Review: Ram on Assets, &c.

which the debtor's property is assigned for the benefit of the creditors at large, and that this

REVIEW.

41

separate right is thereby suspended till the A Practical Treatise of Assets, Debts, and

Incumbrances. By James Ram, of the
Inner Temple, M.A., Barrister at Law.
London: Maxwell. pp. 645.

Mr. Ram appears to be well aware of the important functions of a Law Writer, since, that in actual practice it is often essential to as he says, common experience testifies act on the instant, and frequently a Treatise must be, and consequently is, depended on as containing a faithful statement of the law.

A summary is given by Mr. Ram of the different degrees of weight attached to ju

dicial decisions.

creditors are satisfied, or at least, placed in the situation in which they originally stood. As a general proposition, this is true; but it is not true where the party, by the act of the debtor, is prevented from taking the benefit of the deed. See how the matter stands in THE objects of this volume, as stated in the this case. The plaintiff, a creditor of the de- Author's preface, are to assist persons profendants, enters, with other creditors, into ge-viding by will for the payment of debts, neral resolutions as to the disposition of the mortgages, incumbrances, and legacies; to debtor's property. Some time after, the amount convey useful information to creditors who of the plaintiff's claim is contested, and ulti- have demands against the estate of the demately the defendants and the trustees under the deed of assignment determine, that the ceased; and to unfold the duties and replaintiff shall not stand in the character of a sponsibilities of executors, administrators, creditor at all, thereby denying him every right and trustees. with a view to which he signed the preliminary resolutions. He may therefore contend that, as far as he is concerned, the resolutions have never been carried into effect at all. I agree that the other creditors are estopped to raise a similar objection, for they have had the benefit of a dividend under the deed; but how can it operate as an estoppel to the plaintiff, who, by the trustees themselves, has been prevented from deriving any benefit under it? Besides this, the plaintiff has been put out of the resolutions, by an original act of the defendants and the trustees; for, by a letter written on the 27th of February, he is expressly told, that " Messrs. Woolner's trustees are of opinion, that after the evidence given by Mr. Loft, before the commissioners at their last meeting, they would not be justified in allowing Mr. Garrard to rank as a creditor." What is that but a consent on their part that he shall be discharged from any participation in the general resolutions? Although it is a fraud on the other creditors, if a party who has concurred in recommending a distribution of the debtor's property, refuses to come in on the same terms with the rest, it can be no fraud where he is prevented from deriving any advantage from the general distribution. Thus in Boothbey v. Sawden, 3 Camp. 175, Lord Ellenborough says, "If the plaintiffs could shew, that the defendant had refused to give them the notes, according to the terms of the agreement, they might be remitted to the terms of the original remedy; but I think that remedy is suspended by the agreement, unless an infraction of the agreement on the part of the defendant is proved by the plaintiffs." Here there has been an infraction of the terms of the agreement, by the refusal to permit the plaintiff to proceed under it. The rule, therefore, which has been obtained for a new trial, must be discharged.

The other Judges concurred.-Garrard v. Woolner, 8 Bing. 258. S. C. 6 Moo. & Pay. 327; see also Tallock v. Smith, 6 Bing. 339; Crawley v. Hillarney, 2 M. & S. 120; Ex parte Vere, Rose,[281; and Mackenzie v Mackenzie, 16 Ves. 372.

"The authority of a case often depends on the Court in which, or the learning of the Judge by whom, it was decided. A case at nisi prius carries less weight, than one decided by assembled Judges at Westminster; and it is certain that, generally speaking, a judgment by a Court in Westminster Hall yields in importance to a decision in the House of Lords. The authority of a case may, moreover, be strengthened by the circumstance, that it was determined by a strong' Court, by a Court composed of Judges of great reputation, or by, or with the concurrence, of a single Judge distinguished for his learning; and be weakened by the circumstance, that the Court were equally divided, or were not unanimous.”

Amongst the names which have attained the eminence here spoken of, our author mentions Sir M. Hale, Sir J. Holt, Lord Hardwicke, Lord Mansfield, Lord Thurlow, Lord Alvanley, and Sir V. Gibbs. We should have thought that many other names might have been classed in this catalogue; for instance, Sir W. Grant, and Lords Eldon and Ellenborough. But Mr. Ram seems to have proceeded on very lawyer-like grounds; for in support of every name, he has cited cases in which the weight of the authority has been acknowledged,

The author observes, also, that the occesion on which a case has been cited on the bench, and the manner in which it is noticed, may importantly regulate future decisions. Mr. Ram has mentioned many of

Review: Ram on Assets, &c.-Remarkable Trials, No. XVI.

CASE OF SAWNEY CUNNINGHAM FOR MURDER. 1635. CUNNINGHAM was of a respectable family, and received a good education, but falling into dissipated habits, was at length driven to great distress. In order to relieve his wants, he persuaded his wife, a young and exceedingly handsome woman, to encourage the addresses of Mr. Hamilton, a wealthy lawyer, whom she | had hitherto always repulsed. The wife reluctantly consented to her husband's plan, and made an assignation with the lover, who pro

8 2 Ld. Raym. 1148, 1150; 4 Madd. 278, mised her a purse of one hundred pounds. The

Remarkable Trials, No. XVI.

43

whereas madam had posted him, or he had discovered. These persons were half-a-dozen done it himself, in a private place in his cham-thieves, who were returning from a plunder ber at home. Hamilton seemed extraordinari- they had made of two large flitches of bacon, ly pleased at his success, and the repose he out of a cheesemonger's shop; and as they should find in indulging his passion, now his came along were talking of a vintner hard by, antagonist was out of the town, as he thought. who sold a bottle of extraordinary wine. SawIn a little time both went to Sawney's house, ney was somewhat relieved from his fears at and having entered his bed-chamber, where he hearing this conversation. He had not been at was concealed, and a good fire burning, Mr. his post long, before he had the satisfaction of Hamilton pulled out two purses of gold and seeing this company put their bacon, which was gave them to her, and then going to undress in a sack, into an empty cellar, and knock the himself, Sawney sprang out of his hiding place, master of the tavern up to let them in. The and with one stroke of a club he had in his coast being now clear, Sawney conveyed the hand, knocked Mr. Hamilton down; not con- dead lawyer into the cellar, and taking out the tented with his wife's having the two purses of purloined goods, put his uneasy cargo in the gold, he determined to have the lawyer's cloaths sack, and then marched home. Meanwhile, the too; and therefore redoubled his blows, till the thieves were carousing, little dreaming what a poor gentleman died at Mrs. Cunningham's change they should presently find in their sack. feet. Mrs. Cunningham, not dreaming her Little or no money was found amongst them, husband would have carried matters to such an and the flitches were to answer the full reckonissue, seemed frightened to the last extreme ating, so that they continued drinking till they what had been done; but Sawney endeavoured thought the bacon was become an equivalent to give her case, by telling her, that he would for the wine they had drank. One of them, adwork himself out of the scrape immediately, dressing the landlord, told him." That he and so saying hoisted the body on his shoul- must excuse him and his comrades for bringing ders, and went out at a back door which led di- no money in their pockets to defray what they rectly to Hamilton's house, which easily open-had expended, especially at such an unseasoning, and the darkness of the night favouring him, he carried the lawyer to the vault, and placed him upright on the seat, to the end that the first who found him there might conclude he had died in that place and posture.

66

able time of the night, when he had been called out of his bed to let them in; but landlord, in saying this, we have no design of doing you any wrong, or drinking your wine for nothing. For we have got two flitches of bacon in a cellar It seemed Mr. Hamilton had the day before hard by, which will more than answer our exacquainted a particular friend who lived in his penses, and if you care to have them, they are house, with his success, and how he was to at yout service"-" Gentlemen," said the vinthave a meeting with Mrs. Cunningham that ner, "if the flitches of bacon, you say you have, night. This friend rose about midnight in his are good, I'll take them off your hands, and night-gown, and stept down to the vault, where quit scores with you, so they but answer my opening the door, he spied Mr. Hamilton sit- demands." Immediately one of them said he ting, and stayed without a considerable time, would go and fetch them, and accordingly till finding his friend did not stir, he opened coming into the cellar strove to hoist the sack the door again, and taking him by the sleeve of up Zounds," says he, why, I think the his coat, was surprised to find him fall down. bacon is multiplied, or I am deceived. What a He stooped to take him up, but found him load is here to gall a man's shoulders! The dead; upon which, being in a great perplexity, vintner will have a rare bargain." And so he called to mind his acquainting him with the saying, he carried the corpse on his shoulders assignation between him and Mrs. Cunning- to the tavern. On opening the mouth of the ham; he concluded his friend had found no sack, they were surprised to see a man's head tair play there, knowing the husband to be peep out. The vintner presently knew the linenone of the easiest of men. Fearing that he aments of the deceased's face, and cried out, himself should be thought the murderer, he "Rascals, this is the body of Mr. Hamilton, took up the body upon his shoulders, and car- the lawyer, and you have murdered him." At ried it to Sawney's house-door, where he set it this all the six were in the utmost horror and down. Madam, a little after midnight, having confusion, and really appeared like the guilty occasion to go down, got out of bed, and open-persons. But the vintner, observing them ening the door, let the body of her late lover tumble into the house, which putting her into a fright she ran up stairs into the chamber, and told Sawney that the lawyer was come back. Ay, ay," says he, just waking out of his sleep, "I'll warrant he shall come back no more: I'll secure him presently;" and so saying, sprung immediately out of his bed, put on his cloaths, and hoisted the dead lawyer once more on his shoulders, with a design to carry him to the river and throw him in, but seeing some persons at a distance, coming towards him, he stepped to the side of the street till they were got by, fearing his design might be

deavouring to get away, made such a noise of murder, that immediately all the family were out of their beds, and the watch at the housedoor, to know the reason of such an alarm. The thieves were instantly conveyed to a place of durance for that night, and in the morning were sent to the main prison, when, after a little time, they took their trials, were found guilty of Mr. Hamilton's death, and executed accordingly.

Cunningham continued his ill course of life, committed many robberies and several murders, and was at length condemned, and executed at Leith, on the 12th April, 1635. When

44

The Law Commissioners. Law Clerks' Society.

he went to the place of execution, he betrayed missioners,-the division of the labourno signs of fear, nor seemed any way daunted will be entirely lost, if the same subject is at his approaching fate. As he lived, so he to be considered by all, or more than one. died, valiantly and obstinately to the last, un- There should be a greater spirit of union willing to have it said that he, whose hand had been the instrument of so many murders, among the whole body of Commissioners; proved pusillanimous at the last. they should have frequent meetings together, and the various labour should then be allotted to those best qualified to sustain it. The Commissioners would then be spared the reproach of protracting their period of office from sordid motives, and the difficulties which arise from their own conflicting opinions on the same matters would be prevented. We now see them going over the same ground, but taking different roads, and arriving at different conclusions. I am, Sir, Your obedient servant, Z.

THE LAW COMMISSIONERS.

UNITED LAW CLERKS' SOCIETY.

Sir,

My attention has been drawn to an advertisement on the cover of your last Number, which, I think, deserves the consideration of the profession; and in the hope that, through the mewith notice, I trust these few lines may find a dium of your useful miscellany, it may meet place.

A society, it seems, has been established, under the name of the "United Law Clerks' Society," and, as the advertisement concisely states, the objects are "a fund, as a provision in cases of sickness, superannuation, or death; -a casual fund, to relieve members in distress, and also Law Clerks not being members;and, lastly, to provide situations for members."

To the Editor of the Legal Observer. SIR, I see by the Appropriation Act for this year (2 & 3 W. 4. c. 126), the last, and doubtless the most agreeable act of the session, that the sum of 15,000 l. is allotted to the Common Law and Real Property Commissioners; the sum of 10,000l. to the Record Commissioners; and other sums to other Commissioners connected with the Law. Now I am perfectly willing to admit that the services of eminent professional men are absolutely necessary for the safe and effectual reform of the Law, and also that such services must be properly compensated. I do not therefore mention the sums received invidiously, nor do I think we have a right to begrudge the learned persons appointed Commissioners a proper reward for their labours. Neither will I say what often has been said, that they have done but little, while a great portion of what they have proposed remains still to be carried into law. No, Sir, my present purpose is simply to call your attention to the uselessness of allowing two sets of Commissioners to do the same work, without at To the readers of your pages, it is hardly least acting in concert. Thus we have a necessary to advert to the peculiar situation of Prescription Bill (now passed into law) an attorney's clerk. The salary he receives, proposed by the Common Law Commis- in most cases, hardly affords him more than sioners, and another Bill having the same the means of living decently, while in a state of health; and the constant and laborious apobject, but widely different in its provi-plication required, while it impairs his health, sions, brought in by the Real Property leaves him too often in a state of destitution. Commissioners. We have these last learn-The claims which our Clerks have on us, I ed Commissioners considering the state of should hope, are sufficiently felt by the whole the law affecting the Church, whilst at the profession to induce it to render assistance, same time the same subject is occupying where an opportunity presents itself of amelithe attention of the Ecclesiastical Commis-orating their condition; and the benefits likesioners. We have a long Report from the ly to result from the establishment of this society are so obvious, that I trust it is only neEcclesiastical Commissioners on the subject cessary to introduce it to the notice of the proof Wills, and in a few weeks we are to fession to insure its support. have a Report on the same subject from the Real Property Commissioners: and many other instances of the same kind might be given. Now it appears to me that the We most willingly insert this communipublic has considerable cause to complain cation, and earnestly recommend the society of this mode of conducting their business. (which we have the strongest reason for believing The great object of appointing several Com-will be well conducted,) to the liberal support

I have the honor to be, Mr. Editor,

Nov. 12, 1832.

A CONSTANT SUBSCRIBER.

Disputed Decisions, No. XII.

of all branches of the profession. The comfort of those who perform the bulk of professional labour, ought to be promoted on grounds of policy, as well as justice and humanity. Much is entrusted to this numerous body, and by increasing the respectability of its members, we secure the faithful performance of their duties. The good feeling towards them, which would be indicated by a general subscription by the Profession, we doubt not, would be met by a diligent and grateful return. We shall be glad to find room occasionally for the advertisements of the Society, on payment of the duty only. ED.]

DISPUTED DECISIONS.

No. XII.

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that it operated in its creation only by estoppel, which the estate he afterwards took would feed, as long as it rightfully might, i. e. during his life and no longer, but said, "that the plaintiff was not at liberty to insist upon this point, he being a privy to the cognizor as heir in tail, and therefore precluded from saying that the parties to the fine had nothing in the land at the time it was levied." Adding, that by the 27 Ed. 1, c. 1, the parties to a fine, and their heirs, were prohibited from avoiding it, by pleading that before and at the time of the fine, and afterwards, the demandants or their ancestors were always seised; and in the case of Fines, 3 Co. 89 a, the effect of this provision is stated to have been to take away from the issue in tail the power of averring quod partes finis nihil haburent. Excep tion (continues his Lordship) had been taken that the 27 Ed. 1 did not extend to heirs in tail, but only to heirs in fee simple; to which it was answered, that although the issue in tail was not barred by any fine by his ancestor beDoe d. Thomas v. Jones, 1 Tyrwhitt, 506. fore the 4 Hen. 7, yet he was ousted to aver in such cases quod purtes finis nihil haburent; The doctrine of warranty, described by Lord and being privy and heir to him who levied the Coke as "one of the most curious and cunning fine, was, by the 27 Ed. 1, estopped and conlearnings of the law, and of great use and conse- cluded to annihilate the fine of his ancestor quence," having long been represented by text by such plea; and although it is provided by writers to have become "a matter of specula- the stat. De Donis quod finis ipso jure sit nullus, tion rather than of use," rarely receives a due that is to say, to bar the right of the issue in share of the attention of the legal student; and tail, yet it is an estoppel to him to say quod it is to be regretted that the boasted avowal partes finis nihil haburent; and he refers to that his lordship's invaluable works will soon 22 Ed. 3, c. 17. Fitzherbert, tit. Estoppel, pl. be rendered useless, has partially had its effect 280. 33 Ed. 3, where instances of such esin generating such an indifference to his autho-toppel occurs His Lordship then referred rity, that an ignorance of his labours is (though to Zouch v. Bamfield, where it was said, that erroneously) often deemed a better qualifica-"though the stat. De Donis avoided the fine, as tion for the future practitioner, than the knowledge of "all the amiable and admirable secrets of the law," with which the institutes abound; this case, however, shews, that an acquaintance with them, so far from being a disadvantage, is still necessary to the legal professor.

WARRANTY.-DISCONTINUANCE.-ESTOPPEL.

to the foreclosing the issue in tail of his formedon, yet it remains in force to restrain the heir in tail from averring any thing against the fine, as well as the heir in fee simple; and that in all cases where he, against whom a fine is pleaded, claims by him who levied the fine, The facts were, that in 1736, the lands were he shall not have the same averment." As to settled on A. for life, remainder to B. his in- the first point, viz., "that the fine created a tended wife for life, remainder to the heirs discontinuance," the Court "cautiously abof her body by A., remainder to him in fee; stained" from acceding to it, although it gave that they had issue C., their cldest son, whose it an operation which virtually abrogated the son was the plaintiff's lessor; that B. died in provisions of the statute De Donis in favor of 1788, A. in 1802, and C. in 1822; that in 1784, the issue in tail, by holding, that "the fine C, by lease and release and fine, conveyed with the warranty took away the plaintiff's to one Price in fee, under whom the defendant right of entry:" this, it is submitted, may be claimed; but as he did not prove the procla- considered doubtful, inasmuch as C. was not mations at the trial, it was only receivable as a tenant in tail in possession, it being laid down fine at common law; and also, that the plain-in 8 Rep. 54, that an heir is not bound by a tiff, who had entered in due time, took a ver- warranty descending upon him where there is a dict, with leave for the defendant to move for right of entry; see Doe d. Jones, 1 B. & C. a nonsuit; a rule for which was obtained, on the 238. An estate being settled to the husband grounds, first, that the fine created a discon- for life, remainder to trustees to preserve continuance-secondly, that it worked an estop- tingent remainders, with remainder to him in pel-and, thirdly, that the plaintiff was bound tail; it was held, that he could not, though in by force of the warrants. After hearing coun- possession of the life estate, discontinue the sel on these points, the Lord Chief Baron said, estate tail, they being two distinct rights. the question was, "whether the fine had taken Driver v. Hussey, 1 H. B. 267, is another auaway the plaintiff's right of entry, and that the thority upon the same point. In Doe v. HurCourt was of opinion that it had." His Lord-ris, 5 M. & S. 326, it was held, that the cogniship, in his judgment, admitted that the cogni- zor, or remainder-man expectant on an estate zor had no estate when he levied the fine, and for life, not having any seisin, his fine divested