228 Analytical Digest of Cases: Scotch Appeals to House of Lords. though not in all respects perfect, will be the measure of his dominion, and the law of his enjoyment. Hence, he cannot alter the order of succession or impose new fetters on those who succeed him. Where an heir of entail has erroneously made up his title under an instrument which he subsequently finds to be invalid, he is not thereby precluded from instituting proceedings to have it set aside, and to have the proper instrument established. Menzies v. Menzies (the Culdares case), Haile's rep. 969, approved. The 43rd section of 11 & 12 Vict. c. 36, commonly called "Lord Rutherford's Act," is not retrospective. Urquhart v. Urquhart, 1 Macq. 658. INTERPRETATION. mother of a bastard, instead of marrying the A child born a bastard in a foreign country not recognising the doctrine of legitimation per subsequens matrimonium, is an alien, although his putative father was a Scotchman domiciled all his life in Scotland, and although such putative father afterwards married the mother of the bastard for the express purpose of rendering the bastard legitimate. The children of natural born subjects, who, under the 4 Geo. 2, c. 21, are to be considered natural born subjects of this kingdom, must have been legitimate from their birth, and not rendered so by the subsequent marriage of their parents. Of words in England and Scotland.—Semble, Terms of art may have different significations in England and Scotland; but popular language meant to express ordinary agreements ought to have the same interpretation on both sides of the Tweed; and where the English born of a British father; but a bastard, nullius To be within the Act, the child must be Courts have for a long time attached a certain meaning to certain words, the Scotch Courts, filius, can have no father. Shedden v. Patrick, having no decision to the contrary, may safely 1 Macq. 535. follow them. Clark v. Glasgow Assurance Company, 1 Macq. 668. JUDGMENTS. Fraudulently obtained. When affirmed by House of Lords.-Where a judgment has been obtained by fraud, and more especially by the collusion of both parties-such judgment although confirmed by the House of Lords, may, even in an inferior tribunal, be treated as a nullity. But the allegations of fraud and collusion must be specific, pointed, and relevant; otherwise they cannot be admitted to proof. To set aside a judgment had by fraud, the proper course, when such judgment has been confirmed by the House of Lords, is to apply to the House for direction. Hence it is wrong to ask the Court below, upon proof of the fraud or collusion, to set aside a judgment confirmed by the House. Whether the House, in such a case, can direct an issue, quære? Shedden v. Patrick, 1 Macq. 535. Case cited in the judgment: Meadows v. Duchess of Kingston, Ambl. 756. LEGITIMATION. Per subsequens matrimonium. - From what period it operates.—Alien Statutes.-Children without parents.-By the law of Scotland legitimation per subsequens matrimonium operates only from the time of the marriage, not from the time of the birth. Semble, that the ancient fiction, which supposed an interchange of matrimonial consent at the moment of conception, is not sanctioned by the law of Scotland. Semble, that the doctrine of mid-impediments is also without foundation in the law of Scotland. Semble, that by the law of Scotland, if the "OWNER." See Waterworks. POOR RATE. See Waterworks. PUBLIC DECISIONS. Of Superior Courts of Justice.-Semble, that the Imperial Legislature may be taken to have cognisance of the decisions of the Superior Courts of Justice-especially when they relate to questions of a public nature. Edinburgh Water Company v. Hay, 1 Macq. 682. SOLICITOR. Undertaking conflicting duties.-Remarks by the Law Peers on the danger which arises duties which conflict with each other. Shedden from the assumption by professional persons of v. Patrick, 1 Macq. 536. SPECIFIC PERFORMANCE. Method of compelling the specific performance of agreements in Scotland and form of prayer. Clark v. Glasgow Assurance Company, 1 Macq. 668. STATUTE. Retrospective operation.-In general, Courts of Justice will be slow to ascribe a retrospective operation to any Statute. Urquhart v. Urquhart, 1 Macq. 658. WATERWORKS. Assessment to poor-rate.—Import of word "owner" in 8 & 9 Vict. c. 83.-Under the 8 & 9 Vict. c. 83, a waterworks' company are liable to assessment for relief of the poor, as owners and occupants of the land through which their pipes run. The word "owner" occurring in the Act does not necessarily mean owner of the fee. It may mean the owner of a partial interest. Edinburgh Water Company v. Hay, 1 Macq 682. The Legal Observer, AND SOLICITORS' JOURNAL. Still attorneyed at your service."-Shakespeare. SATURDAY, JANUARY 27, 1855. LIMITED LIABILITY PARTNER- opposition to the just claims of those cre ditors, to have "the concern" first applied to pay the debts of the concern, and not as now, in great measure to be set apart to replace itself; so as, perhaps, out of the dividend taken in competition with the trade creditors, to start itself over again in business. WE cannot doubt but that any of our readers who have given even slight attention to this subject, must see that "family creditors" advancing capital to the trade, ought, We have premised this much, by way of in justice to the general trade creditors of a introducing a few comments on the report concern, to be postponed to such trade cre- of the Committee of the Law Amendment ditors. The "family" capital, worked by the Society, on the paper of Mr. Edgar we trader and in his "reputed ownership," is lately published, and, indeed, on Mr. Edthe real thing to which trade credit has been gar's paper itself. The report and paper given; and it is, therefore, the thing which propose to establish the principle of posteminently and preferentially should pay the poning the right of the family creditor (we trade debts. Our law now allows, however, use this term as denoting all who really are that a large slice of it should be withdrawn capital advancers) to those of ordinary from the trade creditors, under the shape of trade creditors, only very partially and pera dividend to itself. Is this right or not? missively; and to do it, as far as they do Now this question will be found to be the it at all, through regulations affecting the same question as that of the propriety of mode of bringing in the capital-of regisallowing limited liability partnerships to be tering the facts of partnership-the name established; at least to include such second question. If the trader's books are rightly and fairly kept, he opens a capital account,' and makes the trade debtor to "capital," and "capital" debtor to his father, uncle, &c.; and when he fails "capital" (or that which remains in the trade after paying the debts) should, in all justice, and, according to the very books themselves, be the re-payer. Now, this is exactly the state of things arrived at under a system of limited liability or commandite partnership. Those who (agitated by a fear of opposition to their own trades, or by some phantom of their own creating) oppose the allowance, by our law, of the system under consideration, profess to do so for the benefit of trade creditors; whereas, in fact, they are arguing in the most direct VOL. XLIX. No. 1,403. of the firm-the business, &c., &c.-with 230 Limited Liability Partnerships. What, then, should be the frame of the proposed law? of interest, at any exorbitant rate, and rank- Ireland, and all the cases in which it has ing in liquidation, with and against the trade been cited will illustrate the mischief of the creditor. In this way, in England, family public requiring in mercantile matters creditors are legion; while there are few things to be done in which it, the public, secret partners. The true interest, on the has no real or deep interest; but the whole other hand, of the trade creditor and of value of which lies really between the partthe public is, that there should be as many ners themselves; or between the partners secret partners as possible-as many per- and those who, with eyes open, deal with sons as possible, that is, who are content them: a criticism this, by the way, applicato advance capital into trades, and to back ble to most of the mercantile enactments these trades and help them, and link their statutory, or by charter of the Board of interests to them, on condition that they Trade. rank for what they advance, against the assets, not pari passu with, but after and behind all the trade creditors. If we could Make the ostensible partner sole owner legislate at all beyond the point of allowing at law; and enact that secret partners shall this, it would be to declare all loans made only have an equitable cestuique trust not for the purpose of some one particular right against the assets, and shall not be adventure in trade (as is the case in every liable to the partnership debts; and that speculation carried on by the ordinary the ostensible partner shall not have any union of creditor and debtor), but being for the permanent continuing service of the trade (that is for its capital), should always rank after and behind the trade creditors, whether the advancer put himself in the situation of a family creditor or not. But the proposal we are considering, on the contrary, takes quite the opposite view; and treats the right of the family creditor as irrefragable; and his subsidence into the position, more honest towards the public, of secret partner; as being a favour to him to be granted only on imposing special terms, and voluminous and intricate returns and registration observances. These special terms too, are such as are of no kind of use right to pledge their personal credit, and shall be criminally responsible if he attempt to do so;-and, as to private associations, the law will, we think, have accomplished all it should do; unless, indeed, the larger amendment of the Law of Debtor and Creditor, which would postpone the rights in liquidation of a family creditor or other capital lender, to those of ordinary trade creditors, should also be made. Charters, and the principles on which incorporation should be granted, ought to be considered and dealt with separately. They and the Joint-Stock Acts form a distinct branch of the inquiry.1 a to the public; and yet they place great surprising want of accordance with the theory All our law (except bankruptcy) exhibits difficulty in the way of that very subsi- and understandings of trade among merdence' which the public has so much to chants. This is manifest on the whole system desire; for the proposed special terms of bookkeeping. If we look at all the acwherever such are established, practically make it very difficult that those who intend to be only secret partners, should be able to be sure that nothing has been or shall be done which can impose on them a general liability; and therefore they prevent the useful working of such a law. "The effect (says a recent pamphlet, speaking on such special terms in American law) of these restrictive rules in leading creditors, after a failure of a commanditory partnership, to hunt over all its acts and returns to find a chance for dragging a limited partner into a general liability; although in giving credit, his liability was no item in consideration; is one proof of the folly of statutory articles of partnership." Our Joint-Stock Company Acts have raised the same kind of question here; and Taylor v. Hughes, before Sir E. Sudgen in counts," Capital," "Profit and Loss," &c., New Orders in Chancery. NEW ORDERS IN CHANCERY. EXAMINATION OF WITNESSES.-EVI DENCE. AFFIDAVITS. 231 spectively shall be at liberty to verify their respective cases, either wholly or partially by affidavit, or wholly or partially by the oral examination of witnesses, before one of the examiners of the Court, or before an examiner to be specially appointed by the Court. THE Right Honourable Robert Monsey Lord Cranworth, Lord High Chancellor of Great Britain, by and with the advice and V. The evidence on both sides in any assistance of the Right Honourable Sir cause to be used at the hearing thereof, John Romilly, Master of the Rolls, the whether taken upon affidavit or orally, Right Honourable the Lord Justice Sir (and including the cross-examination and James Lewis Knight Bruce, the Right re-examination of any witness or witnesses), Honourable the Lord Justice Sir George is to be closed within eight weeks after James Turner, the Honourable the Vice- issue joined therein, except that any witChancellor Sir Richard Torin Kindersley, ness who has made an affidavit intended the Honourable the Vice-Chancellor Sir to be used by any party to such cause at John Stuart, and the Honourable the Vice- the hearing thereof shall be subject to Chancellor Sir William Page Wood, doth cross-examination within one month after hereby, in pursuance and execution of the the expiration of such period of eight powers of an Act of Parliament passed in weeks. the 15 & 16 Vict., intituled "An Act to VI. No affidavit or deposition filed or amend the Practice and Course of Proceed- made before issue joined in any cause shall, ing in the High Court of Chancery," and without special leave of the Court, be reof all other powers enabling him in that behalf, order and direct that all and every the rules, orders, and directions hereinafter set forth shall henceforth be and for all purposes be deemed and taken to be General Rules and Orders of the High Court of Chancery, viz. :— Introductory. I. The course of proceeding prescribed by the 15 & 16 Vict. c. 86, and the General Order of the 7th August, 1852, with respect to the mode of examining witnesses and the practice of the Court in relation thereto, are altered in the manner and to the extent prescribed by these Orders, but not further or otherwise. ceived at the hearing thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court, notice in writing shall have been given by the party intending to use the same, to the opposite party, of his intention in that behalf. VII. In suits in which issue shall have the evidence to be used at the hearing of the been joined when these Orders take effect, cause shall be taken according to the preshall consent to, or the Court shall order, sent practice of the Court, unless the parties that the same shall be taken in the altered mode prescribed by these Orders. Affidavits. II. The Orders numbered respectively, 31, 32, 33, comprised in the General Order VIII. All affidavits, whether to be used of the 7th August, 1852, and all other at the hearing of a cause, or on any other Orders and parts of Orders, so far as such proceeding before the Court, are to state other Orders and parts of Orders are incon- distinctly what facts or circumstances desistent with these Orders, but not further posed to are within deponent's own knowor otherwise, are hereby abrogated and ledge, and his means of knowledge, and discharged. what facts or circumstances deposed to are known to or believed by him by reason of information derived from other sources than his own knowledge, or what such sources are. III. All former Orders and parts of Orders, not specified in Order Two, so far as the same are now in force, and consistent with these Orders, are to remain in full force and effect. Evidence. IV. It shall not be competent for the plaintiff or any defendant to require, by notice or otherwise, that the evidence to be adduced in a cause shall be taken orally, but when issue shall have been joined in any cause the plaintiff and defendants re IX. The costs of affidavits not in conformity with the preceding Order, are to be disallowed on taxation, unless the Court should otherwise direct. X. These Orders shall be deemed to apply as nearly as may be to evidence taken after the hearing of a cause, as well as to evidence taken previously, and with a view to such hearing. 232 New Orders in Chancery.-Inns of Chancery. XI. These Orders shall take effect on of the noble family of Furnival, and was deand after the 21st January, 1855. CRANWORTH, C. JOHN ROMILLY, M.R. J. L. KNIGHT BRUCE, L.J. G. J. TURNER, L.J. mised by them to certain students of the law, RICHARD T. KINDERSLEY, V.C. General to the King, William Ropre, and WILLIAM PAGE WOOD, V.C. INNS OF CHANCERY. TRUSTS FOR THE BENEFIT OF ATTORNEYS. HAVING in our last Number presented to our readers a brief statement of the origin and nature of such of the Inns of Chancery as are still in full force and operation, we proceed now to notice several cther of these minor Inns which have been for some time in abeyance, but which seem capable of being revived for the benefit and improvement of that branch of the Profession to which the members of those Inns be longed. In the first instance, it may be useful to abridge from the authorities on these subjects, the past history of these suspended societies, and hereafter submit for consideration the claims of the Profession to an improved management of all these Inns of Chancery, whereby we believe the ancient trusts on which the property of these societies is held, can be carried into beneficial effect, as well for the good of the attorneys and solicitors in particular, and the credit of the Profession in general, as for the promotion of the administration of justice and the public advantage : THAVIE'S INN. Richard Heydone, Esqs., and their heirs, to use of the Society of Lincoln's Inn. From this time the principal and fellows of Furnival's Inn paid to the Society of Lincoln's Inn the yearly rent of 31. 6s. 8d. The Inn was rebuilt in the reign of James 1st, and the Society continued to occupy it till the year 1817. been partly destroyed by fire, and others hav In that year, some of the old buildings having ing partly fallen down, a new lease of the whole of the ground was granted for 99 years, at a rent of 500l. per annum and 761. land tax redeemed, to Mr. Henry Peto, who erected the present buildings. The members or fellows of Thavie's Inn and Furnival's formerly enjoyed some privileges at Lincoln's Inn. In 7 Eliz., by an order of the Bench at Lincoln's Inn, the admission of utter Barristers was fixed at 40s., while fellows of these two Inns of Chancery who had mooted two Vacations there at the utter Bar were to pay only 13s. 4d., and gentlemen of those two houses might, after their admittance in Lincoln's Inn, stay two years in those houses, paying their pensions during those two years, and should be discharged of casting into commons, and of all Vacations and charges of Christmas during the time of their stay in Lincoln's Inn, for those first two years. Sir William Jones, Chief Justice of Ireland, afterwards a Justice of the Common Pleas and King's Bench in England, was for two years a student in Furnival's Inn previously to his admission to Lincoln's Inn.2 The present ground rent payable to Lincoln's Inn is 500l. a year. On the expiration of the lease the value will be increased to 6,000l. and upwards. LYON'S INN. This Inn was a residence for students in the time of King Edward 3rd, as appears by the last will and testament of John Thavie, who This was an Inn of Chancery, as early as died in that reign. In the reign of Edward the time of Henry 5th. In the time of Queen 6th, George Nicholas, citizen and mercer of Elizabeth, it contained 80 students in Term, London, granted the property to the Benchers and 30 out of Term, and readings and mootof Lincoln's Inn, and their successors, for the ings were observed with great regularity. use of the students of the law; after which Sir Edward Coke was for some time reader time it was demised to the principal and fel- at Lyon's Inn, and his portrait is hung up lows of Thavie's Inn, which society had been, it would seem from Fortescue, one of the lesser houses of Lincoln's Inn, for some centuries previously, at an annual rent of 31. 6s. 8d. In 1769, Thavie's Inn was sold by the Benchers of Lincoln's Inn to Mr. Middleton. It was subsequently destroyed by fire, and a range of private buildings now occupies its site.' FURNIVAL'S INN. in the hall. The learned Selden was chosen as reader of this Inn of Chancery, but he refused to read, and in consequence of his refusal, was in the year 1624, fined 201. by the Benchers of the Inner Temple, and excluded from commons. The Hall of this Inn is now used by the students of the four Inns of Court, for the meetings of forensic societies, which meet weekly during the greater part of the Furnival's Inn was anciently the residence year, for the discussion of legal and historical 1 Stow. 430; Dugdale, 271; Pearce, 209; 3 Foss, 385. Stow, 427; Dugdale, 270; Pearce, 210; 4 Foss, 142, 279. |