Imágenes de páginas

New Statutes effecting Alterations in the Law.

311 Courts the clerk of the court, shall in every solvent Debtors, and every such County Court case of insolvency under such two first-men- aforesaid, shall, from and after the time this tioned acts be and act as the official assignee of act shall commence and take effect, have and the estate and effects of the insolvent; and that exercise, in the prosecution of such petitions in each of the said County Courts the clerk of and summonses filed and issued in such courts such court shall act as the registrars of the respectively, the like power and authority in Court of Bankruptcy have heretofore been ac- all respects under the aforesaid acts as the customed to act under any of the said acts; commissioners of Her Majesty's Court of and every such clerk shall do and perform all Bankruptcy and District Courts of Bankruptcy acts heretofore done and performed by such have heretofore had and exercised on the preregistrars or by the clerk of the Insolvent sentation of petitions of insolvent debtors, and Debtors' Court under any of the said acts; on such summonses as aforesaid, under such and every such clerk shall do and perform all acts, except as herein-after otherwise provided, such acts and duties necessary for carrying this and shall each, singly, be and form a court for act into effect as shall be ordered by any such every purpose under this or the aforesaid acts ; County Court, or by any commissioner of the and that every commissioner of the said Court said Court for the Relief of Insolvent Debtors; for the Relief of Insolvent Debtors shall henceand that the high bailiff of every such County forth, singly, be and form a court for every Court and his assistants shall be and act as a purpose under all acts now in force or which messenger of the Court of Bankruptcy and his may hereafter be in force relating to insolvent assistants have heretofore been accustomed to debtors. act under the said acts; and such high bailiff 7. Recited acts to apply to persons petitionand his assistants shall do all acts heretofore ing who have been in prison. -- And be it dedone under the said acts, and shall possess and clared and enacted, That the said tivo firstenjoy all the poivers, authorities, and privileges mentioned acts shall apply to the cases of when acting under the said acts as have been persons petitioning under the said acts, heretofore done, possessed, or enjoyed by any although they may have been already in prison messenger of the Court of Bankruptcy or his under judgment or otherwise for debt. assistants when acting under any of the said 8. If insolvent shall not have resided six acts, and shall do and perform all such acts as months, jurisdiction vested in Insolvent Court shall be ordered by any such County Court for or County Court.- Provided always, and be it the purpose of carrying this act into effect. enacted, That if any such insolvent shall not

6. Jurisdiction of Insolvent Debtors' Court have so resided for six months in any one and County Courts.--And be it enacted, That place as aforesaid, then he shall file his petition from the time this act shall commence and in the said Insolvent Debtors' Court, and the take effect the Court for the Relief of Insolvent jurisdiction aforesaid in the matter of such Debtors in England, and the commissioners insolvency shall be vested either in the Court thereof, and the judges of the County Courts for Relief of Insolvent Debtors in London, or aforesaid, shall have jurisdiction in all matters in such one of the said County Courts as the of insolvency and debt under the aforesaid said Court for the Relief of Insolvent Debtors açts in manner following; that is to say, the shall direct. said Court for the Relief of Insolvent Dehtors, 9. Petitions now pending under recited acts, and the commissioners thereof, in all cases in 8c., to be disposed of notwithstanding the which the insolvent in cases of insolvency, or passing of this act.-And be it enacted, That the defendant in the case of any summons with respect to petitions under the aforesaid issued under the aforesaid act for the better acts or either of them which are now in desecuring the payment of small debts, shall pendence, or which shall have been presented have resided for six calendar months next im- to the Court of Bankruptcy or any District mediately preceding the time of filing his Court of Bankruptcy before the time at which petition, or of the suing out of any such sum- this act shall commence and take effect, the mons aforesaid within any parish 'the distance provisions of such acts, and the jurisdiction of whereof, as measured by the nearest highway such courts and the commissioners thereof from the General Post Office in London to the under such acts, or under the rules and orders parish church of such parish, shall not exceed made in pursuance thereof, shall remain in full the distance of twenty miles, to which district force and effect notwithstanding the passing the jurisdiction of the said court and the com- of this act. missioners thereof under the aforesaid acts is 10. Jurisdiction of the Court for Relief of hereby restricted; and the said County Courts Insolvent Debtors on circuit transferred to aforesaid in all cases wherein the insolvent or County Courts.—And be it enacted, That from defendant shall have resided elsewhere, and and after the fifteenth day of September next shall have resided for six calendar months next the circuits of the commissioners of the said immediately preceding the time of filing his Court for the Relief of Insolvent Debtors shall petition, or the suing out of any summons be abolished; and that if thereafter any insolwithin the district of such County Court to vent debtor in custody in any of Her Majesty's which such insolvent shall prefer his petition, gaols situated elsewhere than within the disor to which any plaintiff may apply for any trict to which the jurisdiction of such court summons as aforesaid; and that every com- is restricted as herein-before mentioned shall missioner of the Court for the Relief of In-petition such court under any act or acts.


New Statutes effecting Alterations in the Law. relating to insolvent debtors, other than the the same be insufficient for such purpose, out two first-mentioned acts or this act, or if any of the interest and profit arising from any such prisoner shall have so petitioned prior to government securities upon which any un the passing of this act, and his petition shall claimed money produced by the estates and not have been heard, or if the same shall have effects of insolvent debtors may be invested. been heard and the consideration thereof shall

11. Recegnizances of sureties entered into have been adjourned, such court or some com- under 18 2 Vict., c. 110, for enforcing almissioner thereof shall forthwith, after the tendance of insolvents, to bind persons to apschedule of such prisoner shall have been duly pear before county courts.-And whereas in filed in the case of any new petition, and at pursuance of an act passed in the 1 & 2 Vict., any time which to such court or commissioner'c. 110, intituled, “ An Act for abolishing Arshall seem fit in the case of any petition which rest on Mesne Process in Civil Actions except shall not have come on for hearing, or the in certain Cases, for extending the Remedies hearing of which shall have been adjourned as of Creditors against the Property of Debtors, aforesaid, make an order referring such peti- and for amending the Laws for the Relief of tion for hearing to the County Court within Insolvent Debtors in England," divers perthe district of which such insolvent debtor is sons as sureties have entered into recogniin custody, and shall transmit such petition zances to the provisional assignee of the Insoland schedule to such court for hearing ac- vent Debtors' Court, with conditions that the cordingly; and that the judge of such court insolvents therein mentioned should duly apshall appoint a time and place for such pri- pear at the time and places therein mentioned, soner to be brought up before such court, and and it is necessary that some of such insolcause the usual notices to be given; and that vents should appear before the County Courts any court to which any such petition shall under this act; be it therefore enacted, That be so referred and transmitted shall have and every such recognizance shall extend to bind possess the same power and authority with the persons who may have entered into the respect to every such petition, and shall make same, in case the insolvent debtor therein all such orders, give all such directions, and mentioned shall not at the time appointed do all such matters and things requisite for in such recognizance duly appear before the the discharging or rema

manding of such prisoner, County Court to which the matter of such and otherwise respecting such prisoner, his insolvent is transferred by this act and on schedule, creditors, and assignees, as the said every adjourned hearing, or shall not abide by Court for the Relief of Insolvent Debtors or the final judgment of such court. any commissioner thereof might make, give, 12. Fees in Insolvent Debtors' Court to go or do in the matters of petitions heard before in reduction of certain compensations to its such court or commissioner under such acts; officers. And whereas in consequence of late and that every such petition and schedule, and alterations in the laws of imprisonment for all judgments

, rules, orders, directions, and debt certain compensations have become pay, proceedings pronounced, made, and done able and are paid by the commissioners of thereon in all and every the matters aforesaid her Majesty's treasury to the officers of the by such County Court, shall be returned to court for the relief of insolvent debtors in the said Court for the Relief of Insolvent respect of the diminution of fees received Debtors, signed by the judge of such County therein: And whereas by the additional busiCourt, to be a record of the said Court for the 'ness given to the said court by this act the Relief of Insolvent Debtors, and to be kept as fees payable therein will again be increased, such among the records thereof; and the said whereby a less sum will be required for the Court for the Relief of Insolvent Debtors, and said compensations ; be it enacted, That the every commissioner thereof, in every case in fees to be received in the said court in matters which any insolvent debtor petitioning the where jurisdiction is given by this act shall Court for the Relief of Insolvent Debtors be received by the same persons, to be by under such acts shall be in custody in any of them applied in the same manner as the fees Her Majesty's gaols within the district to received in matters heretofore under the juriswhich the jurisdiction of such court is limited diction of the said court are now applied, any aforesaid, and the County Courts in the matter thing herein to the contrary notwithstanding : of every such petition so referred and trans- Provided always, that it shall be lawful for the mitted for hearing as aforesaid, shall have commissioners of her Majesty's treasury for power to issue a warrant or order, directed to the time being, or any three of them, and the governor, keeper, or gaoler, of any gaol, they are hereby empowered, to give such didirecting him to bring the insolvent before the rections as they shall think proper in regard County Court on the day appointed for the to the compensation allowances now payable hearing of his petition, or at any adjourned to the officers and clerks of the court for the sitting held in the matter of this petition, and relief of insolvent debtors in England, under every such governor, keeper, or gaoler shall the provisions of the said recited act passed obey such warrant; and every such court may in the eighth year of the reign of her Majesty, order the expense attending the bringing up in consequence of the fees to be received by of every such insolvent to be paid by the pro- them being again increased by the operation visional assignee out of the estate and effects of this act. of such insolvent, or if there be no estate, or 13. Power to Secretary of State to order

New Statutes effecting Alterations in the Law.

313 what fees are to be paid to officers under 9 8. | same,) such sum of money for travelling and 10 Vict., c. 95, and this Act. Until such order other expenses as the Lord Chancellor shall made clerks and bailiffs to receive all fees as deem fit. heretofore. And be it enacted, that it shall 16. Forms may be altered.--And be it enbe lawful for one of her Majesty's principal acted, That the forms given in the schedules secretaries of state, with the consent of the to any of the said acts, or any forms heretocommissioners of her Majesty's treasury, from fore used under the said acts, may be altered time to time to order what fées shall be paid so far as to adapt them to the change of jurisand received by the several officers or other- diction by this act directed. wise under and by virtue of the said recited 17. Vacancies not to be filled up till after the act passed in 9 & 10 Vict., c. 95, and the termination of the next session of purliament.amount of such fees respectively; and that And be it enacted, That the office of the first until such order shall be made the clerks of one of the commissioners of the Court for Relief the several County Courts shall have and of Insolvent Debtors, and of the first two of receive for their own use all fees which have the commissioners of the Court of Bankheretofore been taken under any of the afore ruptcy in London, which shall become vacant said acts by any officer of the Court of Bank- after the passing of this act, shall not be filled ruptcy, or by any officer or other person of or up until after the termination of the session of connected with the court for the relief of parliament next after such vacancies shall have insolvent debtors, except as hereinafter men- occurred. tioned, for business which is by this act trans- 18. Judges of County Courts incapable of ferred to the County Courts; and that the being members of parliament. And be it enseveral high bailiff's acting as messengers acted, That no judge of any County Court under this act as aforesaid shall have and who has been appointed or who shall herereceive for their own use all fees which have after be appointed to that office under or by heretofore been paid to the messengers of the virtue of the hereinbefore recited act passed Court of Bankruptcy when doing the business in 9 & 10 Vict., intituled, “An Act for the by this act directed to be done by such more easy Recovery of Small Debts and De-. bailiffs.

mands in England,'' shall, during his continu14. Lord Chancellor may give directions for ance in such office, be capable of being elected sittings of Court of Bankruptcy elsewhere than or of sitting as a member of the House of in London.—And whereas it may be expedient Cominons. that the Court of Bankruptcy in London 19. Interpretation of " Lord Chancellor.should hold sittings in matters of bankruptcy And be it enacted, That the words “ Lord at some place or places within the district Chancellor” shall in the construction of this over which the jurisdiction of such court ex- act be interpreted to mean also and include tends, at which such court hath not hitherto the lord keeper and lords commissioners for been used to sit ; be it declared and enacted, the custody of the great seal of the united That it shall be lawful for the Lord Chan- kingdom for the time being: cellor, at any time or times whenever it shall 20. Commencement of this act.-And be it appear to him to be expedient, by any order enacted, That this act shall commence and or orders to give the necessary directions in take effect from the 15th of September, 1847. that behalf, ordering any commissioner, re- 21. Act may be amended, &c.—And be it gistrar, official assignee, messenger, or usher enacted, That this act may be amended or of the Court of Bankruptcy in London to sit repealed by any act to be passed in this sesand attend and act in the prosecution of any sion of parliament. fiat in bankruptcy at any place elsewhere within such district than in the city of London; and every commissioner, registrar, official assignee, messenger, and usher so sitting,

10 & 11 Vict. c. 33. attending, and acting shall have the like An Act to amend the Law relating to the Re. power, jurisdiction, and authority as if sitting, attending, and acting in the prosecution of

moval of poor Persons from England and such fiat in London.

Scotland. [21st June, 1847.] 15. Lord Chancellor may order payment of 1. 8 & 9 Vict. c. 117; 8 & 9 Vict. c. 83, s. travelling and other expenses. And be it en- 77. Guardians, &-c., in England may take peracted, That any commissioner or registrar so sons remorable therefronı under the first-recited sitting and acting shall have paid to him, in act before tuo justices without summons, 8-c.addition to his salary, by the governor and Whereas an act was passed in the 8 & 9 Vict. company of the bank of England, by virtue c. 117, for the removal from England of poor of any order or orders of the Lord Chancellor persons who, though born in Scotland, Ireto be made from time to time for that purpose, land, or the islands of Man, Scilly, Jersey, or out of the interest and dividends that have Guernsey, and not settled in England, are arisen or may arise from the securities now or chargeable to some parish in England; and by hereafter to be placed in the Bank of England another act passed in the same year provision to an account there, entitled “ The Bank- was made for the removal from Scotland of ruptcy Fund Account,” (but subject and with poor persons who, though born in England, out prejudice to any prior charges on the Ireland, or the Isle of Man, and not settled in


314 New Statutes. -Review": Mitford's Treatise on Pleadings in Chancery..:] Scotland, receive relief from some parish or NOTICES OF NEW BOOKS. combination in Scotland: And whereas it is expedient that certain provisions of the said acts should be amended: Be it enacted by the A Treatise on the Pleadings in suits in the Queen's most excellent Majesty, by and with Court of Chancery, by English Bill. By the advice and consent of the Lords spiritual JOHN MITFORD, Esq., (the late Lord and temporal, and Commons, in this present Redesdale.) The Fifth Edition, comparliament assembled, and by the authority of

prising a large body of additional Notes. the same, That it shall be lawful for any guar

By Josiah W. Smith, B.C.L., of Lindian, relieving officer, or overseer of any parish or union in England to take and convey before

coln's Inn, Esq., Barrister-at-Law, Editor two justices of the peace, without summons or

of Fearne's Contingent Remainders, and warrant, every poor person who shall become Author of a Treatise on Esecutory Inchargeable to any parish in England, and who terests. London : V. & R. Stevens and he may have reason to believe is liable to be G. Norton. 1847. Pp. liv. and 477. removed from England under the first-recited act; and the justices before whom any such

Lord Redesdale's Treatise on Equity person shall be so brought shall hear and ex- Pleadings was characterized by Lord Eldon amine and proceed in the same manner in all as "a wonderful effort to collect what is to respects as if such person had been brought be deduced from authorities, speaking so before them under and in the manner directed little . what is clear.” 9 Ves. 54.

Sir by that act.

Thomas Plumer followed this high autho2. Inspectors of the poor in Scotland to take persons removable therefrom under secondly-rity by remarking, that the bock * has ever recited act before sheriff or two justices, without since been received by the whole profession previous complaint, &c.—That it shall be law- as an authoritative standard and guide.” ful for any inspector of the poor, or other officer 2 Jac. & W. 152. appointed by the parochial board of any parish The learned author edited three editions or combination in Scotland, to take and convey himself, in the last of which he observed, before the sheriff or any tivo justices of the that the materials from which the first peace of the county in which the parish or com. bination for which such inspector or officer edition was compiled were not very anple acts, or any portion thereof is situated, without or satisfactory, consisting principally of previous complaint or warrant in that behalf, mere books of practice, or reports of cases, every poor person who shall be in the course generally short, and in some instances, of receiving parochial relief in any parish or manifestly incorrect and inconsistent." combination in Scotland, and who he may have The second edition appeared at the disreason to believe is liable to be removed from tance of seven years, and from that time Scotland under the secondly-recited act; and the sheriff or justices before whom any such nearly 28 years elapsed before the publicaperson shall be so brought shall make such tion of the 3rd edition. Mr. Jeremy was examination, and proceed in the same manner entrusted by Lord Redesdale with the 4th in all respects as if such person had been edition, in 1827, and in executing that brought before him or them under and in the honourable task the learned editor exmanner directed by that act.

amined the authorities cited in the last 3. Persons taking paupers before justices to edition, and added the references to new hare powers of constables.-- That every person who by this act is authorized to take and con- cases, making such remarks as were neces. vey any poor person before any sheriff or jus- sary to the introduction of matter not pretices shall, in the execution of this act, in that cisely applicable to the original text. behalf have and exercise all the rights, privi- Mr. Josiah W. Smith, the editor of the leges, powers, and immunities with which a present, being the 5th edition, lias adopted constable is by law invested.

verbatim the 4th edition, with Mr. 4. Interpretation of act:-That in the con- Jeremy's notes, which are printed in struction of this act the singular number or mas- double colums, under the text, and has culine gender sh except when the context excludes such construction, be understood to in given his own notes across the page under olude and shall be applied to several persons, the former notes. The able and elaborate matters or things, as well as to one person, note on Parties, which occupies about 40 matter, or thing, and to females as well as pages, is placed at the end of the volume. males respectively; and that the words “jus- Mr. Smith thus states the scope of his lices of the peace shall be understood to in. labours, and the plan he has adopted :clude and extend to a justice of the peace or magistrate of a county, county of a city, or “The present editor's notes comprise the county of a town, or of any city or town cor- enactments and orders, relating to the subject porate.

of equity pleading, which have been made within the period extending from the beginning lof the year 1826, which was shortly before the


Review : Mitford's Treatise on Pleadings in Suits in the Court of Chancery.

315 publication of the fourth edition, down to the addition to pleading; but Mr. Smitli's end of the year 1846, with the decisions re- notes are almost exclusively confined to ported within the same period, whether in the pleading as the proper scope of the book, octavo Reports, the Law Journal, or the Jurist, leaving to other writers the discussion of to the number of about six hundred. • The endeavour of the editor has been, to

other subjects. divest the cases of those particulars which are As an example of the work, we extract of no use to the student, and have no essential the following from the introductory chaprelevancy to the matters with reference to which ter, with some of the notes of the present such cases are consulted by the practitioner, editor :and to accomplish the difficult task of moulding the essential parts of the cases, and the “Every hill must have for its object one or reasons of the decisions, where any are ex- more of the grounds upon which the jurisdicpressed, into succint yet clearly expressed pro- tion of the court is four ded; and as that jurispositions, placita, or rules, in such a way as to diction sometimes extends to decide on the exhibit the points and principles of pleading subject, and in some cases is only ancillary to which the decisions in those cases serve to es- the decision of another court, or a future suit, tablish.

the bill may either complain of some injury “ He hopes that the notes he has added will which the person exhibiting it suffers, and pray be found to consist of a precise and perspicuous relief according to the injury; or, without enunciation of what may be relied on tis matter praying relief, inay seek a discovery of matter of actual decision. Mere dicta and opinions he necessary to support or defend another suit; has passed by, as too often tending to mislead. or, although no actual injury is suffered, it He has also for the most part abstained from may complain of a threatened wrong, and stating general propositions founded on a small stating a probable ground of possible injury, number of particular cases, as liable to the may pray the assistance of the court to enable same objection. And while he has avoided the plaintiff, or person exhibiting the bill, to giving the cases in the narrative or statement defend himself against the injury whenever it form, comprising names, dates, and other un- shall be attempted to be coinmitted. As the necessary particulars, he has still endeavoured court of chancery has general jurisdiction in 10 preserve, in the terms of the placita, the es- matters of equity not within the bounds or besential, specific features of each case, because, yond the powers of inferior jurisdictions, it if he had not, such placita would not acquaint assumes a control over those jurisdictions, by the practitioner with the degree of resemblance removing from them suits which they are inor material difference between the cases from competent to determine. To effect this, it rewhich they are derived and the cases occurring quires the party injured to institute a suit in in practice with reference to which they may be the court of chancery, the sole object of which consulted. The following quotations inay

is the removal of the former suit by means of a suffice as illustrations of the propriety of the writ called a writ of certiorari ; and the prayer course thus pursued: “That case, so far as it of the bill used for this purpose is confined to applies to the present, was a mere dictum. that object. The decision itself is not upplicable.' ----The "The bill, except it merely prays the writ of words attributed to me were not necessary for certiorari, generally requires the answer of the the purpose of the decision : and nothing except defendant, or ty complained of, upon oath. the decision is authority which binds.' b> It is An answer is thus required, in the case of a true that the dictum of Lord Cottenham is bill seeking the decree of the court on the submore generally expressed; but all dicta should ject of the complaint, with a view to obtain an be construed according to the circumstances of admission of the case made by the biil, either the case in which they are found.''_It is in aid of proof, or to supply the want of it; a very difficult to say that these particular cases discovery of the points in the plaintiff's case could have been decided otherwise than they controverted by the defendant, and of the were; but the marginal notes yo much further grounds on which they are controverted; and than the judgments.'."

a discovery of the case on which the defendant

relies, and of the manner in which he means to The original treatise comprised some of support it. If the bill seeks only the assistance the subjects of jurisdiction and practice, in of the court to protect the plaintiff against a

future injury, the answer of the defendant upon * See Sloman v. Kelly, 4 Y. & C. Eq. Ex. oath may be required to obtain an admission 172.

6 See James v. Herriot, 5 Law J.(N. S.) Ch. e It is not allowable in effect to unite in one R., 133; and compare Bedford v. Gates, 4 Y bill, a bill for relief, and a bill for discovery on & C. Eq. Ex. 21, with Kimber v. Ensworth, 1 a matter which is quite distinct froin that reHare, 293.

lief, although both be connected with the same Alderson, B., in Davies v. Quarterman, + circumstances. So that in a bill for a receiver, Y. & C. Eq. Ex. 722.

pending a litigation as to probate, a plaintiff Wigram, V. C. in Malcolm v. Scott, 3 Hare, cannot have å discovery in reference to the 63. And see Sharpe v. Taylor, 11 Sim 50; merits on that litigation. Wood v. Hitchings, and Barnard v. Laing, 6 Jur. 1050.

3 Beay. 504.

« AnteriorContinuar »