Changes in the Law, No. XI. 151 CHANGES IN THE LAW DURING | prosecuted in the Court of Bankruptcy or THE LAST SESSION OF PARLIA- elsewhere, is to be received in evidence MENT, 1831-1832, No XI. We shall now point out the changes which have been made in the law by three Acts of some importance, which were passed in the last session of Parliament. BANKRUPTS. unless first entered of record, (§ 8.) Proceedings in bankruptcy purporting to be sealed with the seal of the Court, are to be received as evidence (§ 9). By & 10, the Lord Chancellor is empowered to direct certain monies standing to the credit of the Secretary of Bankrupts' account, to be carried to the Secretary of Bankrupts Com pensation account, and vice versa.. CORPORATIONS. The most conspicuous of these is the 2 & 3 W. 4, e. 114, which was introduced by Mr. Freshfield. It is enacted by the 6 G. By 2 & 3 W. 4, c. 69, certain enact 4, c. 16. §§ 95 and 96, that the Lord ments are made to restrain corporations Chancellor may, upon petition, direct, any from the application of the corporate pro deposition, proceedings, or other matter perty to the purposes of the election of relating to commissions of bankrupt, to be members to serve in Parliament. By § 1, entered of record by a proper person to be this is declared to be unlawful; and all appointed by the Lord Chancellor for that bonds or judgments given for securing the purpose, or by his deputy: but the Act payment of such expenses shall be utterly contains no sufficient provision for making void. By § 2, all gifts or payments made such depositions or office copies of the re- for the purpose of inducing any person to cord thereof evidence. And by the, 1 & 2 exert himself in elections at a future time, W. 4, c. 56. § 13, every fiat of bankrupt are to be considered as within the Act. By cy prosecuted in the Court of Bankruptcy, § 3, all dispositions of real property for the shall be filed and entered of record, but no purpose of satisfying or securing any such provision is made for entering of record in expenses, are also declared to be void. the Court, fiats prosecuted elsewhere, and By § 4, all votes and bye-laws contrary to the depositions and proceedings under such this Act are declared to be void. By § 5. fiats, or for the proof thereof. For the corporation officers or others making any remedy of these evils, and because it is ex-payments contrary to the Act,. are to make pedient that the record of all matters in good the amount or value so. misapplied bankruptcy should be under the same cus- In order to frustrate any fraudulent contody, it is enacted that the records of all cealment, corporators are empowered to commissions of bankrupt, and all proceed-bring actions or suits, in the name of the ings under the same, shall be removed into the Court of Bankruptcy, to be there kept in such place, and by such person, as the Judges thereof shall appoint, such persons being for the present the persons heretofore appointed by the Lord Chancellor to enter such proceedings of record (§ 1). Matters enrolled before September 1825, are to be deemed to be, effectually entered of record (2,); and a certificate of such entry is to have the same effect as if the commission had been issued before September 1825. (§ 3:) Any one of the Judges of the Court of Bankruptcy may order commissions to be entered of record by the proper officer (§. 4.); and all fiats of bankruptcy and adjudications, appointments of assignees, and certificates of conformity, shall be also entered of record (§ 5.): and the fees for the entry are settled by §, 6. No fiat, whether a Printed 2 Monthly Record, 406. corporation (§ 6). Lastly, it is declared that any member of a corporation who shall offend against this Act shall be guilty of a misdemeanor (§ 7). This Act may be considered rather as a declaratory Act of what the law is on the subject, than an Act introducing any change in the law; ber cause it is pretty clear that a corporation had no common law right to apply the cor porate funds for the purpose of securing the return of members. INSOLVENT DEBTORS. A slight alteration has also been made in the law respecting Insolvent Debtors, by the 2 W. 4, c. 44, which continues the former Acts (7 G. 4, c, 57, and 1 W. 4, c. 38), until the 1st of June, 1835. a Printed 2 Monthly, Record, 295. 152 Review: Atkinson on Marketable Titles. By the 7 G. 4, c. 57. § 19, every con- 1. In that case Lord Nottingham called in to veyance and assignment by the provisi- his assistance the Lord Chief Justice Pemberonal assignee, to the assignees of the in-ton, Lord Chief Justice North, and the Lord solvent, and also a counterpart of every their opinion clearly against that of the Lord Chief Baron Montague, all of whom delivered such conveyance and assignment, were re-Chancellor; but he nevertheless decided on quired to be filed of record in the Insolvent his own opinion. The manner in which, in Debtors' Court: but by 2 W. 4, § 44, as- this most eloquent judgment, his Lordship resignees are no longer required to execute fers to this point, is very beautiful :- What such counterpart, but in lieu thereof the hath been said here at the bench on both sides, provisional assignee shall execute every such has been taken in short-hand, and made public. I know the counsel on both sides hath seen it, conveyance and assignment in duplicate, and one part shall be filed of record in the said Court, and a copy of such record shall be evidence. By § 3. it is also enacted, that the commissioners for the purposes of the Insolvent Act may be appointed as well for London and Southwark and the counties of Middlesex and Surrey, as for parts of the country. REVIEW. any other An Essay on Marketable Titles. By S. Atkinson, Esq. of Lincoln's Inn, Barrister at Law. Sweet, and Stevens and or will see and look into it well; and if they can give me any reasonable satisfaction that I am in the wrong, I shall easily recede from it; but for anything yet offered, I am of the same mind I was. As to the learned Judges that assisted me at the hearing, the decree is mine, and the oath that decrce is made upon is mine: theirs is but learned advice and opinion. And therefore, if they can satisfy my conscience that they are in the right, and I not, well and good; if not, I must abide by that decree I have made according to my conscience.' (Ibid. 39.) And again, on a subsequent day,—' In truth, I am not in love with my own opinion, and I have not taken all this time to consider of it, but with very great willingness to change it, if it were possible. I have as fair and as inclinations (if it be lawful for a Judge to say justifiable an opportunity to follow my own he has any) as I could desire; for I cannot concur with the three Chief Judges, and make a decree that would be unexceptionable. But I must be saved by my own We should have thought that Sir Edward it is my decree. Sugden's work on Vendors and Purchasers faith, and must not decree against my own conscience and reason.' (Ibid. 47.) And finally, would have superseded the necessity of this after having, by the most conclusive series of work of Mr. Atkinson, as in fact it is a arguments, delivered with the greatest consimere amplification-we will not say dilu-deration, and at long intervals, satisfied himtion-of some chapters of that popular self that the settlement which it was the object treatise. The recent cases and statutes on of that suit to set aside, was 'good both in law the subject, however, are fully given, and and equity,' he concluded thus ;- If I could the whole performance is creditable to the alter my opinion, I would not be ashamed to retract it; for I am as other men are, and have author, although we think, to use a phrase my partialities, as other men have. When all more generally appropriated to romances,- this is done, I am at the bar desired to consithe interest is somewhat spun out. Weder further of this case. I would do so, if I prefer extracting a note relating to the right of a Court of Equity to direct a case or an action to a Court of Law, as condensing the information supplied by the author, Sons. 1833. more than in the text. "The state of the law on this subject is singular: It seems the Court has no authority to direct a case without the consent of the parties; and if such a case be directed, neither the Chancellor (Prebble v. Boghurst, 1 Swan. 320) nor the parties to the suit, are bound by the certificate which may be returned. Sharp v. Adcock, 4 Russ. 375. Though the Chancel lor has no authority to direct a case without consent, for the purpose of informing his conscience, he has power to call in the Judges to give him their opinion as assessors; but what they say is merely opinion and advice, and no way binding upon him. This is well illustrated in the case of The Duke of Norfolk, 3 Ch. Ca. could justify it; but expedition is as much the right of the subject as justice, and I am bound by Magna Charta "Nulli negari, nulli deferre justitiam." I have taken as much pains and time as I could, to be informed. I cannot help it if wiser men than I be of another opinion; but every man must be saved by his own faith, and I must discharge my own conscience. (Ibid. 52.) In Wykham v. Wykham, 18 Ves. 395, the Court of King's Bench, in a case sent for its opinion, certified that certain parties took an estate in fee: the Court of Common Pleas, on the same subject, certified that they took nothing: Lord Eldon differed from them both, and decreed accordingly. In Lansdowne v. Lansdowne, 2 Bligh, 86, Lord Eldon, adverting to a statement, that the Lord Chancellor of Ireland, after the return of the certificate from the Common Pleas, retained an opinion contrary to that certificate, Reeview: Atkinson on Marketable Titles.—Selections from Correspondence, No. XV. 153 ton, Coop. 96; Whalley v. Whalley, 3 Bligh, 1; Trimlestown v. Lloyd, 1 Bligh, N. S. 427; Powell v. Sonnet, ibid. 545; Burnard v. Nerot, 2 Bligh, N. S. 215; and see the references in 8 Bro. P. C. (Index), titles " 'Issue" and "Trial (New).” but made a decree according to it, from deference to the judges of the Common Pleas, observes ; "In that, surely, there must be some mistake; for, although it is highly useful in legal questions, to resort to the assistance of courts of law; yet it must be well known by those experienced in the practice of courts of equity, that they are not bound to adopt the opinion of the courts of law to which they send for advice. It has occurred to me," said his Lordship, (adverting, probably to Wyk-nor will they answer a case on a limitation of ham v. Wykham, just cited;) "to send the cause successively to the Court of King's Bench and Common Pleas; and not to adopt the opinion, (though highly to be respected) of either of those Courts." "The application for the new trial of an issue must be made to the judge, by whom the issue was directed; Lord Lyndhurst's Orders in Chancery, No. 47. The party applying for new trial, must, on an ex parte application, satisfy the judge that there is reasonable ground for questioning the verdict, before he will send to the judge who tried the issue, for his notes of the trial. Morris v. Davies, 3 Russ. 318. Where, on the trial of an issue out of Chancery, it is ordered, that a third party should be at liberty to attend the trial, the counsel for such party will not be permitted to call witnesses or address the jury; on the principle, that if the Court which decreed the issue had intended to allow him this privilege, he would have been made a party to the issue. If he were allowed to address the Court, there appears to be no reason why he should not also be allowed to call witnesses; and if so, then a ease might be presented to the Court wholly different from that in contest between the plaintiff and defendant; and by consequence, a different issue raised from that intended to be raised by the order. On this ground, such a party is allowed only to cross-examine, and submit points of law. on "The grounds on which Courts of Equity grant new trials, essentially differ from those on which Courts of Common Law proceed. In Savage v. Carroll, 2 Ball & Beat. 445, a motion for a new trial, on the ground that the verdict had not been supported by evidence, Lord Manners laid it down, that "to enable the Court to disturb the verdict, it must be either contrary to the evidence, or given under the misdirection of the Judge." This is a very narrow and imperfect, not to say very erroneous, statement of the grounds on which Courts of Equity grant new trials. The true question is, whether the Lord Chancellor, looking to all the proceedings, both in equity and at law, be satisfied; for if he be satisfied, he will not direct a new trial merely because the Judge who tried the issue miscarried in his direction, or evidence was rejected which ought to have been admitted, or vice versa. The leading cases are, Stace v. Mabbot, 2 Ves. sen. 552; Matthews v. Warner, 4 Ves. 186; O'Connor v. Cooke, 8 Ves. 535; Wurden of St. Paul's v. Morris, 9 Ves. 145; Pemberton v. Pemberton, 11 Ves. 50; Ib. 13 Ves. 289; Hampson v. Hampson, 3 Ves. & Bea. 41; Ex parte Kensing Courts of common law will not answer a case stated as a trust; the question must be raised as on a legal estate; Parsons v. Parsons, 5 Ves. 581; Bailey v. Morris, 4 Ves. 793; money; but it may be stated as a limitation of a term of years, Doe v. Brabant, 4 T. R. 710; nor will they answer speculative or hypotheti cal questions; the case must state an actual conveyance, that will raise the question, Bliss, v. Collins, 1 Jac. & W. 427; and this, says Lord Eldon, is included in the usual direction in the order, that all facts necessary to bring the matter into question are to be stated. (Ibid). The case ought properly to be signed by counsel on both sides; but if the counsel on either side will not sign it, the course is, that they are understood to waive the benefit of it (Ibid). SELECTIONS FROM CORRESPONDENCE. We have been prevented for some time from We should, of course, prefer to occupy the attention of our readers, by the most important matters; yet it is a duty which we cheerfully perform, whenever we can be useful, to promote improvements of comparatively an insignificant extent. 154 Selections from Correspondence, No. XV. at the apparent want of sympathy, not to say has already been taken up by some of your corcourtesy, that subsists between the solicitor respondents, whose communications you inand the clerk in the cases to which he alludes. serted in your former numbers, that the Law It cannot be supposed that no difference Society would have promulgated, or at all events should be made between the articled clerk, recommended the adoption of a rule to that and one who is compensated for his services; effect. A PRACTITIONER. or that a youth of good education should be made the mere automaton of him under whom he is studying. COSTUME OF SOLICITORS IN COURT. To the Editor of the Legal Observer. Sir, That a sufficient part of the day should be appropriated for the performance of the "office duties," there can be no question; for without practice, theory would be "found wanting," but at the same time, it seems to me, that such arrangement must be left en-me, that solicitors have not taken steps to tirely to the solicitor himself. Although in an office transacting a very excellent business, it is not deemed necessary For me, or the other articled clerk, to attend there daily more than seven hours at the most, unless business presses; the evenings of course being devoted exclusively to reading. It must be admitted, that the labor of copying is highly necessary, and in moderation not to be objected to; but when required in large quantities, it defeats its own end. We must bear in mind, that "fame is the spur, the clear spirit doth raise;" and it would be very difficult to persuade a youth fresh from Homer, that copying bills in Chancery, and other things equally lengthy, from day to day, was the sure road to the woolsack. It may be said to depend upon the manner in which the clerk conducts himself while under articles, whether he make his "labor ipse voluptas," or not; but it may be found convenient to save a copying clerk in the person of the articled. A. F. G. To the Editor of the Legal Observer. Having given the letter of your correspondent, an articled clerk, full consideration, and looking at his remarks in a general point of view, it does appear to me his complaint is by no means well-founded, because, taking into consideration the age, the temptations to which youth is exposed when unrestrained, and the valuable time they would lose in qualifying themselves to become efficient members of the profession at the end of their clerkship, by devoting even two hours in the evening to other and more agreeable avocations,these are of themselves quite sufficient to shew the indulgence in nine instances out of ten would prove most pernicious to that class of persons. Upon a general principle, however, I certainly think those persons who are of more mature age, I mean managing clerks, or such as are employed in a more ostensible manner, ought not to be required to attend office after seven o'clock; and as many there are, who do not dine until four, or perhaps five, they should not be required to return again that evening, at least during the long vacation; and I was in hopes, from the manner in which the subject It has often been matter of surprise to resume their professional costume in the Courts. Gowns are still worn by proctors, and by our brethren in Ireland; but the only occasion on which an English attorney appears in professional costume, is on his ad mission in the Court of Common Pleas, and then a wretched substitute for a gown is let to him, for a consideration, by the usher. A bench is set apart for attorneys and solicitors in the different Courts; but for the want of an outward and visible sign of those entitled to the use of it, it is more frequently than otherwise occu pied by strangers and time-killers, to the great inconvenience of practitioners. A distinction also should be made between the real and the pretended attorney and solicitor. There are enough of disreputable practitioners on the rolls, but there are far more who assume and degrade the character of professional men, without a title to it. I think a gown would, in some degree, operate as a cure for this evil. Should you think the subject worth inserting in your journal, it may induce some corre spondent to take up the further consideration of the matter. WILHELM. PRETENDED ATTORNEYS. To the Editor of the Legal Observer. Your correspondent “VINDEX,” (whose letter you inserted some time ago,) is entitled to the thanks of the profession for his exposure of the nuisance which is everywhere shewing itself, of unqualified persons performing the responsible duties of the regular practitioner, producing thereby a threefold injury; viz., fraud upon the latter, loss and injury to the eredulous employer, and discredit upon the profession generally. To the list of the "selfcreated," given by your correspondent, I take leave to add another class of persons. It was but recently that I detected an instance of a city law stationer having prepared a deed of copartnership and an annuity bond, which, in the course of practice, were submitted for my inspection; the former had been left unattested, and this led to the detection; I naturally felt indignant, and in prosecuting my inquiries, obtained possession of the bill and receipt for the charge; here he very cunningly evaded the admission of drawing, by modestly charging Selections from Correspondence.-Disputed Decisions. 155 for ingrossing only, after the rate of eighteen | a sufficient number of instances to induce me, pence per folio. I threatened, and had po- as far as my limited means of judging extend, sitively determined to report the whole case to to acquit the Commissioners of the imputation the Law Society; but an old friend interposed as cast on them in the above extract. suppliant. The principals in this case had no idea that the law stationer, was unqualified; but on the contrary, took it for granted that it was his business to do "law writings," as they termed it, and were greatly surprised to find how the matter really stood; I strongly suspect these things to be more frequent than the profession at large is inclined to suppose. CERTIFICATED CONVEYANCERS. Y. Conveyancing, by common law, belonged to Scriveners or notaries-people introduced into Britain by the Romans. The practice of conveying lands to uses, became general in the reign of Edward III. The idea of a use, and the rules by which it was first regulated, are now generally admitted to have been borrowed from the Civil Law. Uses were devisable, though lands at the time were not. As an anonymous communication in such a case as this is of no value, I subscribe my name; but in strict confidence that you will not publish it. Yours, very obediently, LAWYERS IN PARLIAMENT. D. To the Editor of the Legal Observer. Will you allow me to correct an error, into which you have fallen, in your last number, when you state Mr. Romilly was returned for Bridport, whereas, that gentleman was one of the successful candidates for Ludlow, in Herefordshire. As your publication is justly esteemed for the general veracity of its statements, I have deemed it advisable to trouble you with this note; as I should be extremely sorry to see it lose a character it has hitherto so well merited. A CONSERVAtive. [Mr. John Romilly is returned for Bridport, Mr. E. Romilly for Ludlow.-ED.] DISPUTED DECISIONS. Ancient records prove the existence of notaries under the Saxons, at the incorporation of Lincoln's Inn, at the passing of the statutes of Uses and Frauds, and finally, at the recognition of their right by statute; and some of the honor of the introduction of Uses may be attributed to them. There was a school or college of notaries among the Romans, governed by a superior officer; none were admitted but such as were of good fame, skilful In the laws, and in speaking and writing; and A cCORRESPONDENT, “ 'Studiosus,” in the last that was determined by the opinion of the col- number, p. 142, has put down among the Dislege of Tabellions. The Tabellions were em-puted Decisions, a case of Simpson's bail, which ployed about the agreements and bargains of private persons. The Scribe were appointed to dress and form the acts and judicial proceedings of the higher judges. The scriveners had formerly in England exclusive chartered rights in some towns, Lon-" don and Newcastle, for instance; but which are now lost by non-usage. The attorneys, till within the last century, did not grasp at so much; they confined their practice to suits at law, which was their proper business. See the statutes from Ewdard I.; but as members of the great law corporation, conveyancing has been held to belong incidentally to their A. B. C. business. "pos appeared in a former number, and which decided that an affidavit of justification was bad, because it merely alleged that the bail were possessed" of a certain sum, &c., instead of that they were "worth" that sum: and says that the decision appears contrary to the rule on that subject, which expressly states that each of the bail shall swear that he is possessed' of property, &c." Studiosus has evidently not looked into the point; if he had, he would have found that there was no rule requiring bail to swear that they are " sessed" of property, &c. By a rule of T. T. W. 4. R. 3, it was ordered, "that if the notice of bail should be accompanied by an affidavit, according to the form thereto subjoined, and the plaintiff excepted to such bail, he should, if such bail were allowed, pay the costs of justification." This rule was not obligatory, but optional, and might be adopted or not, as parties chose. The word "posIn reference to an extract in 5 L. O. 138, sessed," in the form of affidavit, appears to from Mr. Coventry's recent work; I beg to have been used inadvertently; for the word say, that I have not found "the Commis-"worth" was always used before. See Stesioners of Stamps invariably insist on the vens's bail, 1 Chit. Rep. 306, note (a). highest duty the case will admit," when I all doubt was removed by the late rule of have required an opinion at the Stamp Office,Hilary, 2 W. 4. reg. 1. sec. 19, which expressly On the contrary, I have known the lowest ordered that "affidavits of justification shall duty the case would admit, to be officially be deemed insufficient, unless they state that marked on the instrument presented there, in each person justifying is worth the amount COMMISSIONERS OF STAMPS. Mr. Editor, But |