Court. It appeared that in the Archdeaconry of Norwich there were two Courts, the one of the Archdeacon and the other of the Bishop's Commissary, which exercised similar jurisdiction, and had heretofore been held by the same person. The office was now divided, and the Commissary claimed to have the wills, &c., in his department. All the documents were kept in the same building, but the original wills were easily distinguishable, but the copy of both classes of wills were entered in the same book, which was bound up at the end of each
H. Hill and Blackburn showed cause against the rule, which was supported by Palmer.
The Court said, that Mr. Hansell had not claimed the documents belonging to the Commissary, but had only asked for time to separate them, and had offered to devote a portion of each day to the task. There had therefore been no refusal, and the rule would therefore be discharged with costs.
A sequestration issued in respect of a living belonging to the see of Canterbury and directed to the archbishop. The living was afterwards transferred to the Bishop of London: Held, that he should execute the writ without a new one being issued, as he was quoad the successor of the archbishop. THIS was a rule nisi on the Bishop of London to return and pay over to the plaintiff in this action, the amount levied under a writ of sequestration upon a judgment against the defendant, who was the incumbent of Newington, Surrey. It appeared that this parish formerly formed part of the see of the Archbishop of Canterbury, to whom the sequestration was directed, but had been lately transferred to the diocese of the Bishop of London, together with the sequestration in question.
H. Hill and Badeley showed cause against the rule.
The Court (without calling on W. H. Cooke in support) said, that quoad the parish of Newington the bishop was successor of the archbishop, and as successor he was bound to execute writs of sequestration although directed to his predecessor. The rule would therefore be made absolute.
Court of Common Pleas.
COMPROMISE OF FEIGNED ISSUE. AUTHO-
Held, that the authority of counsel to agree
On a feigned issue from Chancery the matter was compromised by order of Nisi Prius which was afterwards made a rule of Court: Held, that an application for disobedience thereto should be made at law and not in equity.
The plaintiff refused to fulfil the agreement
against the plaintiff for non-obedience to a rule
Watson and Cole showed cause, citing Doe d. Earl of Cardigan v. Bywater, 7 C. B. 794; Doddington v. Hudson, 1 Bingh. 257.
Attorney-General and Whateley in support, referred to Furnival v. Bogle, 4 Russ. 142; In re Hobler, 8 Beav. 101.
The Court said, that the objection that the application should have been made to a Court of Equity, as the issue was for the purpose of assisting that Court in disposing of a suit there, was unfounded, as the issue was a proceeding in this Court, and the agreement had been made a rule of this Court, which was therefore the proper tribunal to punish a contempt. Then on the objection that the arrangement was made by counsel without authority, the Court could not listen to such an objection. It would be fatal to the administration of justice if the authority of counsel were allowed to be questioned, as if he did what a client repudiated, the course was for the client to withdraw his brief. Then as to there having been no contempt. Although in the communications with the attorney, there had been shown great disinclination to perform the agreement, yet this was before the order at Nisi Prius was made a rule of Court. There was therefore no refusal to obey a rule of Court, and the refusal in question could not be construed into a continuing one. As this was in the nature of a criminal proceeding, the rule of practice must be strictly adhered to, and the plaintiff be served with a copy rule personally and a performance be demanded. The rule must be discharged, but without costs, and without prejudice to any further application.
The Legal Observer,
SATURDAY, JUNE 28, 1856.
REMAINING LAW BILLS IN PARLIAMENT.
Ir is rumoured, that endeavours will be made to close the business of the Session of Parliament earlier this year than the last. The prorogation took place in 1855, on the 14th August. We are now nearly at the end of June, and there remains therefore but little more than a month to go through the labour of considering, amending, altering, and revising the numerous bills which are still, after the lapse of five months, before one or other of the Houses of Parliament. There must, as usual, be a large number negatived or withdrawn, or appointed to be read three or six months hence.
We propose, therefore, again to devote a small space in order to bring to the notice of the profession the principal bills wherein they are more or less interested, either for themselves or their clients.
For a large class of the proprietors of estates, and those interested under wills and settlements, together with their respective solicitors, the Settled Estates Bill, holds a prominent position. There is ample time to pass this measure through its remaining stages in the House of Commons, and unless that branch of the Legislature should make any material alterations, the bill will go back to the House of Lords, and may receive the royal assent before the close of the session.
Next to this measure, we look upon the Joint Stock Companies Bill, including the principle of limited liability, and the Law of Partnership amendmend Bill, as highly important both to the commercial classes and to the attorneys and solicitors whose legal services they will require, and which assistance must, indeed, be indispensable in carrying the provisions of the new law safely into effect.
The Ecclesiastical Courts Bill is also of great professional importance. We observe that Lord Lyndhurst has brought up the report of the Select Committee on the Divorce and Matrimonial Causes Bill, and that this measure, which is essential to the completion of the reforms relating to the Ecclesiastical Courts, will shortly be considered in a Committee of the whole House. If the subject of divorce and matrimonial grievance can be satisfactorily arranged, it will go far towards assisting the other VOL. LII. No. 1,477.
more general bill for establishing a Court of Probate and Administration. Yet it must not be forgotten that there still remains to be provided some sufficient enactments relating to church or rather clergy discipline. The Lord Chancellor's bill on that subject was negatived, and we observe that the Bishop of Exeter's "Clergy Offences" Bill has made no progress since the first reading. The Solicitor-General's Ecclesiastical Courts' Bill, after much discussion, was read a second time last Thursday evening, and will be considered in Committee next Thursday. The Solicitor-General has agreed to incorporate in his Bill some of Sir Fitzroy Kelly's clauses, and probably therefore the Government will be supported by the Conservative party, and thus the Bill may pass. It will however require several amendments to be made in Committee.
The next important alteration of the law which will materially affect both client and attorney, is that proposed to be effected by the Mercantile Law Amendment Bill, especially as it relates to the partial repeal of the statute of frauds in regard to contracts in writing. Important evidence was given before the Select Committee, but three out of five of the members of that committee voted in favour of the repeal clause; and we understand the question will be strenuously mooted in the House of Commons. It is not improbable that this difference of opinion will occasion a postponement of the bill.
The County Courts' Further Amendment Bill may be ranked next in order; and as it has been steered successfully through the Upper House, and to a certain extent is founded on the report of the Commissioners, it may also pass the other House. But the interesting clauses which relate to the salaries of the Judges are yet to be discussed before that tribunal to which they properly belong. We observe that notice of motion has been recently given to increase the salaries of all the County Court Judges to one uniform amount of £1,500.
Another proposition of great importance is the Lords Appellate Jurisdiction Bill which has been sent down to the House of Commons,-where a discussion is expected to arise on the amount of the salaries of new Law Lords, who will officiate as Deputy Speakers of the House, being Peers for life, and sitting on appeals with the Lord Chancellor.
Remaining Law Bills in Parliament.-New Statutes.-Intestates' Estate Bill.-Review.
We think that the arrangement proposed is, on the whole, the best that can be practically carried into effect.
The remaining bills may be briefly enumerated as follows:
In the House of Lords are the bills relating to the Reversionary Interests of Married Women in Personal Property; Charitable Uses; Drainage; Counties and Boroughs Police; with some miscellaneous measures, not bearing on matters of professional
In the House of Commons the bills, lingering in their progress, relate to Procedure and Evidence; Judgments and Execution; Public Prosecutors ; Advowsons; Tithe Commutation; the Poor Laws; Church Rates; and other bills relating to Ireland, and to subjects which do not materially concern the practical lawyer.
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
DRAFTS ON BANKERS.
19 & 20 Vict. c. 25.
The following are the Title, Preamble, and Sections of this Act:
An Act to amend the Law relating to Drafts on Bankers. [June 23, 1856.] Whereas doubts have arisen as to the obligations of bankers with respect to cross-written 'drafts: And whereas it would conduce to the ease of commerce, the security of property, and the prevention of crime, if drawers or holders of drafts on bankers payable to bearer or to order on demand were enabled effectually to direct the payment of the same to be made only to or through some banker: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. In every case where a draft on any banker made payable to bearer or to order on demand bears across its face an addition, in written or stamped letters, of the name of any banker, or of the words "and company," in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker.
2. In the construction of this Act the word "banker" shall include any person or persons, or corporation, or joint-stock or other company, acting as a banker or bankers.
ADMINISTRATION OF INTESTATES' ESTATES BILL.
THIS bill, which is prepared and brought in by Mr. Locke King and Mr. Headlam, purposes to enact that the special customs concerning the distribution of the personal estate of intestates observed in the city of London, the province of York, and certain other places, shall, with respect to all persons dying on or after 1st January, 1857, wholly cease and determine;
and the distribution of the personal estate of all persons so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estate of intestates generally prevalent in the province of Canterbury had prevailed throughout England and Wales, any law or statute to the contrary notwithstanding.
NOTICES OF NEW BOOKS.
A Book of Costs in the Courts of Queen's Bench, Common Pleas, and Exchequer, the Crown and Queen's Remembrancer's Offices, in Bankruptcy, and the Court for Relief of Insolvent Debtors, Conveyancing, and Miscellaneous Matters; in Conformity with the General Scale of Charges allowed on Taxation, and with the Common Law Procedure Acts, 1852 and 1854, and Bills of Exchange Act, 1855. By RICHARD G. DAX, Esq., of the Middle Temple, Barrister-at-Law. London: William Maxwell, 32, Bell-yard, Lincoln's Inn, Law Bookseller and Publisher: Bell & Bradfute, 1856. Edinburgh; Hodges & Smith, Dublin. pp. 589.
MR. DAX, the author of this useful work, has possessed considerable advantages in preparing his extensive collection of Bills of Costs, particularly in the Common Law Courts, from the access he had to the valuable precedents of the late Master Dax, and the advice and assistance received from him. The preface well explains these advantages.
"In offering this new Book of Costs to the Profession, I beg to state, as briefly as possible, the grounds on which I have relied as qualifications for the task; and I am at the same time anxious to pay a tribute of respect to my late father, my predecessor in the same field of labour, whose knowledge and ability in all matters of taxation, throughout the period of twenty-three years, during which he held the appointment of Senior Master of the Court of Exchequer, are, I believe, universally admitted.
"In the last year of his life, it had been his intention to publish a work of this nature, which should embrace every variety of charge arising as well in the old practice, as under the Common Law Procedure Act of 1852, and for this purpose he had deputed me to extract from those daily bills that came before him in his official capacity, such portions as bore relation to the altered scale, after they had passed through the ordeal of taxation; and since his death I have collated from various taxed bills of costs, under the subsequent Act of 1854, those forms which are given in the present book.
"Having thus obtained such a reliable and valuable mass of precedent, and, under my father's able instruction, a practical and theoretical knowledge of those principles of taxation on which his decisions were based, in every branch of legal costs; I have undertaken this work, in the hope of rendering an assistance to the Profession, of which they must continually be in need, and which I feel justified in stating, from the care I have bestowed on it, may be relied upon as a safe guide on every matter comprised in its contents. My aim has been, that it shall be found useful in drawing a correct bill of costs for the purposes of taxation, preventing on the one hand the risk of unauthorised charges being inserted, and on the other, guarding against the loss
Review: Dax on Bills of Costs.-Apathy of the Profession.
that would arise from an omission of those to which the practitioner is entitled."
The First Part of the Work comprises the directions of the Judges to the taxing officers, the authorised allowances for the usual costs of plaintiffs, and defendants, and their witnesses, with the official fees payable in the different departments of the Courts. The Second Part comprises the costs on the reduced or lower scale, in actions under £20. The Third Part relates to the costs, both of Plaintiffs and defendants, on the higher scale of allowance. The Fourth Part applies to ordinary proceedings. The Fifth Part relates to costs on postea, new trials, &c. The Sixth contains miscellaneous bills. The Seventh is devoted to costs in the crown office. The Eighth to the Insolvent Debtors' Court and Bankruptcy. To which is added bills in Conveyancy business.
The appendix contains various forms of affidavits in support of bills and costs, and gives the following very useful directions in framing affidavits of increase.
"In making affidavits of increase there are several facts that are required to be clearly, distinctly, and positively sworn to, without which the charges will not be allowed. The affidavits must be made by the attorney or some clerk having the management or conduct of the cause, or by the client, for any payments that may have been made by him to counsel, or to witnesses or otherwise, during the progress of the action. The place of abode and quality or occupation of the witnesses, the places and distances at which they are subpoenaed, and the distances thy have to travel for the purpose of attending the trial, must be distinctly stated, and also that they are material and necessary witnesses for the party on the trial of the cause; and it must be stated positively that they did. attend at the trial, and also that they attended as witnesses in no other cause. The number of days they are necessarily
absent from home on the trial must also be accurately sworn to. If an attorney should attend as a witness it must be stated whether or not he attended at the place of trial as attorney or witness in any other cause, or whether he had or had not, any other business there. It is also proper to state on what day the cause was tried. It is customary and proper to introduce a scale into the affidavit showing the names, places of abode, and quality or occupation in life of the witnesses, the distance they reside from the attorney in the cause, the distance they have to travel to the assizes, and the number of days they are necessarily absent, and the sums of money paid to each for attendance."
A tabular form is then given of the names of the witnesses, their occupation, residence, time absent, &c. It is then observed that
"In paying the witnesses it should clearly appear how much is paid to each witness; and if they have been paid partly in money, and partly for their tavern bill, it should clearly appear how much of the tavern expenses is applicable to each person. the better way is always to pay them in money according to the scale of allowance to witnesses;
* Or, otherwise, as the case may be.
this saves much time and trouble on the taxation of costs, and prevents a loss to attornies, which frequently occurs, from not being able to separate the charge for tavern bill so as to show how much may be applicable to each witness. It is not sufficient to divide the same rateably amongst them, as it might lead to the injustice of paying too little to one witness, and making up an average by payment of too much to another and which can never be allowed.
"Whenever any circumstances occur during the progress of the action by which expense is increased or incurred, it must be made distinctly to appear, by the affidavit, that such expense has not been occasioned by the default of the party claiming the costs, but that the same was necessary, under the circumstances, for the purposes of the suit.
"It is impossible to frame an affidavit to meet every emergency that may arise, but those introduced into the Appendix will show the usual form upon a common occasion, as also in some special instances of cross issues; that is to say, when some issues are found for the plaintiff and other issues for the defendant in the same action.
"It is sometimes necessary, in cases of importance and difficulty, for an attorney in the cause, residing in the country and employing an agent in London, to attend a trial of a cause in London; but to warrant the allowance of such attendance by the Master it must clearly appear, by the affidavit of increase, that such attendance was absolute necessary, and that the trial could not safely be intrusted to an agent. A copy of an affidavit which was used for such purpose will also be found in the Appendix.
"In case maps or plans are required in any case, the necessity thereof should also appear in the affidavit."
APATHY OF THE PROFESSION.
We have lately had occasion in reference to a measure that would probably be highly beneficial, to consider the means of arousing the members of the larger branch of the legal profession to a sense of their interests, and the course to be adopted for improving their status and protecting them from the invasion of their rights and privileges. Perhaps the indifference which prevails regarding their own immediate concerns, may be partly accounted for by the absorbing nature of their avocations in behalf of their respective clients. It is probable, also, that a very large proportion of the practitioners, rely that the various law societies, both metropolitan and pro
vincial, sufficiently bestow their attention on all useful occasions; and therefore, the non-members indolently consider that their aid and assistance are not required.
It may also be, that a considerable number are content with things as they are "unaltered and unimproved; " whilst others, notwithstanding existing defects, are in a prosperous state, and have no expectation that the changes which the law reformers propose will confer any benefit on them. Then, lastly, is realised the old saying that "what is everybody's is nobody's business."
Some of the fraternity connected with this work, are old enough to recollect that, in the early part of