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The ILegal Observer,

DIGEST, AND

AND JOURNAL OF JURISPRUDENCE.

SATURDAY, JULY 24, 1847.

“ Quod magis ad nos
Pertinet, et nescire malum est, agitamus."

HORAT.
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LEGAL RESULTS OF THE SES- its introduction into the House of ComSION OF PARLIAMENT. mons, that until we have had an oppor

tunity of seeing it in the form in which it The session has at length terminated, obtained the Royal assent, it would be preand the Parliament is defunct. We cannot mature to enter upon a critical examinafelicitate our readers upon the passing of tion of its provisions. The scope of the a single measure connected with the law measure, however, is so narrow as to forbid which holds out any considerable prospect us to anticipate that any amendment has of benefit to the public, or even of practical been effected in the Law of Bankruptcy or improvement; but, perhaps, it is matter of Insolvency. "A change of jurisdiction is congratulation that so little has been done to the utmost that was contemplated or atunsettle, and that the spirit of change bas tempted. The trading community have passed so lightly over our legal institutions. complained, discussed, considered, and as

Many of the bills, in the progress of sociated, in order to give effect to their which the profession may be supposed to remonstrances as to the unsatisfactory state have been peculiarly interested, were of this branch of the law. Those remon-abandoned or defeated in the course of the strances have hitherto been utterly inefsession.

fectual. The Commissioners of BankThe bills placing the administration of ruptcy, who were entrusted with the admithe Poor Laws on a different footing, and nistration of the law, whilst pointing out its the Poor Amendment Act Removal Bill, imperfections, have publicly and repeatedly however, have obtained the Royal assent. deplored the harshness of its operation upon The Masters in Chancery Affidavit Office, honest insolvents, and the encouragement the House of Commons Costs' Taxation, it affords for the practice of successful and the Trustees Relief Bill have also frauds upon creditors. The evil is ad. passed. The most important, perhaps, mitted, but the session has terminated we might say the only important legal without any attempt to redress it. The measure of the session is, the Bankruptcy Insolvent Act, (5 & 6 Vict. c. 116,) reand Insolvency Bill.

quires that the commissioner shall be The government has succeeded in pass- satisfied that an insolvent's petition and ing the Bill for abolishing the Court of schedule are true, before he is authorised Review, and transferring the Insolvent to make a final order for the protection of Jurisdiction heretofore exercised by the such insolvent. The last Insolvent Act, 7 Commissioners of Bankruptcy, having per- & 8 Vict. c. 96, s. 2, prescribes a form of tinaciously refused to listen to the repre- petition, and enacts, that if such 'petition sentations made by independent mem- shall not be in the form therein prescribed, bers, at all sides of the house, as to the ex- “ such petition shall be dismissed.”. No pediency of postponing the measure until power is given to the court in which the the next session. So many changes and petition is filed to amend it under any ciralterations have been made in the bill since cumstances. Many hundreds of petitions

VOL. XXXIV, No. 1,011.

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Legal Results of the Session of Parliament.- Construction of the Stamp Act. have been dismissed for defects of form. report of a case,a in which two questions One case was reported in this work,a in were decided touching the construction of which three petitions filed one after an- the Stamp Act, (55 Geo. 3, c. 184.) other by the same insolvent, were dis- The action was brought to recover the missed, upon objections to the form of the price of railway scrip, and the evidence to petition. The commissioners have re- support the plaintiff's case was, that on the peatedly expressed their regret that, 12th August, 1846, the defendant gave under such circumstances, and where no the plaintiff a verbal order, and subseobjection arose upon the merits of the case, quently, on the same day, and in respect they could not assist an insolvent, and of the same transaction, signed a memoranpermit him to amend his petition. Again, dum in the following form :-“ Bought of there is no power in any case to allow an Nathan Knight (the plaintiff) fifty shares opposing creditor his costs; and where a in the Huddersfield, Halifax, and Bradford fraudulent debtor has his conduct exposed Railway Company, at 101. per share." and investigated, it is at the expense, not This document was unstamped, and lost of the insolvent's estate, or of the general before the trial. It was proposed, howbody of creditors, but at the expense of ever, to give secondary evidence of the the particular creditor who has already, contents; but this was objected to, on the perhaps, suffered a serious pecuniary in- ground that the lost paper contained the jury at the hands of the insolvent. These only legal evidence of the contract, and obvious defects of the existing law are left ought to have been stamped. Cresswell, without any attempt at amendment. In- J., who tried the cause, thought the obstead of repealing the acts which have pro jection well-founded, and nonsuited the duced so much confusion and dissatisfac- plaintiff. tion, the great measure of the session has It was afterwards argued, that the above been, to entrust the administration of the memorandum was not an agreement relaw so universally condemned to new quiring a stamp, and that the transaction judges, with the prospect that as soon as was within the exemption in the Stamp they have mastered its provisions, and en- Act relating to "goods, wares, or merchandeavoured to put such a construction on dise.” In reference to the first point, it them as may be thought conducive to the was submitted, that nothing is liable to ends of justice, the whole system shall be stamp duty as an agreement, except that altered, and laws founded on a different which both parties reduce into writing, and principle substituted. A course of pro- that the memorandum signed by the deceeding so much opposed to the dictates of fendant was not a contract binding on both experience indicates a very remarkable in- the parties, but a mere acknowledgment sensibility to the importance of the sub- by one of them of an antecedent parol ject, and induces us to look rather with contract. apprehension than hope to the effects of a The court, however, whilst admitting measure passed under such circumstances. that a mere proposal is not within the

The Vexatious Actions Bill, referred to statute, held that this was a memorandum in a former number, and the very im- in which the defendant put down what he portant bill introduced so late in the ses- meant to be the terms of the contract, and sion as on the 8th July, by Messrs. Greene, which the plaintiff received as such. It Milner, Gibson, and Parker, for amending was evidence of the contract, and within the Acts for winding up the affairs of Joint- the words of the Stamp Act. The case of Stock Companies, have both been with. Hughes v. Buddh was referred to, where drawn, it would seem, without discussion. an agreement signed by the plaintiff only CONSTRUCTION OF THE STAMP to require a stamp.

was held to be valid as an agreement, and АСТ. .

Upon the second point it was argued,

that railway scrip was “merchandise,” as AGREEMENT FOR PURCHASE OF RAILWAY a thing accustomably merchantable in the NEWSPlenumber of the Exchequer Reports the court held, that the sale of scrip could

market, and transferred by delivery ; but published during the last week contains the not be said to be the sale of “goods, wares,

or merchandise," within the meaning of 18 Shetler, Leg. Obs., vol. 31, p. 274. Ante D. 163. For other minor bills postponed, see p. 304

Knight v. Barber, 16 Mees. & W. 66. 8 Dowl. P. C. 478.

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Construction of the Stamp Act.-Notes on Equity.

283 the .exemption in the Stamp Act. The title to the property is good, but that the value exemption was intended to protect boná is sufficient. fide mercantile transactions of the sale and In a recent case before the Master of the purchase of goods, but this was a mere Rolls, it appeared that the defendant, a soagreement between one speculator and an- licitor, applied to the plaintiff, a clergyman, other, whereby the party acquired a right and requested him to lend to John Wyn the to the allotment of certain shares to be sum of 3,0001. on mortgage of certain "lands, afterwards issued in a particular company. 3,9421. 10s. The plaintiff, who seems to have

which had recently been valued at the sum of A judicial construction had already been had entire confidence in the solicitor, agreed, put upon these contracts in the case of gave him a cheque for 3,0001., and left the Humble v. Mitchell, in which shares in a completion of the arrangement in his hands. joint-stock banking company were held not A mortgage security was forthwith executed to be within the words “ goods, wares, and by Wyn, which bore date the 27th April, 1836. merchandises," within the 17th section of

The solicitor retained it in his possession, and the Statute of Frauds, and the same con- 45 per cent., as it from time to time became

continued to pay to the plaintiff the interest at struction must prevail here. Upon these due, with one accidental omission. In Novemgrounds, the court was unanimously of ber, 1840, he refused to continue further payopinion, that the ruling of the learned ment, stating that the rents were insufficient. judge at the trial was correct.

On investigation, it turned out that the seIn the course of the argument in Knight curity was considerably deficient; that Wyn v. Barber, the definition given by the late fee-simple only in right of the life interest of

part of the property, valued at 3751., as Justice Erskine in Vaughton v. Brine,' was his wife therein ; that other part, valued at adverted to, viz., “that such agreements 5291., had been altogether omitted from the seonly required to be stamped as would be curity; that the residue was subject to a debt evidence against both the contracting of 501. and a mortgage of 2001. due to the soparties ;” but Parke, B., thought a more licitor under a deed of June, 1835. It was not correct definition was given in the case of shown that the nature of the security was made Beeching v. Westbrook, namely, “that a known to the plaintiff until the year 1839 or

1840. Wyn became insolvent, and the prowritten instrument, to come within the terms of this clause of the Stamp Act, 2,2001. This being insufficient to pay the mort

perty was bought in at a sale by auction for must have been made with the intention gage to the plaintiff, negociations took place of containing in itself the terms of an with a view to obtain payment from the soliciagreement between the parties.” This tor, which being ineffectual, this bill was filed. definition was not adverted to in the more The bill prayed a declaration that the sum of recent and somewhat celebrated case of 3,0001. advanced by the plaintiff, was improVollans v. Fletcher, in which, it may be perly invested by the defendant, the solicitor ;

and that the plaintiff was entitled to the benefit remembered, the Court of Exchequer der of the indenture of the 27th April, 1836, or to termined, that a letter of allotment of the benefit of the mortgaged premises, free shares on which the allottee afterwards from the charge thereby created. paid the deposit, was not evidence of a The Master of the Rolls, after stating the contract requiring a stamp within the case and reciting the deeds, observed,

the defendant was not agent and solicitor only, meaning of the Stamp Act.

but also trustee. He received money from the

plaintiff, without any security whatever but NOTES ON EQUITY.

the confidence which the plaintiff placed in him. It was his plain duty, in his character of

solicitor and agent only, to invest the money RESPONSIBILITY OF SOLICITORS. on proper security, and to use no fraud, misreA solicitor to whom money is entrusted by presentation, or deceit; but, having obtained

the money, he constituted himself trustee of his client for the purpose of investment on it, and must, in my opinion, be treated as mortgage, is bound to see, not only that the trustee from thc time when he obtained the

possession of it, or the power over it.

It was wholly inconsistent with his duty, c 11 Ad. & El. 205.

either as agent or as trustee, to take any d i Man. & Gr. 559; 1 Sc. N. R. 258.

security less than that on which he prevailed e 8 Mees. & W. 411.

on Mr. Craig to advance the money. See ante, p. 119. The case of Vollans v.

If, as he alleges, he did not at the time when Fletcher was cited before Wilde, C. J., in a case he produced the valuation to Mr. Craig, know of Chapman v. Hearn, on the last day of the that the life interest of Mrs. Wyn had been London sittings at nisi prius after Trinity valued as the absolute property of Mr. Wyn; Term, and the learned C. J. declined to act upon the authority of that decision.

Craig v.

8 Beav. 427.

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Notes on Equity.-Review; Crabb's Digest and Index to all the Statutes. if, as he alleges, he did not at the same time NOTICES OF NEW BOOKS. 60' know that the property not absolutely conveyed 127 singulis A-3013 huis : 151915. to Wyn, had been valued at 5297., it is perfectly clear that he knew both facts in a few 4 Digest 'und Index to all'llie' Statutes, days afterwards, and whilst the money of Mr. Part the Fourth, Bringing the Slalules Craig was in his hands or power.

When the and Decisions thercon doron to the end of deed was executed, he knew that it comprised the Last Session. To which is added ia only the life interest of Mrs. Wy'n, although the General Index \of the four parts.. By property had been valued as an absolute in

George CRABB, Esq., of the löner terest of her husband; and he knew that he had withdrawn from the security property stated in

"l'emple, " Barrisfer at-Law. * * London': the valuation to be worth 5291.; and he had A. Maxwell & Son. 1847. Pp. 487. then in his hands or power the sum of 3,0001. belonging to the plaintiff, which he parted with

Mr. CRABB bas adopted a convenient on that reduced security. In soʻacting, he was

plan of posting up the statutes with the not acting as the solicitor or agent of the plain- decisions which liave taken place on their tiff to invest the money on a given security, construction. The subjects comprised but was assuming the power and discretion io in this part of the digest are of considerinvest the money on an altered security, and able importance. Amongst them are the his conduct cannot be reconciled with the per- following: j formance of his duty, either as solicitor and

';! agent, or as trustee, and I am afraid it cannot Admiralty ; Aliens ; Auctions ; Attorneys; be attributed to mere negligence. The utmost Barristers ;; Buildings Companies ; Copyvalue was stated to be 3,9421. 10s., and when holds; Copyright Criminal Law Debtor from this the value of the property excluded is and Creditor; Evidence; Factorieș ; Lunatics; deducted, together with the difference arising Poor: Railways; Seamen; Shipping; &c. from the improper ralue of the life estate of Mrs. Wyn ; and when it is further considered Before stating the substance of the that the defendant was at the time obtaining a recent enactments on these various matters, payment for himself, or a client for whom he Mr. Crabb gives a general review of the was personal security, and mixing up the plain- previous statutes. This is a very useful tiff's money and transaction with his own method of proceeding, and the references money and transaction, there is too, much reason to think that the defendant must have to the former parts of the Digest enable had some distinct object of his own in viert. the reader to find the whole state of the

Statute Law, nor any given subject. The case appears to me to be a case of com: As an example of the work we shan bined agency and trust, and I am of opinion select the Digest relating to Barristers and that the defendant has so acted as to make Attorneys, contained in the present part himself personally answerable to the plaintiff

1st, As to barristers, Mr. Crabb sets for the whole sum advanced. ... The defendant seems to have thought he was

forth that only agent or solicitor: he says, he believes rThere are several miscellaneous provisions that the plaintiff was induced to accept the respecting barristers, as to their qualifications mortgage on seeing the valuation of Mr. Eyton, to be commissioners of inquiry respecting the and of Wiley and Ash; but he states for him- exchange and purchase of glebe lands, by the self, that he was not aware of the value of the 56 G. 3, c. 52; 1 G. 4, c. 65-6 G. 4, 4, 8; to premises, and did not consider it'to be his duty be commissioners and judges in the Court of to ascertain the actual value of the property on Bankruptcy, hy the 1, & 2 W,4, , 5,6, see Dig. which the plaintiff advanced the money; that Part 1., tit

, BARRISTERS.; to, act as revising is, in the defendant's view of his duty: he may barristers in the registration of yoters, by prevail upon his client to advance money on a 6 & 7 Vic. c. 18, reperling and amending ? & representation communicated by the defendant 2 W. 4, c. 45, ib. Part II. tit. PARLIAMENT, himself, without any knowledge of its truth. “ The duty on the admission of a barrister He further states, that he does not beliere that is fixed by the 55 G. 3, c. 184, Sched. Part, I. the plaintiff relied on any thing said by him as "The 3 E. 1, c. 29, subjects a serjeant pleato the value, but made inquiries in various sier or other to imprisoninent for a year and a quarters of the value of the security, but he has day for deceit, and never after to be heard to produced no evidence whatever in support of plead; the 13 E. 1, C, 49, prohibits the king's this allegrtion:" His lordshuip directed that an counsel froin receiving any land that is in plea account of what was due to the plaintiff should before, H. M.; arid by the 2 & 3 W. 4; C: 45, be taken, and the estate sold, the purchase- s. 52, a barrister is not to attend in a revising money of which was to be applied to payment, barrister's court; but by the 7 W. 4, and I V. and the defendant was to be held personally c. 114, any person charged with a felony may responsible for the deficiency and for the costs be achinitted to make defence by counset , so bf the suit,

by 8 & 9 V. ca. 10, in proceedings in bastardy, parties may be assisted by counsel; the 6 G. 3, C. 53, superseding prior statutes, regulates

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Review ! Crabb's Digest and Index to all the Statutes.

285 what battis are t6 be taken by barristers in Geo. 4, c. 8, as to barristers of three years general; and the 10. G. 4, c. 7, regulates what standing, appointed as commissioners for the are to be taken by Roman Catholics. By the exchange or purchase of lands,

st 2 submitted to a barris

institution of any . 1, c. 29as to deceit

*7 W, 4, and 1 Vict. c. 114, authorizing deter; and the 10 G. 4, č. 56, 'amended by 4 & 5 fence by counsel. W.4, c. 40, contains a similar provision for 13 Ed.'1, c. 49, as to King's or Queen's friendly societies, ib. Part 1 , tit. BÁRRISTERS, Counsel. BANKS (SAVINGS), FRIENDLY Societies, and Roman Catholics; also post, tit. Bas-2nd, As to attorneys and solicitors, the

learned author says that illey have been "By the 5 & 6 W. 4, c. 76, the Municipal the subject of many statutes, several of Corporations Act, and the 5 & 6. V. c. 98, to which are now repealed and their proamend the law concerning prisons, barristers

visions consolidated in the General Act, are appointed to arbitrate in

n cases of difference

6.& 7 Vict. c. 73, for which he refers to accounts; and the 7 & 8V. concerning certain c.'93, extends the provisions of these tu

two acts,

the 3rd part of the Digest; title “Sosee InPRA."

II) until I licitors."?, ?, Cooli 7:30 do 12.13-B *., : 7 & 8V. 93.110 "Enabling Barristers" apo 100

Attornies and solicitors have been the subpointed to arbitrate between Counties and

ject of many statutes, several of which are now Boroughs to submit a Special Case to the Su-repealed and their provisions consolidated in perior Courts. 108,111,334 *** Sect. 1.–After’reciting the 5 & 6'W. 4, d. Part, III., tit. Solicitors. Among the statutes

a the General Act, 6 & 7, V., e 73, see Dig. in which a barrister has been or hereafter shall or particular enactments which remain in force,

are such as relate to making attornies or apbe named as in the recited acts, to arbitrate between the parties, he shall, upon the requisition making suits to several courts ; 6 E. 1, c. 8, in

pearing by attorney, as the 20 H. 3, c. 10, for in writing of the treasurer of the county, or of pleas of trespass ; 13 E. 1, St. 1, c. 10, for the visiting justices of the prison, or of the town making general attornies ; 13 E. 1, St. 1, c. 15; clerk of the borough, on behalf of the council for infant eloignes suing by prochein amy: 7 of the borough, who shall be interested in the R. 2, c. 14, for persons sued upon wiits of decision of such borough, be empowered, if he think fit, before making his award, to state one H. M.'s licence; 7 H. 4, c. 13, for impotent

præmunire who are departing the realm with or more special cases touching any of the matters referred to him for the opinion of such persons on reversal of outlawries ; 15 H. 6, C. one of the superior courts of common law at formers who may sue by attorney ; 29 El., c. 5,

15, for religious persons; 18 El., c. 5, for inWestminster as he shall direct, or to raise in s. 21, for defendants in penal actions; 11 G. 4, any award to be made by him at any time any and I W, 4, c. 65, for persons under disaquestions for the opinion of such court ; and bilities ; 7 W.4, and 1 V., c. 114, for persons such court shall hear and determine the matter tried on any charge of felony. See further, according to the practice of the court upon Dig. ATTORNIES AND Solicitors, Parts I., special cases, and make such order as to the 11., Solicitors, III. costs, and by and to whom and in what manner the same shall he paid or borne, as to such as the 3 E. 1, cc, 25, 28; 13 E. 1, c. 49; 1 E. 3,

"Attornies are prohibited by several statutes, court shall seem meet; and the decision of the St. 2, c. 14; 7 R. 2, c. 15; 5 El., f. 9, from court shall be binding on such barrister in maintaining suits unlawfully, see Dig. Part I.; making his award.

tit, CHAMPERTY and MANTENANCE. The 3 “Sect. 2.-In case any barrister so named E. 1, c. 29, inflicts a penalty on a serjeant or dies or refuses to act, or is disabled from act- pleader committing deceit; the 7 A., C. 12, s. ing either from ceasing to practise as a barrister, 4, declares that an attorney, suing out process or for any other reason, before making his award, the several parties before mentioned violator of the law of nations, and may be

against an ambassador, shall be deemed a may name another barrister for the like pur, punished as the Lord Chancellor thinks fit, see poses, and the barrister so newly named shall Dig. Part I., tit. AMBASSADOR; the Annuity have the same authority to decide the matter Aci, 53 G. 3, c. 141, probibits solicitors from in difference as if no other appointment had taking more than 108. in the 100l, for brokerbeen made; and in every such case, in which,

age, ib. tit. ANNUITIES. Einbezzlements by before the passing of this act, a second barrister attornies are now made punishable by the 7 & 8 has been appointed to determine matters left G. 4, c. 29, ib, tit. LaRCENY; the 52 G. 3, c. unsettled or undetermined by the barrister first 63, on the same subject, which is included in appointed for that purpose, the appointment of the saving clause of 6 & 7 V., c. 63, Sched. 1., such barrister shall be deemed good.”

Part II., was already repealed by the 7 & 8 G. The 1st Part (p. 188,) contains re- 4, c. 27, ib. Part I., tit. Larceny.

The Uniferences to the following statutes, regard-formity of Process Act, the 2 & 3 W. 4, c. 39, ing the offices conferred on barristers :

provides, among other things, that the name of

the attorney or party suing, and his place of “2 & 3 W.4, c. 45, as to revising barristers. abode, shall be indorsed upon the writ of capias, “56 Geo. 3, c. 52; 1 Geo. 4, c. 6, and 6 and if it be not issued by the attorney's au

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