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The Legal Observer, DIGEST, AND
AND JOURNAL OF JURISPRUDENCE,
SATURDAY, MAY 1, 1847.
-“ Quod magis ad nos
THE AMENDED BANKRUPTCY proposed enactments, which have very AND INSOLVENCY BILL,a little relation to the subject of bankruptcy
and insolvency, and could scarcely be exThe bill presented by Lord Brougham, pected to be comprehended in a bill with to the House of Lords, previous to the such a title. The power with which it is Easter recess, has been reprinted with the intended to invest the judges of the County amendments agreed to in committee. If Courts, to order the arrest of debtors supthe measure does not acquire force, it cer- posed to be about to depart from England, tainly obtains a great accession of bulk as and which formed the subject of some it proceeds, and should it continue to in- lengthened observations in our number of crease in the same proportion, before its Saturday last, is conferred by, and exarrival at the last parliamentary stage it plained in, a single clause. It is in these may be entitled to the distinction of a words :monster bill.
“ Whereas the delay which sometimes takes The amendments introduced in committee are undoubtedly of great substan
place in procuring an order from a judge of
one of the superior courts to hold a defendant tive importance, and some of them well to bail, and in issuing a capias thereon, is indeserving of serious consideration when a jurious to creditors; be it enacted, That if a fitting occasion arises. As we have fre- plaintiff in any action in any of her Majesty's quently had occasion to observe, an annual superior courts of law at Westminster for the revolution in a matter of such universal recovery, of a debt, or the creditor of any application as the law of debtor and credi- debtor who shall enter into an undertaking imtor is itself an evil of considerable magni- by the affidavit of himself or some other person
mediately to commence such an action, shall tude. This branch of the law has now show to the satisfaction of any judge of any of become so complicated and involved, by a the county courts aforesaid, that he has a cause multitude of contradictory enactments, of action against such defendant or debtor to that a careful and well-digested consolida- the amount of 201. or upwards, or has sustained tion should precede or accompany any damage to that amount, and that there is profurther change. Without this, even jui
bable cause for believing that such defendant dicious and well-considered alterations forthwith apprehended, it shall be lawful for
or debtor is about to quit England unless he be could scarcely be satisfactory or effective. such judge to issue his warrant, directed to Our readers shall presently have an oppor. such person or persons as he shall think fit, tunity of judging for themselves, how far whereby such person or persons shall have authe additions now proposed to be made in thority to arrest any such defendant or debtor the bill are entitled to be called amend- named in such warrant, wherever he may be ments. We intend, however, in the first found within the limits of the jurisdiction of instance, to direct attention to two of the such judge, and him safely keep for five days
next, or until such defendant or debtor
shall have given a bail bond to the sheriff, or . See notice of Lord Chancellor's new bill shall have made deposit of the amount of the for consolidating and amending the Lair of debt or damages mentioned such warrant, Bankruptcy, p. 16, post.
together with 10l. for costs, according to the VOL. XXXIV. No. 999.
The Amended Bankruptcy and Insolvency Bill. present practice of her Majesty's superior courts plaintiff in an action for the recovery of a of law at Westminster when a defendant is in debt, or the creditor of a debtor ; but the custody upon a writ of capias, or until an order warrant may issue at the instance of such for holding such defendant or debtor to bail can be obtained under the provisions of the act person, if he can satisfy the judge that he 1 & 2 Vict. c. 110, [setting out the title).
has a cause of action to the amount of 201., It will be observed, that under this pro- The section is silent as to the destination
or has sustained damage to that amount. vision, the arrest contemplated by a war; of the party arrested. He is to be safely rant a judge of the County Court will not justify the detention of the debtor for kept for five days, or until he shall have a longer period than five days: if it is in- given a bail bond, or made deposit, but tended that the detention should continue
whether the safe keeping is to be in a gaol, beyond that period, application must be in his own home, or in the house of the made, as at present, for an order to issue a
officer, is not specified, and, we suppose, is capias from one of the judges of the su
to be left to the discretion of the party to perior courts.
whom the warrant is directed. Upon what As the order may be had, in general, in the first instance, from a
terms a debtor so arrested can be allowed judge of the superior courts as soon as a
an opportunity of entering into a bail bond warrant could be obtained from a judge of to the sheriff, if so disposed, is also left althe County Court, we venture to think together to the conscience of the bailiff! the cases will not be very numerous in
Again, suppose the debtor is desirous to which parties will incur the double ex
give a bail bond to the sheriff within five pense and trouble of an application to a
days, how is the sheriff to know in what County Court judge, which must be fol. amount he ought to take a bond from a lowed before the expiration of five days by whom he has no warrant ? "The section, in
debtor not in his custody, and against a similar application to a judge of the su whom he has no warrant? The section, in perior courts, more especially, as it cannot
its present form, suggests numerous practibe ascertained whether the laiter will be
cal difficulties, and abundant opportunity satisfied with the same materials which in
for oppression on the one side, and evasion duced the County Court judge to grant his
on the other, warrant. The clause, it will be perceived,
The second provision to which we have requires that the creditor shall either com
referred more immediately interests those mence his action in one of the superior gentlemen who have accepted office as courts, or “enter into an undertaking im. judges of the new County Courts, as it semediately to commence such an action.” cures to them and their successors a life inWhat is to be the consequence if a credi- come, and, so far as they are concerned, tor enters into such an undertaking and cannot fail to be considered a very valuable neglects to fulfil it, is not specified, and amendment of the act of last session. The therefore, we apprehend, the only effect of section, which is numbered 44, proposes a breach of the undertaking would be, that the imprisoned debtor might apply for his “ That from and after the passing of this act discharge upon the ground that the credi- it shall be lawful for the Lords Commissioners tor had not commenced an action. Before of her Majesty's treasury, by any order or the application could be entertained, how from time to time made on a petition presented
orders, or minute or minutes, to be by them ever, unless it should be determined with to them for that purpose, to order (if they shall out any notice to the creditor, the five days, think fit) to be paid out of the Consolidated which the warrant of the judge of the Fund of the United Kingdom of Great Britain County Court has to run, would expire, and and Ireland the annuities following ; that is to the debtor obtain bis discharge upon say, an annuity [to the chief and other comgrounds irrespective of the violated under- missioners of the court for the relief of intaking. The framers of this clause would solvent debtors) and an annuity or clear yearly seen not to have quite made up their pounds to any judge of any county court ap
sum of money not exceeding minds whether the judges of the County pointed under the aforesaid act passed in the Court should have jurisdiction to authorize tenth year of the reign of her present Majesty, an arrest in cases of tort, or in claims for or any of his successors in the office of such unliquidated damages; or whether the judge, if and when any such chief commis
authority to issue a warrant is to be limited sioner, commissioner, or judge shall be afflicted v t9 cases where, the party applying for the with permanent infirmity disabling him from warrant can swear to the existence of an desirous of resigning the same; such annuity
the due execution of his office, and shall be ascertained debt. The parties entitled to or clear yearly sum to be paid by equal quarterly apply for a warrant are described as, the payments on the 5th day of January, the 5th
to enact :
The Amended Bankruptcy and Insolvency Bill. day of April, the 5th day of July, and the 10th must be restricted by considerations of the day of October in every year, to such chief limited space at our disposal. The followcommissioner, commissioner, or judge, from the period when he shall resign his said office ing is amongst the alterations which would for the term of his life, free from all taxes, ex
meet with unqualified approval :cept the tax on income.”
“ That from and after the passing of this act Now, it may be quite reasonable, and no fee shall be charged by any commissioner even desirable, that the sixty-four gentle of the Court of Bankruptcy or District Courts men who have found favour in the sight of by the said master, for the swearing of any af
of Bankruptcy, or by any registrar thereof, or the Lord Chancellor, and received appoint- fidavit in any matter in bankruptcy, for the ments as judges of the County Courts, filing of any document in any of the said courts, should in due time be rewarded with retir- or for any order made by any commissioner ing pensions. We have always contended thereof." for the application of the principle, that the labourer is worthy of his hire, and we do hands of the suitor to those of the officers
The constant transfer of coin from the not now recommend a departure from it. of a court of justice, during its public sitBut we venture respectfully to suggest, tings, is, to say the least, unseemly, and that it is somewhat premature to fix the amount of the retiring pensions of gentle- ought to be universally abolished.
We also incline to think that the reducmen, many of whom have not yet had an tions contemplated by the following clauses hour's judicial anxiety, and who have been appointed with the view of testing an ex- carried further with advantage to the
recently introduced into the bill, might be periment the result of which no man can anticipate with perfect confidence. The public, and without materially affecting the judges of the new County Courts, under efficiency of the officers principally inthe act 9 & 10 Vict. c. 95, are to be com- probably arise for discussing this matter
terested. But a better opportunity will pensated by fees, and not by fixed stipends. hereafter. No estimate can yet be made of the amount of fees to be received by any one “ That from and after the passing of this of them, or of the amount of labour and ap- act no sum shall be allowed by any commisplication that may be required in the dis- sioner of the Court of Bankruptcy or District charge of their judicial functions. We can- Courts of Bankruptcy to any official assignee not conceive, therefore, that any satisfac
for the examination of books or accounts, or tory materials can now exist, or be laid that henceforth every official assignee shall
as or for any extra service whatsoever; and before parliament, to enable a committee his own services, the salaries of his clerks, and of the House of Commons to fill up the for office and warehouse rent, and stationery blank in the section above printed with and office expenses, receive a per-centage on the sum to which the retiring pension all assets collected and applicable to the purshould be limited. Indeed, there seems poses of every estate, and no more, such perno good reason for calling upon the legisla- sioners of the Court of Bankruptcy acting in
centage to be settled by such of the commisture immediately to settle the retiring London, and such of the commissioners of the pensions of judges so recently appointed; said court acting in the country, as the Lord although it might have been otherwise, if Chancellor shall appoint for that purpose, and any one of the judgeships had been con- to be approved by the Lord Chancellor. ferred on a person likely to “be afflicted “ That every official assignee shall, on or bewith some permanent infirmity disabling fore the 1st day of March in every year, if him from the due execution of his office," parliament be then sitting, and if not, then and for whom it was deemed prudent, not then next ensuing session of parliament, lay be
within 14 days from the commencement of the to say charitable, to provide. Public feel- fore parliament a return, made up to the 31st ing and public interest would both be better day of December then last, of the total amount consulted by refraining from conferring ad- of such per-centage received by him during the ditional jurisdiction, or pledging the country year ending on that day; and that if the same to the payment of pensions to the new shall amount to more than the sum of judges, until the men and the system they pounds, in the case of an official assignee act
ing in London, or more than the sum of are to administer have been fairly tried.
pounds in the case of an official Our commentary upon the remaining assignee acting in the country, the surplus clauses introduced by way of amendment shall by them be paid over to the Bank of
England, to the credit of the account intituled * The bill, as originally presented, was printed “The Secretary of Bankrupts Account;" every in vol. 33, p. 411, and the amendments intro- such return so laid before parliament to be duced in the second bill
, in the same volume, certified by a commissioner of the Court of P. 446.
Construction of Statutes.—Practice in the New County Courts. Bankruptcy or District Courts of Bankruptcy, the editor, and it was not expressly stated and the payment over of every such surplus to that he had paid them for their contribube certified by the Accountant in Bankruptcy., tions.
“ That as and when the commissioners and registrars whose offices are abolished by this
Under those circumstances, the Viceact shall die, resign, or retire, or be promoted Chancellor was of opinion that the plaintiff or removed, and as and when the annuities was not entitled to the copyright under which in virtue of this act, or any other act re- the 18th section, as it did not appear that lating to bankruptcy, may be ordered to be he was the proprietor of a periodical work, paid, shall fall in and be no longer payable, it who paid for the composition of the articles shall be lawful for the Lord Chancellor still inserted therein, upon the terms that the further to reduce the fees exacted in matters of bankruptcy, and if the per-centage aforesaid copyright should belong to him. Upon shall amount to more than is required for the these grounds, his Honour refused to interpayment of the official assignees of the sums fere by injunction. hereinbefore mentioned, also to reduce the amount of such per-centage.”
PRACTICE IN THE NEW COUNTY
COURTS. CONSTRUCTION OF STATUTES.
The decision of Mr. Koe, at the County Court at Hertford, mentioned under this
title in our last number, was the subject In a late case of Brown v. Cooke, which of a question put by Mr. Bouverie to the was an application by the proprietors of a Attorney-General, in the House of Comweekly periodical, called the “London mons, on Monday evening last. The Medical Gazette,” for an injunction against Attorney-General expressed a decided the defendant as publisher of the “Medical opinion that, under the 83rd section, the Times," upon the ground of an alleged in- parties respectively may be examined in fringement of the copyright in certain support of their own cases, as well as at articles originally published in the “London the instance of the adverse party. This Medical Gazette," the Vice-Chancellor of construction of the act is in accordance England put a construction on the Copy- with what we understand to be the right Act, 5 & 6 Vict. c. 45, which it is vailing opinion of the profession, and, no desirable should be generally known. By doubt, will be generally acted upon by the the 18th section it is enacted, that when judges of the County Courts. any publisher or other person shall be the Another case has been nientioned, beproprietor of any periodical work, and shall fore Mr. Gale, the judge of the Hampshire employ any person to compose the same, district, where it happened, as there is too or any articles or portions thereof, and much reason to fear it frequently will in such work, articles, or portions, shall be those courts, that the plaintiff swore posicomposed under such employment, on the tively to the existence of a debt which the terms that the copyright therein shall be- defendant as positively denied. The learned long to such proprietor, and paid for by judge thought, that under those circumhim, the copyright in every such work, stances, lie was bound to decide against article, and portion so composed and paid the plaintiff, on the principle, that the burfor, shall be the property of such proprietor, then lay in every case upon the plaintiff tu who shall enjoy the same rights as if he substantiate his claim, and that in this inwere the actual author thereof, &c. stance he had failed to do so, inasmuch as
In the case which formed the subject of his testimony was contradicted. We have application, it appeared that the pirated no reason whatever to doubt that justice articles were composed by various persons, was done in the particular case referred to, whose names were set forth, expressly for but we question the soundness of the docthe “ London Medical Gazette," and that trine, if meant to be laid down as a general the plaintiff and his partners paid an editor, rule, that where the plaintiff relies on his who communicated with the various con- own testimony, and is contradicted by the tributors. It was quite clear that the plain- defendant, the latter must prevail. It is tiff and his partners did not deal directly holding out a premium to an unscrupulous with the original composers of the pirated defendant, and it will soon be seen how articles, but that they were dealt with by many will avail themselves of it! Where
b 16 Law J. 140. Chancery C.
c Vol. 33, p. 579.
DEVISE TO THE SUBSEQUENT WIFE OF A
Practice in the New County Courts.-Law of Wills.
5 the plaintiff and defendant are the only is practically subject to judicial authority witnesses, and their evidence conflicts, the in nearly as great a degree as the attorney. same principle applies as when any other If a distinction of this kind were estabwitnesses contradict each other in a matter lished, it is hoped it would not be deemed of fact. The judge is bound to do, as juries invidious by the more numerous body of are constantly directed,--to weigh all the clerks who have not entered into articles, circumstances,—to examine into surround- and whose general ability and trustworthi. ing events,—to see if one statement may ness are not always, perhaps, sufficiently not be corroborated by collateral facts, appreciated. whilst the other remains unsupported, -to consider even the probabilities of the adverse declarations, and not wholly to ex
LAW OF WILLS. clude the influence founded on an estimate of the character, temper, and demeanour of the witnesses, as disclosed by their examination. In short, the judge of a County Court, in our humble opinion, is bound, in AFTER the 1st of January, 1838, 1. B. every case in which he is not assisted by a makes his will, and thereby devises certain real jury, to determine, according to the best of estate to an unmarried daughter in fee, such his judgment, which of the parties is most then perfectly disinterested. Soon afterwards
will being attested by two persons who were entitled to credit. No doubt, the singular he made a codicil, but which did not affect the and isolated case may occur of a contra- above-mentioned devise, and confirmed the will, diction in fact, where the weight of testi- except as thereby altered. The codicil was atmony is so nicely balanced, that there is no tested by one of the witnesses to the will, the consideration which ought to incline the other witness being a fresh but also a dis.
one, scale to the one side or the other, and in interested party; and the testator shortly after
wards died. such a case, and such a case only, as it seems to us, the principle said to be adopted Subsequently to the date of the codicil, but by Mr. Gale should prevail.
before the death of the testator, the daughter As might have been expected, a majority is contended, that the devise to her, she being
marries one of the witnesses to the will; and it of the new judges have taken an early op- now the wife of an attesting witness, is void portunity of announcing their determina- under the 15th sect. of 7 W. 4, and i Vict. tion not to allow unqualified persons to re- c. 26.
But it must be borne in mind that she present parties in the new courts. Ac. was not, at the date of the will, nor until after cording to the newspaper reports, however, that of the codicil, married to the witness. But, Mr. Heath, the judge of the Bloomsbury will by itself, is not the defect (if one) cured by
admitting that a question may arise, taking the Court, intimated a disposition to allow the the codicil, to which the now husband was not clerks of attorneys to practise before him,
a witness, as it is enacted by sect. 34, “that provided they brought with them letters every will re-executed, or republished, or refrom their principals, giving authority to vived by any codicil, shall, for the purposes of act. We are quite sensible that it would this act, be deemed to have been made at the time be a great convenience to many attorneys, at which the same shall be so re-executed, reif their clerks might appear for them in the published, or revived." But the 24th section of Small Debis Courts.
the same act enacts, We are apprehen- construed with reference to the real and per
That every will shall be sive, however, that if the permission were sonal estate comprised in it, to speak and take granted upon the production of a written effect as if it had been executed immediately beauthority, it would open a wide door to fore the death of the testator,” at which time the irregularity and abuse. Persons might daughter was married. assume the character of clerks for the oc
Will not the will and codicil, under the 34th casion who did not really stand in that re- section, be construed to be but one instrument, lation, and authority might be obtained and the devise be good, in consequence of the from an attorney, having no knowledge of, codicil not being attested by the devisee's suband a very subordinate interest in, the suit. sequent husband ? or, is the devise bad under If there should be any extension of the the 24th section, in consequence of the daughter rule, it might, for the present, be limited being married previous to the death of the
testator? to gentlemen under articles. There is a
W. H. B. simple and ready means of ascertaining whether any person assuming the position
[Some of our readers can probably refer to of an articled clerk is entitled to the cha
a case on this subject. -Ed.] racter; and, moreover, the articled clerk