370 The Privilege Bill.-Precedency of Prince Albert. We have received the following sugges- tion leaves the question unsettled, as to the tion for the amendment of the bill from a learned correspondent : It seems to me the common law remedy of the subject for a libel in the Queen's Courts is likely to be seriously affected; and it is only fair that if the Courts are not to do justice, that a remedy should at least be provided by the New Privilege Bill. precedency of the Prince in the House of Lords or in the Privy Council; but it will give his Royal Highness rank next to the Queen every where else, "at ceremonials of every description, at royal marriages, christenings or funerals, at banquets, processions, and courtly receptions, at installations and investitures, at all religious, Seeing also that a breach of privilege may civil, or military celebrations, upon all ochave its origin in libelous matter improperly introduced by witnesses in depositions before casions, formal or social, public or private," committees of the House, and printed in their (see ante, p. 308), during the life of her reports, and circulated throughout the empire, Majesty. Prince Albert will therefore, on by which libellous matter a subject may be all such occasions, rank before both heirs apseriously injured, and such matter in all fair-parent and heirs presumptive to the throne. ness and justice ought in many cases to be ex-Then as to the doubtful cases: we prepunged, I beg to propose a new clause to the Privilege Bill, that on petition to the House sume it is not the intention of the prince to from the injured party, the House, anxious accept a peerage, and if so, precedence in that nobody should be wronged without a the House of Lords is of no consequence to remedy, will consider such petition; and if him: it is, however, probable that he will the same be expedient and just, and not against be created a Privy Councillor; but here, on the privileges of the House, they will direct all ordinary occasions, he would stand next the same to be expunged accordingly. to her Majesty. This is clearly shown by a good authority on this point. The following is the proposed clause :Whereas in some cases serious and grievous injury may arise to individuals by libellous matter being improperly introduced by wit nesses in depositions before the committees of the House, printed in the reports of the House, and circulated throughout the empire; and whereas in justice to such persons so aggrieved as aforesaid, such matter ought to be ex punged; be it enacted, &c. that on petition to the House of Commons by such injured party, the said House will consider such petition, and if the prayer of such petition be expedient and just, and not against the privileges of the House, the said loose will expunge the same accordingly, and if just and expedient, will allow such injured party to proceed, and such person is hereby authorised to proceed by action against the libeller, and recover damages and costs. PRECEDENCY OF PRINCE ALBERT. "If the Queen, therefore, should be advised to grant to her Royal Consort letters patent of precedence immediately next to her own person, and at the same time make him a Privy Councillor, there would be no practical difficulty with regard to his place at the council board, notwithstanding the legal exception; there custom has in a great measure superseded law. The occasions are very rare when any of the Royal Dukes are present; and upon all others, the prince would sit upon the right hand of her Majesty, and precedence would be conceded to him, as a matter of course. The council board is no longer what it was in the days of Henry 8; at which time the king sat there regularly in person. The greater part of the Privy Councillors were in constant attendance upon him. (Sir H. Nicolas' Preface to Council Register, vol. 1, p. 13) They resided in the Court, and accompanied him wherever he went; much (though far from all) of the most important business of the state In last Friday's Gazette appears the follow-was transacted there, and the order of sitting ing announcement: March 5.- Her Ma- when the members had to deliver their opi jesty has been pleased to declare and ordain nions seriatim, beginning with the lowest, was that Field Marshal His Royal Highness formal assemblies, for the expedition of cernot important. now merely Councils are Francis Albert, &c. Duke of Saxe Coburg tain orders, which must emanate from the and Gotha, K. G., Her Majesty's Consort, sovereign in person. When any of the Royal shall henceforth upon all occasions, and in Dukes are present, they sit next the Queen on all meetings, except where otherwise pro-her right hand, the Lord President always next vided by act of parliament, have, hold and her on her left. And although the Lord enjoy place, pre-eminence, and precedence, President, and the Chancellor, when present, next to her Majesty." This announcement sit on either side of the Queen, all the other is in accordance with the view which we not, probably, be deemed advisable to go back officers are indiscriminately placed. It would have already taken of this subject, and to the end of the seventeenth century for a will, as we think, meet the convenience of precedent, or it would be found that Prince This royal warrant or declara-George of Denmark sat in council without a See ante, p, 273, 307. the case. taking any oaths; not, therefore, as a Privy Councillor, but pro honoris causa. He always, On the Practice of Retainers. however, occupied the place of honor, and his attendance was very regular, though there is no record of his having ever taken the oaths; and at the accession of king William, when all the Privy Councillors were sworn, it is expressly stated that Prince George was not. He was first brought into council by James 2d, in person, and placed on his right hand, but not The Precedence Question, pp. 22, 23 sworn." 371 per to Mr. Hetherington, but that it was so given by mistake, the usual fee being stated by the Clerks in Court to be half-a-guinea only. It will be seen that the opinion of Mr. Knight Bruce treats this fact as immaterial, and had it been otherwise it can hardly be considered that the mere fact of paying a larger fee than the practice warranted could have affected the question at issue. The ON THE PRACTICE OF RETAINERS. question in truth was, whether a party who has given a retainer loses the benefit of such retainer by omitting to give the counsel retained a brief on a motion, which is a usual half guinea brief. This is a subject of great practical interest to the profession, and an opinion we are enabled to lay before our readers affords us an opportunity of making some observations on the subject, of which we shall avail our-king the nature of the opposite party's motion selves. On the question so stated, Mr. K. Bruce's opinion is not only in the affirmative, but ma the test of the obligation of the retaining The following circumstances have lately party to give a leading brief; it in fact affirms occurred in a cause at the Rolls. The plain- that upon every application to which a defence tiff gave a special retainer to Mr. Pemberton. may on any supposed case be set up, and in One of the defendants afterwards gave the spite of their being in fact no ground or inusual notice to dismiss for want of prosecu- tention to raise any defence at all, the retion. The plaintiffs on this motion gave a taining party is nevertheless bound to give motion-paper to Mr. Hetherington, their ju- a brief for no other cause than to preserve nior counsel, to undertake to speed; giving his retainer. This proposition, stated in of course, no brief to Mr. Pemberton on the other words, is that on every application beoccasion. On this, the defendant contend-fore the Court there must either be an acing that the plaintiff's retainer was ipso facto gone, gave a retainer to Mr. Pemberton for the defendant. The cause lately coming into the paper, the question of retainer had to be decided, and a case was prepared, and by Mr. Pemberton submitted to Mr. Knight Bruce, whose opinion was in the following words: " An appearance for a plaintiff on a defendant's notice of motion to dismiss the bill is materially different, I apprehend, from a motion of course. "It must depend on the circumstances of the particular case whether the motion to dismiss ought to be granted, or if refused, upon what terms; and although it hap. pened in the present instance that the motion was to be met, and was met by an undertaking to speed, and that only, I think the case must be treated for the present purpose in the same way as if an opposition of a different character had been offered. The kind of defence can create no distinction. It seems to me that the plaintiff's retainer was lost, and that the defendant, who retained Mr. Pemberton on the 19th ult., is the party whose brief Mr. Pemberton should hold on the hearing." "T. KNIGHT BRUCE." 5th March, 1840. The case stated that a fee of a guinea had actually been given with the motion-pa tual brief delivered, or a fresh retainer given. Now leaving the above rule to have its own effect on the common sense of mankind, both in the profession and out of it, let us consider for a moment a little of the theory of the doctrine or practice of retainer. In the obscurity in which the origin of the practice is involved we may well be permitted to speculate upon its having originated in the delivery of the brief itself. On parties becoming involved in litigation, and desiring to have the benefit of some known and efficient counsel, the first thing he would do would be to get his brief up hastily, and deliver it first, so as to outstrip his adversary. Haste would beget, first, defectiveness in the brief; next, a formal brief merely; and lastly, a mere skeleton brief-or, retainer-but the effect and reasoning would be the same- the counsel holds his brief, or retainer, and his services in the cause are secured. But what services? One would suppose such services as the party retaining might need-not that the retainer would be a burthen rather than benefit, and compel him to take the services when no need of any existed; or, as in the present case, to compel him to pay fees thrice as large as the services justified or the practice warranted! And it is not to be forgotten that the agreed effect of a retainer is only to entitle the 372 On the Practice of Retainers. Trusts for Separate Use. party giving it to notice of performance. | struck with what appeared to me a confound If the opposite party give or tender a brief, it is qnite agreed that the retainer can only be sustained by the party actually giving a brief, but the rule now laid down makes the non-delivery of a brief, whether the opposite party tenders one or not, ipso facto an abandonment of the retainer given, without the least ground for any presumed in them. If neither the high-minded leaders of the bar, nor the self-interest of their junior brethren will save us from this special pleading, in which the above rules tend to involve all branches of the profession, it will behove the solicitors to take the matter into their own hands, and in their hands the evil seems to admit of an easy remedy. Let the profession but determine amongst themselves to consider a retainer once given as good during the continuance of the cause, and an end would thus at once be put to these " nice points" on the neglect of retainers, the only effect of which is to increase outlay and loss, and to encumber the profession with additional rules for the benefit of those who may delight in "sharp practice." It is true that such a rule would be found difficult to be acted upon in all cases, and might be restricted in practice to causes between respectable offices (where indeed, we believe, it is very much acted upon at present) but this would remedy more than half the evil; and the remedy might be still further extended by an understanding between the parties that in each particular cause and at the commencement thereof, as soon as a retainer was given, its effect should be considered agreed upon as above. We may return to this matter on a future occasion. TRUSTS FOR SEPARATE USE. Sir, On reading your observations in p. 275, ante, wherein you say we hold that when the marriage takes place, it (the trust for separate use) will become effectual whether the clause against anticipation be inserted or not." I was ing of the two cases of a trust for separate use only, and a trust for separate use without power led to form this opinion by your immediately of alienation-and I was in a great measure preceding observations. On the whole, however, after consideration, and by rejecting the words from "whether, &c." as surplusage, 1 came to the conclusion that your meaning simply was, that a trust for separate use was valid during a future coverture. of acquiescence upon the letter of your corBut on perusing in page 313, your remarks respondent H. B., I cannot view them in any other light than as a confirmation of my first impression, that you were confounding the two distinct cases I have mentioned and, subject to your correction, I must consider your opinion to be, that a trust for separate use cannot exist during coverture, unless it is that if not so expressly protected, the restraint protected by a restraint on anticipation,—and will nevertheless attach as a matter of course, for after having said in p. 275, what I have before mentioned-you say in p. 313, "We intended to have said whether the clause against alienation be inserted or not, i. e. the gift over in that event to some other person. In the case of Tullett v. Armstrong, ante, p. 264, it will be seen that the second gift under the first will, was not accompanied with the restraint on alienation,' although in other gifts by the same testator there was this restraint, and the Lord Chancellor held that this made no difference,a but that if separate estate was to be supported, it must be supported on both branches.' In venturing to question the correctness of your opinion, and that of H. B. as to the effect of the recent decision in Tullett v. Armstrong, I would first beg to call your attention to the state of the decisions at the time of the Lord Chancellor's judgment in that case. In Newton v. Reid, the Vice Chancellor had decided that a restraint on alienation attached to a trust for separate use did not extend to future coverture; but in Benson v. Benson,e and Davies v. Thornycroft, he expressly said that he considered the question of the validity of trusts for seporate use untouched by that decision, and he decided the latter during a subsequent coverture. Lord Cotten case in favour of the validity of such a trust ham's observations in Massey v. Parker,e (which was a case of separate use,) were grounded upon the doctrine of Newton v. Reid, (a case of restraint on alienation) it not having at that time occurred to him, "that the separate estate could survive to a subsequent coverture, stripped of the protection which the prohibition against anticipation gives to it, and which alone, in many cases, prevents it from being an evil rather than a benefit to the wife," (see his Lordship's observations in Tullett v. Armstrong.) But it may also be observed that his Lordship decided Stiffe v. Everitt, (a case of alienated by the wife during her coverture, restraint on alienation) contrary to that of Newton v. Reid. (see the observations of Lord Cottenham immediately following the sentence quoted by But his Lordship, at the commencement of H. B.; also Fettiplace v. Gorges, Parkes v. his judgment in Tullett v. Armstrong, says as White, Master v. Hobbs, and Tullett v. Armfollows: "The question in this case is as to strong, as to the second devise in the will, the clause against anticipation-but I agree where there were no words prohibiting alienwith the Master of the Rolls in thinking it ation,) even to her husband. Pybus v. Smith not only embraces the question of separate I beg to apologize for the length of these estate, which has been the subject of much remarks, but I have been unable to shorten discussion, but that these two questions are them so as to express my meaning fully, and identical as to the principles which must re- still further apologies will be due if I should gulate the decisions upon them; by which I have misunderstood your observations. mean, if the case be of a separate estate withEBOR. out power of anticipation, it must exist with that qualification, if it exist at all; and there is no principle upon which it can be held that the separate estate operates during a coverture subsequent to the gift, but the prohibition against anticipation with which the gift was qualified, does not." Here, as well as in the sentence you quote, "that if separate estate is to be supported, it must be supported on both branches," it is obvious that his Lordship is referring to trusts for separate estate without power of anticipation, and it cannot be inferred that he meant to say that a trust for separate use is invalid during coverture, unless it is accompanied by a restraint on alienation, but that where the two have been joined together, one cannot exist unless the other does. P.S. I venture to suggest whether you are not attributing different meanings to the words anticipation and alienation, which in these cases are undoubtedly synonymous. [If we have ever been inadvertently led to a wrong conclusion or statement, our readers will, we think, do us the justice to say that we have always been ready to correct it as soon as possible; and on the present occasion we should have an additional pleasure in doing this to so courteous a correspondent as "Ebor," but having attentively read his letter and our own observations, we cannot understand how he has been led to suppose that we are "of opinion that a trust for separate use cannot exist during coverture, unless it is protected by a restraint on anticipation." Not entertaining this opinion, it would be rather hard on us to be called on to support it; but as a fuil discussion upon every part of this question will be useful, we readily insert this let H. B., in support of his opinion, quotes the following observations of the Lord Chancellor :-"After the most anxious consideration, I have come to the conclusion that the jurisdiction which this Court has assumed in similar cases, justifies it in extending it to the protection of the separate estate, with its qualifications and restrictions attached to it, throughout the subsequent coverture, &c." But his Lordship is evidently here again referring to trusts for separate use, accompanied by a re-ter, and invite attention to the following prostraint on alienation; and when he talks of positions of our correspondent. ED.] protecting the separate estate with its qualifications and restrictions attached to it, he is overruling the opinion expressed by the Vice Chancellor in Davies v. Thornycroft, "that although the prohibition against anticipation cannot operate during a subsequent coverture, the property may maintain its quality of separate estate." h As to trusts for separate use. 1st. That a trust for the separate use of a feme covert, during a then existing coverture Davis), but ceases when it is determined. only is valid during that coverture (Bennet v. Benson v. Benson.t 2d. That a trust for the separate use of a verture, is valid during such future coverture, feme covert during her present or any future coBeable v. Dodd, N.B. The cases mentioned in the next proposition, will apply also to this case. In support of the view I take that a trust for separate use, not accompanied by a restraint on alienation, is valid during a subsequent coverture as against the marital rights of the husband, I would refer you to the cases 3d. That a trust for the separate use of a of Jacobs v. Amyatt, Anderson v. Anderson, feme sole during a future coverture is valid. Simson v. Jones, Davies v. Thornycroft, John-Jacobs v. Amyatt, Countess of Strathmore v. son v. Johnson, and the more recent decision of the Master of the Rolls in Scarborough v. Borman affirmed by the Lord Chancellor on appeal along with Tullett v. Armstrong. But I also hold that property so held, may be n 3 B. C. C. 8. P 13 Leg. Obs. 186. o 11 Ves. 209. 4 You quote the decision upon this point as if it confirmed your view that a separate estate must, during coverture, be inalienable; but it has quite a contrary effect. r 1 Ves. 189. s 2 P. Wins. 316. u 1 D. & E. 193. t 6 Sim. 126. v 1 Madd. 376 n. 371 W Trusts for Separate Use.-Practical Points of General Interest. Bowes, Anderson v. Anderson, Simson v. 4th. That a fund settled for separate use only, and not protected by a restraint on alienation, may be disposed of during either dis-ing the amount of the debt or damages; and coverture (Acton v. White), or coverture, (Fettiplace v. Gorges, Parkes v. White, Maher v. Hobbs, Tullett v. Armstrong,5) and even to the husband. Pybus v. Smith.h As to restraints on alienation. 5th. That a restraint on alienation by a feme covert during a then existing coverture, only is valid during that coverture, but ceases when it is determined. Barton v. Briscoe.i be forthwith apprehended, it should be law ful for such judge, by a special order to direct that such defendant or defendants so about to quit England, shall be held to bail for such sum as such judge shall think fit, not exceed. thereupon it shall be lawful for such plaintiff, within the time which shall be expressed in such order, but not afterwards, to sue out one or more writ or writs of capias into one or more different counties, as the case may reto be held to bail, which writ of capias shall be quire, against any such defendant, so directed in the form contained in the schedule to this act annexed, and shall bear date on the day on which the same shall be issued: provided al 6th. That a restraint on alienation by a feme covert during her present or any future cover-ways, that the said writ of capias and all writs ture is inoperative after the present coverture Courts of Law at Westminster into the counof execution to be issued out of the Superior is determined, and during the subsequent discoverture. Jones v. Salters See post, Prop. 8. ties palatine of Lancaster and Durham shall be 7th. That a restraint on alienation by a feme directed to the chancellor of the county palatine sole during a future coverture, is inoperative Chancellor of the county palatine of Durham, of Lancaster, or his deputy there, or to the during discoverture. Woodmeston v. Walker, Brown v. Pocock, 1st case.1 or his deputy there. And by section 7, it is enacted, that every prisoner who at the time appointed for the commencement of this act, shall be in custody upon mesne process for any debt or demand, and shall not have filed a petition to be discharged under the laws now in force for the relief of insolvent debtors, shall be entitled to his discharge upon entering a common appearance to the action. Provided nevertheless, that every such prisoner shall be liable to be detained, or after such discharge to be again arrested, by virtue of any such special order as aforesaid, at the suit of the 8th. That a restraint on alienation by a feme sole during a future coverture, if the fund be not alienated during discoverture, is valid when the coverture takes place. Stiffe v. Everitt Tullett v. Armstrong. The same rule will of course apply to a feme sovert who is similarly protected during a future coverture, becoming discovert, and afterwards marrying again. PRACTICAL POINTS OF GENERAL plaintiff, at whose suit he was previously INTEREST. IMPRISONMENT FOR DEBT. By the 1 & 2 Vic., c. 110, s. 7, it is enacted, that if a plaintiff in any action in any of her Majesty's superior Courts of Law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a judge, or without such order, shall, by the affadavit of himself or of some other person shew to the satisfaction of a judge of one of the said superior courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of £20 or upwards, or has sustained damages to that amount, and that there is probable cause for believing that the defendant or any one or more of the defendants is or are about to quit England, unless he or they w 2 B. C C. 345; and 2 Ves. 22. x 2 M. & K. 427. z 6 Sim. 420. b 19 L. O. 263. d 3 B. C. C. S. f 13 L. O. 186. y 2 R. & M. 365. arrested, or of any other plaintiff. In a recent case, Mr. Justice Coleridge held, that a mere suspicion that a defendant is about to leave England is not sufficient ground for making an order for his arrest or detention under this section of the statute. "In considering this point [there were other points in this case,] I must treat the plaintiff as making an original application for the detainer or new arrest of the defendant. In either case it must be shewn to my satisfaction that there is reasonable cause to believe that the defendant is about to quit England, unless he is detained, or forthwith apprehended; and the facts on which such probability arises, should be stated in the affidavit. Without going into a detailed examination of the facts alleged on either side, it may be taken generally on the one hand, that there is some reason to believe that the defendant's absence from England, before proceedings commenced, was occasioned, or has been in part, at least, continued, by a desire to avoid the plaintiff's suit; but on the other hand, it is sworn that the de * 19 L. O 263,-as to the second devise in fendant has no intention to leave the country the first will. h1 Ves. 189. j 2 R. & M. 208. 1 Ibid. 210. a 19 L. (. 263. i Jacob, 603. k 2 R. & M. 197. now; that his wife has come to reside with him in England; that he is arranging for the return of his children from abroad; that at the time of his arrest he was bond fide negotiating for the lease of a house in London; and lastly, |
