Superior Courts: Vice-Chancellor.-Queen's Bench.-Q. B. Practice Court. on to produce the same." And to the interrogatory asking him whether there were not in his possession any books or papers containing any entry relating to or connected with the said marriage settlement, he put in a second demurrer as follows:-"To so much of the 29th interrogatory as requires me to produce and identify the books or papers containing any entries connected with the settlement, I demur, and for cause of demurrer say, that the said book or ledger contains particulars of confidential matters between myself and my clients." 63 although it was alleged in a former part of the order that the putative father appeared in person. AN order in bastardy having been removed into this court by certiorari, a rule nisi was obtained for the purpose of quashing it. The order was made under the 8 & 9 Vict. c. 10, and followed the form number 8 in the schedule annexed to the act. The order recited the birth of the bastard child; that a summons issued to N. Shipperbottom, the alleged father of the child; that the said N. S. appeared in pursuance of the summons; that the woman having Mr. Stuart and Mr. Beavan, in support of applied to the justices for an order on the said the demurrer, urged that the witness in his N. S.; and it being now proved to us in the demurrer had clearly embodied the rule of law presence and hearing of the attorney attending relative to the privilege of an attorney: he had on behalf of the said N. S., that the said child, stated that he was the attorney; that the com- was, &c. The words "of the attorney attendmunications were confidential; and that they ing on behalf of the said N. S.," were inserted related to the subject-matter in dispute. That to fill up the blank left in the form given in the was sufficient. How was it possible to enter schedule, and the objection taken to the order into the question of what was contained in the was, that it did not appear that the order was communications? They cited Parkhurst v. made in the presence of the putative father. Lowten, 2 Swans. 194; Carpmuel v. Powis, 1 Phill. 687; and Herring v. Clobery, 1 Phill. 91. Mr. Pashley. In convictions the court has held, that it must appear that the witnesses were examined in the presence of the prisoner, Mr. Bethell and Mr. Willcock contrà. but the court has never held that orders are to The Vice-Chancellor said, he could well un- be construed with the same degree of strictness. derstand that if the witness had been pressed When the jurisdiction of the justices is made on the question, he might have stated things to appear on the face of an order, the court will which would have been sufficient to show that make every intendment in favour of its validity. these communications were confidential. The Mr. Keane, contrà, contended that it was eviquestion was, whether he had done so upon dent from the form given in the schedule that these demurrers. He said that he received the it was intended the putative father should be letters in his character of confidential solicitor present when the order was made, and the act to those ladies. He might have done so, but does not give him any power to appear by athe had failed in stating sufficiently that the torney. letters he refused to produce were of a confi- Lord Denman, C. J. I had some doubts dential character; that fact was not stated ex- upon the validity of this order, but upon referplicitly enough to make it the ground of a law- ence to the Forms No. 7 & 8 in the schedule ful objection. As to the second demurrer, annexed to the act, I find from a note that the that was in itself quite general. He did not legislature contemplated the fact of the putative say that the entries contained matters of con- father appearing by attorney or counsel. This fidential communication with reference to the removes my difficulty, and I think the order alsubject of the 29th interrogatory, as between leging that proof was given in the presence and him and the ladies, or either of them; that he hearing of the attorney attending on behalf of had not by his position of fact made a sufficient the said putative father, is sufficient. ground for protection at law. His Honour Patteson, J. It is quite clear the legislature therefore overruled the demurrers with costs, intended that the putative father might appear but without prejudice to his demurring again. by attorney or counsel, otherwise I should have had some difficulty, because it is stated in the early part of the order that he attended in person, and in a subsequent part of the order that he appeared by his attorney. Wightman and Erle, J.s concurred. Rule discharged. Queen's Bench. (Before the Four Judges.) The Queen v. Nathaniel Shipperbottom. Easter ORDER IN BASTARDY UNDER 8 & 9 VICT. C. 10. A person against whom an application is made for an order in bastardy, under the 8 & 9 Vict. c. 10, may appear before the magistrates by attorney or counsel. An orner made according to the form given in the schedule annexed to the act, which states that the proof was given in the presence and hearing of the attorney appearing on behalf of the putative father, is sufficient, Queen's Bench Practice Caurt. (Before Mr. Justice Coleridge.) Mullins and another v. Ford. Tuesday, 4th May, 1847. NOTICE OF TRIAL.-STAY OF PROCEEDINGS. COUNTERMAND. Where the plaintiff's replication concludes to the country, he may at once give notice of trial, although issue is not formally joined between the parties. 64 Q. B. Practice Court.-Court of Review.-Sittings.-Parl. Proceedings.-Letter Box. Where a rule nisi contains a stay of proceedings, this only restrains the parties from proceeding with the action, but does not preclude them from countermanding their notice of trial. ON a former day Bramwell obtained a rule calling upon the plaintiffs to show cause why the notice of trial herein should not be set aside for irregularity, with costs, and that in the meantime all further proceedings be stayed. This was an action of detinue, in which the defendant pleaded "non detinet," and two special pleas, to which the plaintiffs replied, joining issue on the first plea, and traversing the other pleas, concluding to the country. The defendant had not been ruled to rejoin, but some days after the delivery of the replication the plaintiffs served notice of trial for the Middlesex sittings after the present Easter Te: m. The present rule was obtained on the ground that the notice of trial was irregular, issue not having been joined between the parties. Mr. Cole applied to remove the fiat from Bath to London, upon an affidavit stating that six-sevenths of the creditors resided at Luton, near London, and had expressed their wish to have the removal. The Chief Judge said, he would make the order as prayed, upon the production of an affidavit stating that the removal of the fiat would not only be for the benefit of the majority of the creditors, but for the benefit of the creditors generally. CHANCERY SITTINGS. Master of the Rolls. AT WESTMINSTER. Saturday. May 22 Motions. Monday Tuesday Monday T. W. Saunders showed cause, and produced an affidavit swearing to the countermanding of Thursday the notice of trial in due time, and contended- Friday 1st, that the present application was premature Saturday and unnecessary, inasmuch as the plaintiffs, by Monday the rules of practice, were at liberty to with- Tuesday draw their notice of trial as they had done, and Wednesday that if they proceeded to trial with the pleadings Thursday incomplete, the defendant might come and set Friday it aside; 2ndly, that the notice of trial was per- Saturday fectly regular; the R. G. H. T. 2 W. 4, r. 59, authorising the giving of the notice of trial at the time of delivering the replication, if the latter concludes to the country, even though issue be not then joined. Bramwell. The plaintiffs have violated the present rule, which stays proceedings by countermanding the notice-(Coleridge, J.-That merely restrains them from going forwards with the action, here they go backwards,) - they must bring themselves strictly within the rule of court which enables them to give their notice of trial at the time of delivering their replication; here their notice was not delivered until some days afterwards. Coleridge, J. The rule must be discharged. I think the plaintiffs were perfectly regular in their notice of trial; for although it is said by the terms of the rule of court that the notice of trial may be given at the time of the delivery of the replication, the object is, that when the formal pleadings are at an end, the plaintiff may give his notice of trial without delay, and it can make no difference in principle whether he gives his notice at the same time as his replication or afterwards. Rule discharged with costs. Court of Review. Re Pyne. May 5, 1847. REMOVAL OF FIAT.-AFFIDAVIT. The affidavit for removal of a fiat from one commissioner to another, ought to state that such removal will be for the benefit of the creditors generally. Friday Petitions in the General Pleas, Demurrers, Causes, 27 Motions. 28 29 Pleas, Demurrers, Causes, Motions. Pleas, Demurrers, Causes, Petitions in the General 11 Paper. 12 Motions. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, MAY 22, 1847. " Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. THE LORD CHANCELLOR'S BANK | present instance, to do little more than direct attention to the more important amendments which the bill suggests, merely observing, that if no greater or We lost no time in laying before our more extensive changes in the Law of readers a brief sketch of this measure Bankruptcy and its administration are conshortly after its appearance in print, and a templated than those suggested by this recent number contained a summary of the bill, the measure can scarcely be expected contents of each clause, copied from the to silence the complaints, or satisfy the marginal abstract, (ante, p. 20.) In one just expectations, of the public. The Law respect, the present measure undoubtedly of Bankruptcy is objectionable in many begins at the right end. It repeals no less respects, but the total absence of system than sixteen statutes, so far as they relate which prevails in its administration has to matters in bankruptcy, commencing with tended, more than any defects in the law the 6 Geo. 4, c. 16, and concluding with the 9 & 10 Vict. c. 28. itself, to render it inoperative and odious. Amongst the most striking changes which There might be some reason to com the new bill proposes in the existing law, we plain, that no attempt appears to have been may notice, in the first place, the amendment made to abridge the clauses copied from suggested with respect to a trader debtor's the repealed acts which it is now proposed summons as the foundation for a compulto re-enact, but, if we understand rightly, sory act of bankruptcy. Our readers will the bill presented by the Lord Chancellor remember that the summons issued to a is not put forward as a digested, complete, trader debtor, under the 5 & 6 Vict. c. measure which parliament is invited to 122, calls upon the debtor either to admit pass in its present shape, but merely as an the demand of the creditor, or depose that example of the manner in which the mul- he believes he has a good defence to such titudinous enactments now in force may demand; and if the debtor is minded, be reduced into something like system and upon any ground real or fanciful, to swear order, and some obvious improvements en- he believes he has a good defence, there is grafted thereon. Ample time, we presume, an end of the matter, the whole proceeding will be allowed for the consideration of the is inoperative, and according to the pracsubject, and further amendments intro- tice adopted by the Commissioners of duced as the bill assumes a more perfect Bankruptcy, the summons is discharged form, and the suggestions which the with costs to be paid by the creditor. The manner of its introduction invites are provision, which leaves it altogether to the severally entertained, and either adopted or rejected, as may be deemed expedient. Regarding the Lord Chancellor's bill in this light, any critical examination of its provisions would be premature and scarcely justifiable. We propose, therefore, in the VOL. XXXIV. No. 1,002. conscience of the debtor to determine his own belief as to the existence of a good defence, renders the proceeding in many See vol. 31, p. 541. b In re Feare, Leg. Obs, vol. 31, p. 466. E 66 The Lord Chancellor's Bankruptcy Law Amendment Bill. cases a mere mockery. To remedy this, maliciously, the Lord Chancellor, upon The Lord Chancellor's bill, after reciting the various acts of bankruptcy created by former statutes, enacts, that a trader not paying, securing, or compounding for a judgment debt upon which the plaintiff might sue out execution, or disobeying the order of any court of equity, or any order in bankruptcy or lunacy, for payment of money on a peremptory day fixed, after fourteen days' notice, shall be deemed to have committed an act of bankruptcy. The 193rd section contains a provision which does not seem to be necessary, and is in some measure unintelligible. It is in these terms: "That if the assignees commence any action estate, before the time allowed by this act for or suit, for any money due to the bankrupt's the bankrupt to dispute the fiat shall have elapsed, any defendant in any such action or suit shall be entitled, after notice given to the said assignees, to pay the same or any part thereof into the court in which such action or suit is brought, and all proceedings with respect to the money so paid into court shall A novel, and somewhat questionable, shall have elapsed, and if within that time the thereupon be stayed, until the time aforesaid authority is proposed to be vested in the bankrupt shall not have commenced such Lord Chancellor, by the 183rd section of action, suit, or other proceeding as aforesaid, the printed bill. If the petitioning credi- and prosecuted the same with due diligence, tor's debt turns out not to be really due, the money shall be paid out of court to the or there is any failure in the proof that the official assignee, and that out of such money person against whom the fiat in bankruptcy court thinks fit to be paid to such defendant such court may order such sum, if any, as such issued, committed an act of bankruptcy, for his costs and expenses, but otherwise shall and was a trader at the time of the issuing abide the event of such action, suit, or other EWSof the fiat, and it shall also appear that proceeding as aforesaid, and upon such event such fiat was taken out fraudulently or shall be paid out of court, either to the official See sections 151 to 156, inclusive. d Section 188, page 71, of printed bill. 2 The Lord Chancellor's Bankruptcy Bill.-Remedy for the Recovery of Small Tenements. 67 assignee, or to the person adjudged bankrupt, as the court shall direct, and that after such payment so made into court, it shall not be lawful for the person so adjudged bankrupt to proceed against the defendant for recovery of the same money." We incline to think that there is some omission, possibly a typographical error, in the latter part of the clause. In its present shape it is difficult even to guess at what is meant to be enacted. under a fiat issued in the trader's life. These provisions appear to afford a satisfactory remedy in cases in which the existing law is avowedly defective. REMEDY FOR THE RECOVERY OF We shall only add, that as the new bill proposes greatly to extend the authority exercised by the commissioners in bankruptcy, and to invest them with an enlarged discretion, it is of the utmost importance that the court should be placed on a different footing, and powers so forThe intention of the following clause is midable subjected to an effective control. sufficiently intelligible, but we question The bill now under consideration, it will whether it is expressed with sufficient be observed, is wholly irrespective of the clearness and certainty to enable the court law relating to insolvents; but we underto give it practical effect. It enacts— stand the Lord Chancellor is about to in"That if any bankrupt, being at the time introduce a separate measure on that subsolvent, shall (except upon the marriage of ject, and that when this has been done, the his children, or for some valuable considera- Bankruptcy Bill, the Insolvency Bill, and tion) have conveyed, assigned, or transferred the bill introduced by Lord Brougham, are to any of his children, or any other person, any all three to be referred to a select comhereditaments, offices, fees, annuities, leases, or mittee of the house of Lords. goods, or have delivered or made over to any such person, any bills, bonds, notes, or other securities, or have transferred his debts to any other person, or into any other person's name, the court shall have power to order the same to be sold and disposed of as aforesaid, and every such sale shall be valid against the bankrupt THE doubt we ventured to express, as and such children and persons as aforesaid, to the courts holding that the Small Debts and against all persons claiming under him." Act, repeals the statute 1 & 2 Vict. c. 74, If it be proposed that the Court of under which justices in petty sessions are Bankruptcy shall have power summarily to empowered to issue warrants of possession determine whether any assignment, trans- in regard to tenements not exceeding 201. fer, or gift, made by a person who after- in value, has occasioned several commuwards becomes bankrupt, is void as against nications from country correspondents, by creditors, this should be specifically de- whom the question, as might be supposed, clared, and suppose the property or secu- is deemed of considerable importance. rities to be in the hands of the assignee or Since the subject was last noticed in this donee, some mode should be pointed out by publication, our attention has been directed which the assignees of the bankrupt may to a case laid before Sir Frederick Thesiger, obtain possession before proceeding to a with that learned gentleman's opinion, sale. If the bankrupt's assignee is com- which in the result is confirmatory of the pelled, in the first instance, to try the view already suggested. The opinion is holder's title by an action of trover, this in these terms:-section will be in a great measure nugatory. "There is nothing in the 9 & 10 Vict. c. 95, which repeals the 1 & 2 Vict. c. 74; on the contrary, it appears to me that there is that in it which is almost equivalent to an exception. The bill, towards its close, contains a series of clauses, indicating the course of procedure to be adopted when a trader "The plaint is to be of personal actions, dies and no legal personal representative which of course does not include the recovery of possession of premises; but in the 58th is constituted within one month. In such section, there is an express exception of actions case, upon petition, and after notice left at of ejectment. Now, the summary remedy the last place of business or residence of given by the 1 & 2 Vict. c. 74, is a lieu of the the deceased trader, a fiat may issue, under proceedings by ejectment; and therefore it apwhich the messenger will be empowered pears to me, both negatively and positively, by warrant to take charge of the goods of that the jurisdiction of the justices under that the deceased trader; and if a legal personal representative be not constituted within two months, the official assignee may take out administration and proceed as act is not taken away. 'FREDERICK THESIGER. “Temple, 13th April, 1847.” • See ante, p. 17. |