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The Privilege Bill.- Procedency of Prince Albert. We have received the following suggestion leaves the question unsettled, as to the tion for the amendment of the bill from a precedency of the Prince in the House of learned correspondent :

Lords or in the Privy Council ; but it will It seeins to me the common law remedy of give his Royal Highness rank next to the the subject for a libel in the Queen's Courts Queen every where else,

" at ceremonials is likely to be seriously atferted; and it is only of every description, at royal marriages, fair that if the Courts are not to do justice, christenings or funerals, at banquets, prothat a remedy should at least be provided by cessions, and courtly receptions, at instalthe New Privilege Bill. Seeing also that a breach of privilege may

tations and investitures, at all religious, have its origin in libelous matter improperly civil, or military celebrations, upon all ocintroduced 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 inatter a subject may be all such occasions, rank before both heirs apseriously injurel, and such inatter in all fair. ness and justice ought in inany cases to be ex. Then as to the doubtful cases : we pre

parent and heirs presumptive to the throne, punged, 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 ibat 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. The loilowing is the proposed lause :

to her Majesty. This is clearly shown by Whereas in some cases serious and grievous

a good authority on this point. injury inay arise to individuals by libelluus

“If the Queen, therefore, should be advised matter being improperly introduced by wit nesses in depositions before the committees of precedence iminediately next to her own pero

to grant lo ber koyal Consort letters patent of the House, printed in the reports of the House, son, and at the same time make him a Privy and circulated throughout the einpire ; and Councillor, there would be no practical ditt whereas in justice to such persons-so aggrieved culty with regard tu

, bis place at the council as aforesaid, such matter ought to be ex pungeid; be it enacted, &c. that on petition to there custom has in a great measure superseded

board, notwithstanding the legal exception ; the House of Commons by such injured party, law. The occasions are very rare when any of

he said House will consider suchi petition, and the Royal Dukes are present; and upon all if the prayer of such petition be expedient and others, the prince would sit upon the right just, and not against the privileges of the band of hier Majesty, and precenleuce would be House, the suiil Honse will expunge the saine conceded to hiin, as a matter of course.

The accordingly; and it just and expedient, will council board is no longer what it was in the allow sach injured party to proceeil, and such days of Henry 8; at which time the king sat person is herelvy authorised to proceed by ac- there regulariy in person. The greater part tion against the libeller, and recover damages of the Privy Councillors were in constant at and costs.

tendance upon him. (Sir H. Nicolas' Preface to Council Register, vol. 1,

They rePI:ECEDENCY OF PRINCE ALBERT. wherever he went; much (though far from all)

sided in the Court, and accompanied bin

of the inost important business of the state In last Friday's Gazette appears the follow was transacted chere, and the order of sitting ing announcement: March 5.- Her Ma- when the members had to deliver their opijesty 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 Ciro

Councils are now merely Francis Albert, &c. Duke of Saxe Cobury tain orders, which must emanate from the and Gotha, K. G., .Her Majesty's Consort, sovereign in person. Wheu any of the Royal shall henceforth upon all occasions, and in Dinkes are present, they sit nexi the Queen on all meetings, except where otherwise pro- her right hand, the Lord President always next vided by act of parliament, hare, 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

officers are indiseriminately placed. It would have already taken of this subject, and to ihe end of the seventeenth century for a

not, probably, be deemed advisable to go back will, as we think, meet the convenience of precedent, or it would be found that Pridee This royal warrant or declara- | George of Denmark sat in council without

taking any oaths ;. not, therefore, as a Prity a See ante, p. 273, 307.

Councillor, bule pro honoris causâ. lle always,

p. 13)

the case.

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sworo.

however, occupied the place of honor, and his per to Mr. Hetherington, but that it was so attendance was very regular, though there is given by mistake, the usual fee being stated no record of his having ever taken the oaths; by the Clerks in Court to be half-a-guinea and at the accession of king William, when all the Privy Councillors were sworn, it is ex

only. It will be seen that the opinion of pressly stated that Prince George was not. He Mr. Knight Bruce treats this fact as immatewas first brought into council by James 2d, in rial, and had it been otherwise it can hardly person, and placed on his right hand, but not be considered that the mere fact of paying a The Precedence Question, pp. 22, 23. 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 reTais is a subject of great practical interest | tained a brief on a motion, which is a usual to the profession, and an opinion we are half guinea brief. enabled to lay before our readers affords us On the question so stated, Mr. K. Bruce's an opportunity of making some observations opinion is not only in the affirmative, but maon the subject, of wbich we shall avail our king the nature of theopposite party's motion selves.

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- thatupon 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 tual brief delivered, or a fresh retainer given. gone, gave a retainer to Mr. Pemberton for

Now leaving the above rule to have its the defendant. The cause lately coming own effect on the common sense of mankind. into the paper, the question of retainer had both in the profession and out of it, let us to be decided, and a case was prepared, and consider for a moment a little of the theory by Mr. Pemberton submitted to Mr. Knight of the doctrine or practice of retainer. Bruce, whose opinion was in the following In the obscurity in which the origin of words :

the practice is involved we may well be “An appearance for a plaintiff on a de- permitted to speculate upon its having orifendant's notice of motion to dismiss the ginated in the delivery of the brief itself. bill is materially different, I apprehend, from On parties becoming involved in litigation, a motion of course.

and desiring to have the benefit of some “It must depend on the circumstances of known and efficient counsel, the first thing the particular case whether the motion to he would do would be to get his brief up dismiss ought to be granted, or if refused, hastily, and deliver it first, so as to outstrip upon what terms; and although it hap. his adversary. Haste would beget, first, pened in the present instance that the mo- defectiveness in the brief; next, a formal tion was to be met, and was met by an un- brief merely; and lastly, a mere skeleton dertaking to speed, and that only, I think brief-or, retainer, but the effect and reathe case must be treated for the present soning would be the same, the counsel purpose in the same way as if an opposition holds his brief, or retainer, and his services of a different character had been offered. in the cause are secured. The kind of defence can create no distinc. But what services ? One would suppose tion. It seems to me that the plaintiff's such services as the party retaining might retainer was lost, and that the defendant, need- not that the retainer would be a who retained Mr. Pemberton on the 19th burthen rather than benefit, and compel him ult., is the party whose brief Mr. Pemberton to take the services when no need of any should hold on the hearing."

existed; or, as in the present case, to cumT. Knight Bruce." pel him to pay fees thrice as large as the 5th March, 1840.

services justified or the practice warranted ! The case stated that a fee of a guinea And it is not to be forgotten that the agreed had açta ally been given with the motion-pa- effect of a retainer is only to entitle the

2 C 2

372

On the Practice of Retainers. - Trusts for Separate Use. party giving it to notice of performance. struck with what appeared to me a confuundIf the opposite party give or tender a brief, ing of the two cases of a trust for separate use it is qnite agreed that the retainer can only only, and a trust for separate use without power be sustained by the party actually giving led to form this opinion by your immediately

of alienation—and I was in a great ineasure a brief, but the rule now laid down makes

preceding observations. On the whole, howthe non-delivery of a brief, whether the ever, after consideration, and by rejecting the opposite party tenders one or not, ipso facto words from whether, 8c.” as surplusage, I an abandonment of the retainer given, with came to the conclusion that your meaning out the least ground for any presumed in- simply was, that a trust for separate use was tention to such effect.

valid during a future coverture. There is another point in which this rule of acquiescence upon the letter of your cor

But on perusing in page 313, your remarks as to retainers may be considered, and that respondent H. B., I cannot view them in any is, as it affects the interest and opportunity other light than as a confirmation of my first of advancement of the junior members of impression, that you were confounding the the bar; and it is only matter of surprise two distinct cases I have mentioned—and, that they have not long since taken it up; subject to your correction, I must consider it is well known that it is not overlooked by your opinion to be, that a trust for separate

use cannot exist during coverture, unless it is them.

protected by a restraint on anticipation,-and If neither the high-minded leaders of the that if not so expressly protected, the restraint bar, nor the self-interest of their junior will nevertheless attach as a matter of course, brethren will save us from this special for after having said in p. 275, what I have pleading, in which the above rules tend to before mentioned-you say in p. 313,"We involve all branches of the profession, it intended to have said whether the clause will behove the solicitors to take the matter against alienation be inserted or not, i. e. the into their own hands, and in their hands the gift over in that event to soine other person.

In the case of Tullett v. Armstrong, ante, evil seems to admit of an easy remedy. p. 264, it will be seen that the second gift Let the profession but determine amongst under the first will, was not accompanied with themselves to consider a retainer once given the restraint on alienation, although in other as good during the continuance of the cause, gifts by the same testator there was this re. and an end would thus at once be put to straint, and the Lord Chancellor held that this

inade no difference,a but that if separate these “nice points” on the neglect of retainers, the only effect of which is to increase estate was to be supported, it must be sup.

ported on both branches.' outlay and loss, and to encumber the pro

In venturing to question the correctness of fession with additional rules for the benefit your opinion, and that of H. B. as to the effect of those who may delight in “sharp prac- of the recent decision in Tullett v. Armstrong, tice.”

I would first beg to call your attention to the It is true that such a rule would be found state of the decisions at the time of the Lord difficult to be acted upon in all cases, and

Chancellor's judgment in that case.

In Newton v. Reid," the Vice Chancellor might be restricted in practice to causes had decided that a restraint on alienution atbetween respectable offices (where indeed, tached to a

ist for separate use did not we believe, it is very much acted upon at extend to future coverture ; but in Benson v. present) but this would remedy more than Benson,e and Davies v. Thornycroft,d he exhalf the evil ; and the remedy might be still pressly said that he considered the question of further extended by an understanding be- the validity of trusts for seporate use untouched tween the parties that in each particular by that decision, and he decided the latter cause and at the commencement thereof, during a subsequent coverture. Lord Cotten.

case in favour of the validity of such a trust as soon as a retainer was given, its effect ham’s'observations in Massey v. Purker, e (which should be considered agreed upon as above. was a case of separate use,) were grounded

We may return to this matter on a fu- upon the doctrine of Newton v. Reid, (a case ture occasion.

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 prohibiTRUSTS FOR SEPARATE USE.

tion against anticipation gives to it, and wbich alone, in many cases, prevents it from being

an evil rather than a benefit to the wife,” (see Sir,

his Lordship's observations in Tullett v. ArmOn reading your observations in p. 275, ante, strong.) But it may also be observed that his wherein you say

we hold that when the marriage takes place, it (the trust for separate a Where does the Lord Choncellor say this? use) will become effectual whether the clause b 4 Sim. 141.

c 6 Sim. 126. against anticipation be inserted or not.I was

d lbid. 420.

e 2 M. & K. 174.

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Lordship decided Stiffe v. Everitt, (a case of alienated by the wife during her coverture, restraini on alienution) contrary to that of (see the observations of Lord Cottenham imNewton v. Reid.

mediately following the sentence quoted by But his Lordship, at the commencement of H. B.; also Fettiplace v. Gorges,n Parkes v. his judgment in Tullett v. Armstrong, says as White,o Master v. Hobbs,P 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 itation,), even to her husband. Pybus v. Smith.r 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 iny 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 with

Ebor. out power of anticipation, it must exist with P.S. I venture to suggest whether you are that qualification, if it exist at all; and there not attributing different meanings to the words is no principle upon which it can be held that anticipation and alienation, which in these cases the separate estate operates during a coverture are undoubtedly synonymous. subsequent to the gift, but the prohibition against anticipation with which the gift was [If we have ever been inadvertently led to a qualified, does not."

wrong conclusion or statement, our readers Here, as well as in the sentence you quote; will, we think, do us the justice to say that we “that if separate estate is to be supported, it must be supported on both branches,” it is have always been ready to correct it as soon obvious that his Lordship is referring to trusts as possible; and on the present occasion we for separate estate without power of anticipa. should have an additional pleasure in doing tion, and it cannot be inferred that he meant to say that a trust for separate use is invalid this to so courteous a correspondent as “Ebor," during coverture, unless it is accompanied by but baving attentively read his letter and our a restraint on alienation, but that where the two have been joined together, one cannot exist own observations, we cannot understand how unless the other does.

he has been led to suppose that we are “ of H. B., in support of his opinion, quotes opinion that a trust for separate use cannot the following observations of the Lord Chan. cellor :-“After the most anxious considera- exist during coverture, unless it is protected tion, I have come to the conclusion that the by a restraint on anticipation.” Not enterjurisdiction which this Court has assumed in taining this opinion, it would be rather hard similar cases, justifies it in extending it to the protection of the separate estate, with its quali. on us to be called on to support it; but as a fications and restrictions attached to it, through- fuil discussion upon every part of this quesout the subsequent coverture, &c.". But his tion will be useful, we readily insert this letLordship is evidently here again referring to trusts for separate use, accompanied by a re- ter, and invite attention to the following pro. straint on alienation ; and when he talks of positions of our correspondent. Ed.] protecting the separate estate with its qualifica

As to trusts for separate use. tions und restrictions attached to it, he is over. ruling the opinion expressed by the Vice feme covert, during a then existing coverture

Ist. That a trust for the separate use of a Chancellor in Davies v. Thornycroft, although the prohibition against anticipation only is valid during that coverture (Bennet v.

s but ceases when it is determined. cannot operate during a subsequent coverture, Benson v. Benson.t the property may maintain its quality of sepa

2d. That a trust for the separate use of a rate estate."

In support of the view I take that a trust feme covert during her present or any future cofor separate use, not accompanied by a re-Beable v. Dodd.u N.B. The cases mentioned

verture, is valid during such future coverture, straint on alienation, is valid during a subse in the next proposition, will apply also to this quent 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,s Anderson v. Anderson,” | feme sole during a future coverture is valid. Simson v. Jones, i Davies v. Thornycroft, k John-Jacobs v. Amyati,v Countess of Struthmore v. son v. Johnson, and the more recent decision of the Master of the Rolls in Scarborough v. n 3 B. C. C. 8. Borman affirmed by the Lord Chancellor on o U Ves. 209.

p 13 Leg. Obs. 186. appeal along with Tullett v. Armstrong.m But 9 You quote the decision upon this point as I also hold that property so held, may be if it confirmed your view that a separate es

tate must, during coverture, be inalienable ; f 11 Leg. Obs. 305. & I Madd. 376 n. but it has quite a contrary effect. h 2 M. & K. 427. i 2 R. & M. 365.

rl Ves. 189. k 6 Siin. 420. 114 Leg. Obs. 195. $ 2 P. Wis. 316.

t 6 Sim. 126. m 19 Leg. Obs. 263.

u 1 D. & E. 193.

v 1 Madd. 376 n.

case.

374

Trusts for Separate Use.--Practical Points of General Interest. Bowes, w

W Anderson v. Anderson, Simson v. I be forthwith apprehended, it should be larr. Jones, y Davies v. Thornycroft, Johnson v. ful for such judge, by a special order to direct Johnson, a Scarborough v. Borman.b

That such defendant or defendauts so about 4th. That a fund settled for separate use to quit England, shall be held to bail for such only, ard not protected by a restraint on alien- sum as such judge shall think fit, not exceedation, may be disposed of during either dis-ing the amount of the delu or damages; and coverture (4cton' v. White), or coverture, thereupon it shall be lawful for such plaintiff, (Fettiplace v. Gorges, d Parkes v. White,e Ma- within the time which shall be expressed in her v. Hobbs, Tullett_v. Armstrong,5) and such order, but not afterwards, lo sue out one even to the husband. Pybus v. Smith.h or more writ or writs of capias into one or As to restraints on alienation.

more different counties, as the case may re5th. That a restraint on alienation by a feme quire, against any such defendant, so directed corer! during a then existing coverture, only to be held to bail, which writ of capias shall be is valid during that coverture, but ceases when in the form contained in the schedule to this it is determined. Barton v. Briscoe.i

act annexed, and shall bear date on the day on 6th. That a restraint on alienation by a feme which the saine shall be issued : provided alcorert during her present or any future cover- ways, that the said writ of capias and all writs ture is inoperative after the present coverture of execution to be issued out of the Superior is determined, and during the subsequent dis- Courts of Law at Westminster into the councoverture. Jones v. Sulter.j See post, Prop. 8. ties palatine of Lancaster and Durham sball be 7th. That a restraint on alienation by a seme of Lancaster, or his deputy there, or to the

directed to the chancellor of the county palatine sole during a future coverture, is inoperative during discoverture. Woodmeston v. Walker, Chancellor of the county palatine of Durhain, Brown v. Pocock, Ist case.l

or his deputy there. And by section 7, it is 8th. That a restraint on alienation by a feme enacted, that every prisoner who at the time sole during a future coverture, if the fund be appointed for the commencement of this act, not alienated during discoverture, is valid shall be in custody upon mesne process for when the coverture takes place. 'Stiffe v. any debt or demand, and shall not have fled a Everitt,m Tullett v. Armstrong. The same

petition to be discharged under the laws now in rule will of course apply to a feme sovert who force for the relief of insolvent debtors, shall is similarly protected during a future cover- be entitled to his discharge upon entering a ture, becoining discovert, and afterwards mar. common appearance to the action. Provided rying again.

nevertheless, that every such prisoner shall be Jiable 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 PRACTICAL POINTS OF GENERAL plaintiff, at whose suit he was previously INTEŽEST.

arrested, or of any other plaintiff.

In a recent case, Mr. Justice Coleridge held,

that a mere suspicion that a defendant is about By the 1 & 2 Vic., c. 110, s. 7, it is enacted, to leave England is not sufficient ground for that if a plaintiff in any action in any of her making an order for his arrest or detention Majesty's superior Couris of Law at Westminster, in which the defendant is now liable to under this section of the statute. arreșt, whether upon the order of a judge, or “In considering this point (there were other without such order, shall, by the affadavit of points in this case,] I must treat the plaintiff himself or of some other person shew to the as making an original application for the satisfaction of a judge of one of the said supe- detainer or new arrest of the defendant. In rior courts, that such plaintiff has a cause of either case it must be shewn to my satisfaction action against the defendant or defendants to that there is reasonable cause to believe that the amount of £20 or upwards, or bas sus- the defendant is about to quit England, unless tained damages to that amount, and that there he is detained, or forthwith apprehended; and is probable cause for believing that the defend the facts on which such probability arises, ant or any one or more of the defendants is or should be stated in the affidarit. Without are about to quit England, unless he or they going into a detailed examination of the facts

alleged on either side, it may be taken generally w 2 B. C C. 345; and 2 Ves. 22.

on the one hand, that there is some reason to x 2 M. & K. 427. y 2 R. & M. 365. believe that the defendant's absence from z 6 Sin. 420.

a 14 Leg. Obs. 195. England, before proceedings commenced, was b 19 L. 0. 263.

cl S. & S. 429. occasioned, or has been in part, at least, cond 3 B. C. C. S.

e 11 Ves. 209.

tinued, by a desire to avoid the plaintiff's suit; f 13 L. O. 186.

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.

now; that his wife has come to reside with him h i Ves. 189.

Jacob), 603.

England; that he is arranging for the return j 2 R. & M. 208. k 2 R. & M. 197.

of his children from abroad; that at the time I Jbid. 210.

m 11 L 0, 305. of his arrest he was bond fide negotiating for u 19 L. (). 263.

the lease of a house in London ; and lastly,

IMPRISONMENT FOR DEBT.

i

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