Power over Judgment Debtor's Assets. 163 by Mr. Philips, the Special Pleader, who notice of the order, as therein directed, will has appended to several of the Sections a deprive the debtor of any power of dealing with concise and useful commentary. We select, the debt attached, so as to defeat the right of for the present, his notes on that part of the judgment creditor, and will render a paythe Act which authorises the examination ment to the debtor by the garnishee invalid. of a judgment debtor as to the debts due to fraudulent preference, collusion, and procureIn bankruptcy, setting apart questions of him (s. 60), and enables a judge to order ment, the attachment, if it be made prior to an attachment on such debts (s. 61). After any act of bankruptcy, will, in case of a fiat stating these two sections, Mr. Philips re-issuing against the judgment debtor after such marks that attachment, but before payment is enforced from the garnishee, bind the debt notwith"Foreign attachment has long been one of standing the fiat; but it will be otherwise the most important customs of the city of where there is an act of bankruptcy prior to London. The principle is derived from the the attachment, although the judgment crecivil law, and the object of the proceeding has ditor has no notice of it, inasmuch as the title been briefly described to be to enable the of the assignees by relation will then prevail, creditor to attach the money, debts, or goods there being no provision that such attachment of his debtor in the hands of a third person, shall in that case be valid. Though the Bankand so deprive the owner of all control over rupt Law Consolidation Act, 1849, contains the subject of the attachment until he appears many provisions to protect bona fide transto answer the claims of his creditor, or until actions from the operation of the doctrine of the debt is satisfied.' Locke on Foreign At- title by relation, there are none that appear tachments, p. 2. The present enactment, how-capable of being applied to an attachment under ever, though no doubt suggested by the cus- this section before payment is enforced against tom of foreign attachment, makes no reference the garnishee; s. 133 of that Act renders valid, to it, or to the rules of any court in which the notwithstanding any prior act of bankruptcy, principle of it has been adopted, but simply all executions and attachments against the presents a new mode, complete in itself, of goods and chattels of any bankrupt bond fide enforcing satisfaction of judgments, in addi- executed and levied by seizure and sale before tion to the modes of execution at present pos- the date of the fiat or the filing of such petisessed by the Superior Courts of Common Law. This proceeding by attachment is given only to creditors who have obtained judgment, and only against debts due to the debtors on such judgments; the debt in respect of which the order to attach is made being bound in the hands of the garnishee by the service of such order, or notice of it as directed, and payment by the garnishee to the judgment creditor being made enforceable by the proceedings detailed in the sections that follow." On the 62nd section Mr. Philips observes that the words "Debts due or accruing to the judgment debtor," comprise ascertained debts presently payable or becoming payable, and he refers to Shelton v. Mott, 6 Exch. 231, where the words "due or growing due" were held to include a debt though not then payable. In that part of the 62nd section which enacts that the Judge's order" shall bind such debts in his hands," Mr. Philips says, "The word "bind,' as used in the statute 29 Car. 2, c. 3, s. 16, with reference to the writ of fi. fa., and its delivery to the sheriff, relates to the debtor himself, so as to vacate any intermediate assignment made by him otherwise than in market overt; but the delivery of the writ to the sheriff does not change the property in the goods. See per Patteson, J., in Giles v. Grover, 1 Cl. & Fin. 74, et seq.; 9 Bing. 136, 137. The attachment under the above section, when effected by service or Published by Wm. G. Benning and Co. tion;' so that, even assuming, for the purpose of these observations, that a debt due to the bankrupt would be included in the expression goods and chattels,' as here used, the attachment does not, in the case referred to, come within the protection of the clause, so as to bind the debt. It is scarcely necessary to observe, that the clause would apply precisely to the case of an execution against the garnishee becoming bankrupt, made and levied by seizure and sale before the fiat. "The case of insolvency stands on a different footing. The insolvency laws do not, as is well known, adopt the principle of prior to the vesting order under 1 & 2Vict. title by relation, though certain transactions c. 110, or the petition under the protection acts, are invalidated by express provisions directed against them; for example, the provisions in those statutes as to voluntary preference, and as to executions on warrants of attorney, as to bills of sale, &c. There is nothing, however, in the Insolvency Acts above referred to, to invalidate the effect of an attachment obtained by a judgment creditor under this present statute, if made at any time prior to the vesting order under 1 & 2 Vict. c. 110, or the petition under the Protection Acts. "In Woodland v. Fuller, 11 Ad. & Ell. 859, on a judgment against T., there had been a fi. fa. issued and lodged with the deputy (under stat. 3 & 4 Will. 4, c. 42, s. 20), of the sheriff, and a warrant issued by the deputy, and afterwards, on the same day, a vesting order under 1 & 2 Vict. c. 110, made, transferring the estate of T., under which the assignee took possession of T.'s property, which was after 164 Power over Judgment Debtor's Assets.-Law of Attorneys. wards seized by the sheriff's officer, and it was "The question here is, whether the items held that the seizure was proper. It was con- which are here stated, attending to the tended, on behalf of the assignee, that the vest-registration of Lincolnshire in the year ing order was equivalent to a sale in market 1837,-is a proceeding within a suit, or overt, but the Court decided otherwise; and with a view to the suit, in a Court of Law or Patteson, J., after stating that the delivery to the deputy was a delivery to the sheriff, said, Equity? That is the question I have to conthat, however, does not change the property, sider in this case. nor, indeed, does the seizure do so (Giles v. Grover); but the delivery does bind it, so that, into whosesoever hands it comes afterwards, it is liable to be seized under the writ; the debtor may convey it away, but not so as to defeat the right of the execution creditor.' And as to the argument as to sale in market overt, the same learned Judge observed that the statute, i. e. the Insolvent Debtors' Act, merely said that the order should have the effect of vesting, without carrying the transaction beyond the conveyance under the former Insolvent Debtors' Act, that it got rid of no charge." LAW OF ATTORNEYS. TAXATION OF BILL OF COSTS FOR BUSI NESS IN THE REGISTRATION COURTS. "I am of opinion, though I do not know whether it is necessary to come to a conclusion, that the Registration Court is not a Court of Law or Equity within the Statute. I concur in an observation of Mr. Palmer, that the mere fact of calling it a court, does not make it a Court of Law or Equity. It is a court of registration; its object is not to determine rights between contending parties, but the rights of persons to exercise high constitutional functions, and to ascertain who are entitled to exercise these rights; and although many nice questions may arise, and although the rights as between parties may have, incidentally, to be determined by the revising barrister, still there is no suit or action between parties, though A solicitor was employed in respect of one person claims a vote and another objects some election matters, and delivered his to it. The whole object is, to perfect and bill of costs, whereupon the client obtained make accurate the list of persons qualified an order of course for its taxation, alleging to exercise the functions of voters. It is that it did not contain any item for business done in either of the courts of law or equity. The bill contained an item for attending and conducting the registration for the Lincoln district of the part of Lindsey. On motion to discharge the order, the Master of the Rolls said, "I am of opinion that the court has jurisdiction to order the taxation of this bill. The Statute says, 'that in case no part of such business shall have been transacted in any court of law or equity,' the Lord Chancellor or the Master of the Rolls may order the taxation of a bills. a easy to illustrate it thus:-In the court of common council or of aldermen a question might arise, in which it might be necessary to employ a solicitor, but that would not make them Courts of Law or Equity within the Statute. "I am strengthened in this by the fact, that there is no observation which has been made as regards the Registration Courts, which would not equally apply to the Court of Bankruptcy, and yet the Act specified proceedings in bankruptcy or lunacy, which would be unnecessary if they were Courts of Law or Equity. Even if Registration "The only question is, whether, on the Courts were considered Courts of Law, still construction put on those words, the busi- it would be difficult to hold, that the obness mentioned in this case comes within jecting to a vote, or the defending the right the definition business transacted in a to be on the list of voters, on behalf of a court of law.' candidate, would be a proceeding either in "The first thing which strikes me, as it a suit or with a view to a suit on his part. did Lord Lyndhurst in re Gaitskell, Phill. I cannot distinguish this from the employ576, was the generality of these words, ment of a solicitor to go into Court and 'business transacted in any court of law or take a note of the proceedings in which the equity. Lord Lyndhurst says, 'it appears employer might be materially interested, that these words are borrowed from the and might consider of importance to him, Statute of Geo. 2, where they have been but to which he was no party. That would repeatedly the subject of judicial decision; not be a proceeding, either in a suit or with and the doctrine of all the cases is, that to a view to a suit. In that view, it is imposcome within the meaning of those words, sible to say, that this is a proceeding in the business must be some proceeding either a court of law or equity within the meanin a suit or with a view to a suit.' This is ing of the Statute. It is said that the Bill the key to the construction. ought to be taxed at law, but this is merely Law of Costs.-Barristers Called.-Selections from Correspondence. saying that it is taxable by a different officer, on the same principles; and it is admitted that there is no taxing officer in the Registration Court. "I was struck with the observation, that the Bill delivered was not in a form fit for taxation; and although I must refuse this application with costs, it must be without prejudice to the right of Mr. Andrews to present a petition for leave to amend the Bill delivered by him." In re Andrews, 17 Beav. 510. LAW OF COSTS. OF TRUSTEE APPOINTED PENDENTE LITE. PENDING a suit to remove the surviving trustee of a will, on the ground of misconduct, and for the appointment of a new trustee in his stead, such trustee appointed Mr. Rigby a trustee under a power vested in him, and the new trustee was afterwards made a party to the suit. Mr. Rigby, who did not object, was removed at the hearing together with the defendant. The Master of the Rolls said "I can neither give nor make Rigby pay costs. A gentleman before being appointed trustee is informed that the persons beneficially entitled to the trust property have had a correspondence with the existing trustee, and that they assert that the trust funds have been misapplied. He also knows that the surviving trustee was about to leave the country for a considerable time, and that the cestuis que trust charge him with a misapplication of the estate, and knowing this, he consents to become a trustee without any communication with the cestuis que trust. "I think that a person thrusting himself, as it were, into a trust, was bound to inquire into the existing circumstances; and though I am always disposed to give trustees their costs, considering the arduous and important duties they have to perform, I think that a party acting in this manner is not entitled to any costs." Peatfield v. Benn, 17 Beav. 522. BARRISTERS CALLED. Michaelmas Term, 1854. Alexander Edward Miller, Esq., B.A. Herbert Coleridge, Esq. Charles Piffard, Esq., B.A. James Cottingham, Esq. Charles Wethered Willett, Esq., M.A. INNER TEMPLE. 165 Mountstuart Elphinstone Grant Duff, Esq., LAW PARTNERSHIP.-REMEDY FOR WANT A. and B. were partners in the law under Has A., notwithstanding the lapse of time, a remedy against B.? and should it be by action of account, so as to apply for a compulsory reference under the recent regulations, or by a bill or claim in Equity, or would an 166 Professional Lists.-Post-Office Regulations.-Notes of the Week. application to the Court of Queen's Bench be desirable to compel B., as an attorney, to perform his engagement? December 21, 1854. LAND AGENTS. A good and honourable land agent is a most important person in the management of landed property. I wish to learn from your more experienced correspondents what is the practice of delivering up documents, vouchers, and papers when the land agent ceases to be such or dies. I have heard of recent instances—one where the whole of the agency papers were burnt or destroyed by the agent, and in another case where, although a small part was delivered up, yet vouchers of settled accounts and the whole of the other papers were detained. This is a most important subject, the more it is considered, for landed proprietors, many do not keep copies. A BARRISTER. Wright, Newenham Charles, and John Keep Weedon, 4, Furnival's Inn, Holborn, Attorneys, Solicitors, and Conveyancers. Dec. 22. POST-OFFICE REGULATIONS. MONEY ORDERS. 1. On and after the 1st of January next, the rule requiring the payment of an additional commission for a duplicate money order, or for a transfer from one office to another, &c., will be extended to cases of alteration in the name of the remitter or payee. 2. The payment of the additional commisand 6d. on all sums between 21. and 51. must sion, viz. 3d. on all sums not exceeding 21., be invariably made by postage stamps transmitted with the application; and unless the amount be so transmitted, the application will not be complied with. 3. All applications upon this subject must be addressed to the Controller of the London, Dublin, or Edinburgh Money Order Office, according as the order was issued in England (or Wales), Ireland, or Scotland. 4. The errors which often make alterations in money orders necessary may be avoided by the use of the printed forms of application the rate of five for one halfpenny, and by the which are sold at all Money Order Offices at applicant always examining his order before quitting the issuing office. (Signed) ROWLAND HILL, Sec. December, 1854. DURING the progress of the cause of Parnell v. Goater, on the 21st December, at Guildhall, Lord Campbell frequently com plained of the noise, and directed that a door Appointed under the 16 & 17 Vict. c. 78, with leading into the body of the Court might be dates when gazetted. kept closed. The order not having been obeyed, his lordship directed that the usher who had charge of the door should be brought before him. He was accordingly sent for, but it appeared he was not to be found at his post. Lord Campbell.-"The manner in which these Courts are kept is disgraceful. Amongst other reforms there must be a reform in the Courts, or I will adjourn the sittings to the other end of the town. It is the duty of the city to provide proper attendants to preserve order and keep persons in their proper places. For myself, I will say, I do not care if the Courts are removed from the city altogether, and I shall certainly make that proposal.From The Daily News, 22nd December, 1854 NEW MEMBERS OF PARLIAMENT. William Stuart, jun., Esq., for Bedford, in the room of Henry Stuart, Esq., deceased. Sir Joseph Paxton, Knight, for Coventry, in the room of Charles Geach, Esq., deceased. Notes of the Week.-Superior Courts: Rolls.-V. C. Kindersley. Joseph Haythorne Reed, Esq., for Abingdon, in the room of Montagu Bertie, Esq. (commonly called Lord Norreys), now Earl of Abingdon, summoned to the House of Peers. Robert Stayner Holford, Esq., for the Eastern Division of the county of Gloucester, in the room of Sir Michael Hicks Hicks Beach, Bart., decased. Hugh Fortescue, Esq., commonly called Viscount Ebrington, for Marylebone, in the room of Dudley Coutts Stuart, Esq., commonly called Lord Dudley Coutts Stuart, deceased. LAW APPOINTMENTS. 167 Mr. Craufurd, the present Solicitor-General for Scotland, will be appointed to the vacant seat upon the Bench caused by the death of Lord Rutherfurd. There being at present an Earl of Crawford, he will therefore take his seat as Lord Ardmillan. Thomas Makenzie, Esq., the Sheriff of Ross, obtains, with the full satisfaction of the Profession, the gown of Solicitor-General. Mr. Philip Smith Sparling, of Colchester, has been appointed Clerk to the Burial Board of St. Osyth, Essex. RECENT DECISIONS IN THE SUPERIOR COURTS. Master of the Rolls. Earle v. Ferris. Nov. 13, 1854. SUIT BY PROPERTY HUSBAND CLAIMING Held, that the wife is not a necessary party THIS bill was filed by the plaintiff against his wife and her trustee, for a declaration that certain property, which she had purchased out of her savings, and had had conveyed in trust for herself, was held by the trustee in trust for the plaintiff. Palmer and Batten appeared in support of a demurrer by the wife. Sandys for the plaintiff, contrà. The Master of the Rolls said, that in accordance with Davis v. Prout, 7 Beav. 288, the demurrer must be allowed, as a wife could only be made a defendant to a suit by her husband in respect of her separate estate. Millar v. Chapman. Dec. 4, 1854. WILL-CONSTRUCTION.-"OR.". TUTIONAL DEVISE. SUBSTI A testator, by his will, devised certain pro- proceeds equally between his children living at the death of the tenant for life, or such others as would have been entitled at the death of their parents: Held, upon the death of the tenant for life after the testator, that the children then living were entitled only, and to the exclusion of a grandchild whose father pre-deceased the tenant for life, although he survived the testator. THE testator, by his will, dated in July, 1815, devised certain property, to which he was entitled upon the death of a tenant for life, to trustees in trust to convert the same and to di vide the proceeds equally between his children living at the death of the tenant for life, or such others as would have been entitled at the death of their parents. It appeared at the death of the tenant for life, who survived the testator, that there were two children (the present plaintiffs) surviving, and a grandson (the defendant) whose father survived the testator but predeceased the tenant for life. Palmer and Surrage for the plaintiffs; Follett and De Gex for the defendant. The Master of the Rolls said, that the word " Sor was substitutional, and the gift only operated on the testator surviving the tenant for life, and the defendant was not therefore entitled. Vice-Chancellor Kindersley. Jenkins v. Bryant. Nov. 9, 1854. ORDER OF COURSE TO CHANGE SOLICITOR -DISCHARGE-SUPPRESSIO VERI. An order was obtained at the Rolls as of course to change the solicitor on the record: upon its appearing that there was a special agreement, which had not been stated on the order being obtained, it was discharged with costs. THIS was a motion to discharge an order, which had been obtained as of course at the It apRolls, to change solicitors in this case. peared that there was a special agreement which had not been stated on the order being obtained. Glasse and Bennett in support, Toller contrà. The Vice-Chancellor said, that a special order should have been obtained, and discharged the order of course with costs. |