38 Superior Courts: Queen's Bench. Regina v. Brydges and others. May 8, 1854. QUO WARRANTO. WHEN IMPROPERLY A rule was discharged, with costs to be paid A RULE nisi for a quo warranto had been granted in this case on the defendants, who were the members of a burial board at Melcombe Regis. Sir F. Thesiger showed cause on an affidavit of the relator that he had signed the affidavit on which the rule had been granted without knowing its contents, and that he did not wish to be a party to the proceedings, and was a pauper. Pashley submitted that a new relator should be substituted. The Court, however, refused to permit such substitution, and discharged the rule with costs to be paid by the attorney who prepared the affidavit. AS Herring v. Tomlin. May 8, 1854. ACTION FOR BREACH OF CONTRACT. SESSMENT OF DAMAGES.EVIDENCE OF WITHDRAWAL OF PLEA OF FRAUD. On the assessment of damages before the Secondary, in an action for damages for breach of an agreement by the defendant, to take the plaintiff into partnership, evidence was adduced of the withdrawal by consent, of a plea of fraud: Held, that it was inadmissible, and a new trial was ordered. Ir appeared in this action to recover damages for the breach of an agreement whereby the defendant had agreed to take the plaintiff in partnership, as a ship and insurance broker, that on the assessment of damages before the Secondary evidence had been admitted of the withdrawal by consent of a plea of fraud. A rule nisi had therefore been obtained for a new trial, on the ground of the improper admission of this evidence, whereby the amount of damages given was greater. Wordsworth showed cause; H. S. Giffard in support. The Court said, the question was what loss the plaintiff had sustained by the breach of contract, and these could not be affected by the plea of fraud, and the admission of the evidence of its having been pleaded would tend to inflame the damages. The rule would therefore be made absolute. was received by the post in the appellant parish on a Sunday morning: Held, that the service was good, and was as of Monday morning. THIS was a motion for a rule on the defend ants to show cause why they refused to hear an appeal against an order for the removal of a pauper lunatic from Greenwich to Kimbolton. It appeared that the order was received in Kimbolton by post on a Sunday morning, and the question was, whether the service was good. By the 29 Chas. 2, c. 7, s. 6, it is Lord's Day shall serve or execute, or cause to enacted, that no person or persons upon the be served or executed, any writ, process, warrant, order, judgment, or decree (except in cases of treason, felony, or breach of the peace); but that the service of every such decree shall be void, to all intents and purwrit, process, warrant, order, judgment, or (See Colvill, app., v. whatsoever." poses a COMPLI A motion was refused for a rule nisi to try by a common jury the return to a writ of mandamus on the registrar of the Pharmaceutical Society to make out a register of the members of the society under the 15 & 16 Vict. c. 56, where the question at issue was a complicated one. THIS was a motion for a rule nisi to try by common jury the return to this writ of mandamus on the defendant to make out a register of the members of the society under the 15 & 16 Vict. c. 56 (reported ante, vol. 47, p. 284). H. Lloyd in support, on the ground that the question at issue was merely whether certain 'See Exparte Wilkinson, 9 Dowl. P. C. 320; Exparte Carnley, 2 Dowl. N. S 945; 12 Law J., N. S, Q. B. 98; Exparte Hawke, 45 Leg. Obs. 283; Anon. 2 Chit. 62; 1 Chit. The order for the removal of a pauper lunatic | 558, n. Superior Courts: Queen's Bench.-Queen's Bench Practice Court. parties were entitled to be on the register without having undergone an examination. The Court said, that the question was a complicated one, and the rule was accordingly refused. Dawson v. Williams, clerk. May 9, 1854. APPLICATION TO SET ASIDE WRIT OF SE- 39 plaintiff was arrested on the allocatur which The Court said, that even if the proceedings were irregular, the application being after the A plaintiff who had recovered judgment tice of parties suing in person applying for lapse of 12 months, was too late. The pracagainst a defendant issued a levari facias writs of habeas corpus in order to conduct their and obtained a writ of sequestration against his benefice, but it was directed not to be exe- and would not be allowed, except under special own litigation had become an extensive evil, cuted unless it should be necessary to secure circumstances. Such parties must get others the plaintiff's priority. On the defendant's to conduct their case, and if not they must insolvency and appointment of a provi- take the consequences. The rule would theresional assignee, it was discovered a prior fore be refused. sequestration had been issued by the plaintiff. A rule to set it aside was enlarged in order that the assignee might, on the return thereto of nulla bona, try the question. THIS was an application to set aside a sequestratien issued by the plaintiff on the defendant's benefice. It appeared that he had issued a levari facias, and that the writ of sequestration which issued thereon had been directed not to be executed, except it should be necessary for the purpose of maintaining his priority of claim in enforcing his judgment. Upon the defendant's afterwards becoming insolvent and a provisional assignee being appointed, it was however discovered that the plaintiff had issued a prior sequestration, which was now sought to be set aside. Byles, S. L., and Lush showed cause against the rule, which was supported by Sir F Thesiger and J. Addison; Badeley for the bishop. The Court said, that the rule must be enlarged in order to enable the provisional assignee to bring an action upon the return of nulla bona, to try the question at issue. Dunn v. Coutts. May 9, 1854. SETTING ASIDE PROCEEDINGS FOR IRRE GULARITY.-LACHES.-HABEAS CORPUS. Herman v. Shelby. May 9, 1854. cOUNTY COURT. — PROHIBITION. -EXECU TION ISSUED AFTER PROTECTION order. A plaintiff had obtained judgment in the S. County Court against the defendant, who afterwards took the benefit of the Insolvent Debtors' Act, but the plaintiff notwithstanding issued execution and transferred the same to the D. County Court: A rule was refused for a prohibition against the Judge of the D. County Court against further proceeding in the matter; and held that the proper remedy was by action or application to the S. County Court. THIS was a motion for a rule nisi for a proCounty Court against further proceeding in hibition against the Judge of the Dartford this plaint. It appeared that the plaintiff had obtained judgment in 1851 in the Southwark afterwards obtained a final order for protection County Court against the defendant, who soon from the Insolvent Debtors' Court, but that the plaintiff had notwithstanding issued execution and transferred the same to the Dartford County Court, under which the sheriff had levied on the defendant's goods. Duncan in support. The Court said, that even if the execution Where a lapse of upwards of 12 months had were wrongful, a prohibition was not the taken place before an application to set proper remedy, which must be by action or by aside proceedings for an irregularity: Held, an application to the Court from which it had too late, notwithstanding the applicant had issued. The motion would therefore be rebeen in prison for 10 months under the fused. order of the Insolvent Debtors' Court, and had been refused a habeas corpus to appear in person. Held, also, that a habeas corpus for a suitor to appear in person to conduct proceedings will only be granted under special circum stances. THIS was a motion for a rule nisi on the defendant to set aside the judgment and all subsequent proceedings on the ground of irregularity. It appeared that upon judgment in the action having been given for the defendant, execution was issued for the costs, and the Queen's Bench Practice Court. (Coram Coleridge, J.) Regina v. Robinson. May 8, 1854. MITTED FOR EMBEZZLEMENT. The Court refused a rule to admit a defendant to bail who was a bankrupt, and had been committed under the 12 & 13 Vict. c. 106. s. 251, for trial for embezzlement, with intent to defraud his creditors. THIS was a rule nisi to admit the defendant 40 Superior Courts: Queen's Bench Practice Court.-Exchequer. to bail, who had been committed for trial under the 12 & 13 Vict, c. 106, s. 251,' for embezzlement, with intent to defraud his creditors. It appeared that on being adjudged a bankrupt by the Commissioner of the Leed's District, he had been opposed, on the ground that he had fraudulently concealed his assets, and had been committed for trial on the same being discovered, to the amount of about 300/. in value. Huddleston showed cause against the rule, which was supported by Milward. The Court said, that as the charge was one of the gravest pecuniary offences, and the defendant had almost confessed the offence, and the punishment was a most severe one, the rule must be discharged. Court of Exchequer. Watts v. Rees. May 8, 1854. STATUTE OF SET-OFF.-ACTION BY PLAIN- Quære, whether to an action by the admini- THIS was an action by the administrator of an intestate to recover money payable by the defendant to the plaintiff for money of the intestate had and received by him to the plaintiff's use as such administrator, and for interest, and for money found to be due to the plaintiff as administrator on an account stated between the plaintiff and the defendant. The case now came on on a demurrer to the defendant's plea of set-off for money lent by him to the intestate in his lifetime, and for work done for the intestate and on an account stated between him and the intestate. Henniker for the plaintiff, in support, referred to the 2 Geo. 2, c. 22, s. 13.2 Which enacts, that "if any such bankrupt shall remove, conceal, or embezzle any part of such estate, to the value of 101. or upwards, or any books of account, papers, or writings relating thereto, with intent to defraud his creditors:-every such bankrupt shall be deemed guilty of felony, and be liable to transportation for life," &c. 2 Which enacts, that "where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other, Bovill, for the defendant, cited Mardall v. Thelluson, 21 Law J., N. S., Q. B. 410. The Court said, that the case cited was in direct opposition to the Statute of Set-off, and it did not appear that the prior case of Schofield v. Corbett, 6 N. & M. 527; 11 Q. B. 779, had been cited on the argument of that case. Under these circumstances, there would be judgment for the plaintiff, leaving the defendant to bring a writ of error. Kimpton v. London and North Western Railway ARREST ON COUNTY COURT JUDGMENT SUMMONS OF PLAINTIFF RETURNING FROM GIVING EVIDENCE AT NISI PRIUS. Quære, whether the order of commitment of a party for non-attendance on a judgment summons, under the 9 & 10 Vict. c. 95, s. 198, is of a civil or criminal nature. But under the circumstances a rule was made absolute for the discharge of a person taken in custody thereunder on his return from the Nisi Prius Court, where he appeared as a necessary witness for himself as plaintiff in an action, and held, that the application was properly made in this Court where the cause was, and not to the Nisi Prius Judge. THIS was a rule nisi granted for the discharge of the plaintiff from arrest, upon the ground of privilege. It appeared that the plaintiff was a necessary witness on his own behalf in this action, at the last Liverpool Assizes, and that he had accordingly attended, notwithstanding he was summoned before the County Court on a judgment summons. warrant of commitment was thereupon issued from the County Court, and the plaintiff was arrested after he had left the Nisi Prius Court, while about to enter his house. A Milward showed cause against the rule, on the ground that the application should have been made to the Nisi Prius Judge of Assize, and that the warrant was of a criminal nature, referring to the 9 & 10 Vict. c. 95, s. 98. Watson in support. The Court said, that the applicatlon was properly made here in which the cause was, and that although it was doubtful whether the process in question was not one under which the plaintiff might have been arrested at any place, the rule would, under all the circumstances, be absolute for his discharge, but without costs. and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of his pleading the general issue, where any such debt of the plaintiff, his testator or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sums or debt so intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence upon such general issue." The Legal Observer, AND SOLICITORS' JOURNAL. SATURDAY, MAY 20, 1854. REPORT OF THE BANKUPTCY PROPOSED AMENDMENTS. and what alteration of the present enactment would be desirable; and "7thly. Whether in any and what other particulars the Bankrupt Law, as it now exists under the Act of 1849, requires amendment." THE Commissioners' Report, dated the 10th April, 1854, has just been printed, The Report is too long for immediate with the voluminous Minutes of Evidence, insertion in our columns, and we shall Answers to the Commissioners' Circular of therefore, in the first instance, select those Questions, and various Accounts, Tables, portions of it which are the most likely to and Miscellaneous Papers. The Report is interest our readers. Looking to the disigned by the Right Honourable Spencer minution of the Court fees and funds, we H. Walpole, Sir George Rose, Mr. Swan- may here observe, that from 1843 to 1849 ston, Q C., Mr. M. D. Hill, Q. C., Mr. there was a surplus of 11,2857. 10s. 2d., Bacon, Q. C., Mr. Commissioner Holroyd, but during the last 4 years there has been Mr. Edward Cooke, Barrister-at-Law, and an annual deficiency, amounting in that Mr. G. Carr Glyn, the Banker. The Re- period to 51,7061. 28. 5d. The causes of port is arranged under seven different the diminution of business are thus set heads, viz. :forth in the Report : "1st, The cause of the diminution of the fees and funds now by law applicable to the payment of the expenses of the Court of Bankruptcy. "2ndly. Since it appears that these funds are insufficient to discharge the expenses, whether such deficiency is likely to be per manent. "3rdly. Having regard to the quantity of business transacted by the Courts of Bankruptcy, whether any and what reduction of the establishments of those Courts, either in London or the country, can safely and properly be made, or whether any and what other measures can be adopted for meeting their expenses. "4thly. Whether any and what more effectual means can be adopted for obtaining a more efficient check on the accounts of the official assignees, and for preventing the misapplication by them of the funds coming to their hands. "5thly. Whether the alteration of the Bankrupt Law made by the Act of 1849, establishing class certificates, has or has not been productive of benefit. "6thly. Whether, with the view of obtaining uniformity of practice as to the granting of such certificates, or for any other reason, any VOL. XLVIII. No. 1,367. "First, the general prosperity of trade and commerce which has recently prevailed. "Secondly, a better and more prudent system of trading among the smaller traders, which some witnesses attribute partly to the stricter provisions of the Bankrupt Law Consolidation Act, and partly to the operation of the County Courts in shortening the terms of credit, and facilitating the recovery of debts. "Thirdly, the effect of the proviso in the 93rd section of the Consolidation Act, which precludes a trader from obtaining adjudication of bankruptcy against himself, unless he can show that his available estate is sufficient to pay his creditors at least 5s. in the pound clear of all charges. "Fourthly, the great expensiveness of the system in the fees and per centages charged against the estate, which induces all parties to prefer a settlement out of Court by composition or other arrangement, especially as greater validity has been given to such settlements by the recent Statute. "Fifthly, the severity of the penal clauses which drives many debtors to make such settlements with the assistance of friends, and disinclines many creditors from proceeding in bankruptcy. D 42€ Report of the Bankruptcy Commissioners. the official assignee's books, and with the bankrupt's balance-sheet, and that the bankrupt and any person having taken a copy of the account be at liberty at all seasonable times to do the like. “And sixthly, an unwillingness on the part signee in all cases to examine the account with of creditors to encounter the publicity and formality of proceeding, which operate, to a certain extent, as a partial exposure of their affairs, and also as an impediment to the adjustment of the claims of themselves and others, in the way which they conceive to be most conducive to their own interests." The Commissioners point out the effect of the proviso in the 93rd section of the Bankrupt Law Consolidation Act, 1849, by which a trader cannot obtain an adjudication against himself unless he can pay 58. in the pound. The Commissioners recommend that this restriction should be altered, and relief in bankruptcy granted if the trader can show available assets to the amount of 1507., so that the expenses of the Court may be paid. It is also recommended that the fees, stamps, and per centages should be revised. The Commissioners also recommend the reduction of the establishment and reliev ing the creditors of the charge for compensations, and by some alterations of the Law and Practice, to which we shall presently advert, by which means the income of the Court may cover its expenditure, and the fees now pressing on the suitor be greatly reduced. The reductions in the establishment are thus stated: : £. 3,100 13,400 600 "4. That the creditors' assignee do certify his examination and approval of the account, with the observations in writing of the bankor his objections to it, and that his certificate, rupt, or of any person having taken a copy of the account, be exhibited to the Court at the audit. "5. That where the account is delivered under rule 2, the creditors' assignee do make his certificate upon it within a month, and that if objections are made, an audit be held, in the him to award costs personally, to or against discretion of the Commissioner, with power to any party. "In the second place, we are of opinion that the provisions of the Irish Bankruptcy Act, with reference to the security required to be given by and for the official assignee, are preferable to those which are contained in the rules and orders made under the English Act, particularly in permitting the security of any of Parliament to be accepted. The permanent guarantee society established by charter or Act solvency of such a society is much more certain than the continuing solvency of individual obligors. The Statute should also authorise the bond, where the security is given in that form, to be taken to the chief registrar and his successors in office, instead of to him and his personal representatives. "In the third place, to ensure the quarterly audit, and to give greater force to these regulations, we think that these provisions should be introduced in the Act of Parliament, together with the order above adverted to." Reserving for a separate article the subject of the "Classification of Certificates," and the severity of the penal provisions of 1,000 the Statute, the refusal of protection, the suspension of the certificate, and the power of judgment creditors, we proceed to the other amendments recommended in the Report. They are as follow :— £18,100 With regard to the Official Assignees, the following Rules are, in the first place, recommended to prevent the recurrence of the large defalcations that have taken place: "1. That the course of proceeding now in use on the occasion of a final dividend, be followed on all occasions of a dividend as well as an audit, save that the time for the official assignee sending the account be four instead of 14 days before the day advertised or appointed, and that a copy of the account be furnished to the bankrupt also. "2. That if a dividend be not made within any year after the date of his bankruptcy, an account be furnished in like manner by the official assignee within 10 days after the expiration of every such year until the estate shall be finally wound up and closed. "3. That it be the duty of the creditors' as Registration of Bills of Sale.-It is of great importance to provide a check upon bills of sale and similar instruments, which are very frequently set up to defeat the claims of creditors under a bankruptcy. A check of this kind may be properly obtained by providing for the registration of such instruments, within a certain period after their execution, and at least two months before the bankruptcy, and by giving to registered instruments complete protection against acts of bankruptcy subsequent to their registration, notwithstanding that the goods or chattels comprised in them may have been, with the consent of the true owner, in the possession, order, or disposition of the bankrupt as reputed owner at the time of his bankruptcy. |