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 meet with unqualified approval : for the term of his life, free from all taxes, except the tax on income." Now, it may be quite reasonable, and even desirable, that the sixty-four gentlemen who have found favour in the sight of the Lord Chancellor, and received appointments as judges of the County Courts, should in due time be rewarded with retiring pensions. We have always contended for the application of the principle, that the labourer is worthy of his hire, and we do not now recommend a departure from it. But we venture respectfully to suggest, that it is somewhat premature to fix the amount of the retiring pensions of gentlemen, many of whom have not yet had an hour's judicial anxiety, and who have been appointed with the view of testing an experiment the result of which no man can anticipate with perfect confidence. The judges of the new County Courts, under the act 9 & 10 Vict. c. 95, are to be com "That from and after the passing of this act no fee shall be charged by any commissioner of Bankruptcy, or by any registrar thereof, or of the Court of Bankruptcy or District Courts by the said master, for the swearing of any affidavit in any matter in bankruptcy, for the filing of any document in any of the said courts, or for any order made by any commissioner thereof." The constant transfer of coin from the hands of the suitor to those of the officers of a court of justice, during its public sittings, is, to say the least, unseemly, and ought to be universally abolished. We also incline to think that the reduc tions contemplated by the following clauses pensated by fees, and not by fixed stipends. 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 for the examination of books or accounts, or Courts of Bankruptcy to any official assignee not conceive, therefore, that any satisfacas or for any extra service whatsoever; and tory materials can now exist, or be laid that henceforth every official assignee shall, for 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," within 14 days from the commencement of the parliament be then sitting, and if not, then and for whom it was deemed prudent, not then next ensuing session of parliament, lay beto 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 are to administer have been fairly tried. Our commentary upon the remaining clauses introduced by way of amendment * The bill, as originally presented, was printed in vol. 33, p. 411, and the amendments introduced in the second bill, in the same volume, P. 446. pounds, in the case of an official assignee acting in London, or more than the sum of pounds in the case of an official assignee acting in the country, the surplus shall by them be paid over to the Bank of England, to the credit of the account intituled "The Secretary of Bankrupts Account;" every such return so laid before parliament to be certified by a commissioner of the Court of B 2 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 Under those circumstances, the Viceregistrars whose offices are abolished by this act 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 copyright should belong to him. Upon bankruptcy, and if the per-centage aforesaid 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 THE decision of Mr. Koe, at the County Court at Hertford, mentioned under this title in our last number, was the subject The 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. 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 preright 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 mentioned, 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 composed under such employment, on the terms that the copyright therein shall belong to such proprietor, and paid for by him, the copyright in every such work, article, and portion so composed and paid for, shall be the property of such proprietor, who shall enjoy the same rights as if he were the actual author thereof, &c. In the case which formed the subject of application, it appeared that the pirated articles were composed by various persons, whose names were set forth, expressly for the "London Medical Gazette," and that the plaintiff and his partners paid an editor, who communicated with the various contributors. It was quite clear that the plaintiff and his partners did not deal directly with the original composers of the pirated articles, but that they were dealt with by b 16 Law J. 140. Chancery C. those courts, that the plaintiff swore positively to the existence of a debt which the defendant as positively denied. The learned judge thought, that under those circumstances, he was bound to decide against the plaintiff, on the principle, that the burthen lay in every case upon the plaintiff to substantiate his claim, and that in this instance he had failed to do so, inasmuch as his testimony was contradicted. We have no reason whatever to doubt that justice was done in the particular case referred to, but we question the soundness of the doctrine, if meant to be laid down as a general rule, that where the plaintiff relies on his own testimony, and is contradicted by the defendant, the latter must prevail. It is holding out a premium to an unscrupulous defendant, and it will soon be seen how many will avail themselves of it! c Vol. 33, p. 579. Where Practice in the New County Courts.-Law of Wills. 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 trustworthiing 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 exclude 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 every case in which he is not assisted by a jury, to determine, according to the best of his judgment, which of the parties is most entitled to credit. No doubt, the singular and isolated case may occur of a contradiction in fact, where the weight of testimony is so nicely balanced, that there is no consideration which ought to incline the scale to the one side or the other, and in such a case, and such a case only, as it seems to us, the principle said to be adopted by Mr. Gale should prevail. Small Debts Courts. As might have been expected, a majority of the new judges have taken an early opportunity of announcing their determination not to allow unqualified persons to represent parties in the new courts. Ac cording to the newspaper reports, however, Mr. Heath, the judge of the Bloomsbury Court, intimated a disposition to allow the clerks of attorneys to practise before him, provided they brought with them letters from their principals, giving authority to act. We are quite sensible that it would be a great convenience to many attorneys, if their clerks might appear for them in the We are apprehensive, however, that if the permission were granted upon the production of a written authority, it would open a wide door to irregularity and abuse. Persons might assume the character of clerks for the occasion who did not really stand in that relation, and authority might be obtained from an attorney, having no knowledge of, and a very subordinate interest in, the suit. If there should be any extension of the rule, it might, for the present, be limited to gentlemen under articles. There is a simple and ready means of ascertaining whether any person assuming the position of an articled clerk is entitled to the character; and, moreover, the articled clerk DEVISE TO THE SUBSEQUENT WIFE OF A AFTER the 1st of January, 1838, A. B. makes his will, and thereby devises certain real estate to an unmarried daughter in fee, such then perfectly disinterested. Soon afterwards will being attested by two persons who were he made a codicil, but which did not affect the above-mentioned devise, and confirmed the will, except as thereby altered. The codicil was attested by one of the witnesses to the will, the other witness being a fresh one, but also a disinterested party; and the testator shortly afterwards died. Subsequently to the date of the codicil, but before the death of the testator, the daughter is contended, that the devise to her, she being marries one of the witnesses to the will; and it now the wife of an attesting witness, is void under the 15th sect. of 7 W. 4, and 1 Vict. c. 26. But it must be borne in mind that she was not, at the date of the will, nor until after that of the codicil, married to the witness. But, admitting that a question may arise, taking the the codicil, to which the now husband was not will by itself, is not the defect (if one) cured by a witness, as it is enacted by sect. 34, "that every will re-executed, or republished, or revived by any codicil, shall, for the purposes of this act, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived." But the 24th section of "That every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator," at which time the daughter was married. the same act enacts, Will not the will and codicil, under the 34th section, be construed to be but one instrument, and the devise be good, in consequence of the codicil not being attested by the devisee's subsequent husband? or, is the devise bad under the 24th section, in consequence of the daughter being married previous to the death of the testator? W. H. B. [Some of our readers can probably refer to a case on this subject.-ED.] Practice at the Judges' Chamber.-Questions at the Examination. PRACTICE AT THE JUDGES' CHAMBERS. Woods v. Speller. 21st April, 1847. THIS was a summons to stay proceedings on payment of debt and costs. The action was brought on a bill of exchange, and concurrently with the action the defendant was served with a notice in bankruptcy under the 5 & 6 Vict. c. 122, s. 14, and the question upon the summons was, whether the defendant was liable to the costs of the proceeding in bankruptcy. The plaintiff relied upon his right to proceed in bankruptcy as well as at law, and hence his equitable title to the costs of the latter as an auxiliary proceeding which a judge would recognize in refusing to stay the proceedings on such an application, unless on payment of those costs. The defendant contended, that as the act had not provided for the costs of the proceeding in bankruptcy, which was distinct from the action at law, and unconnected with it, there was no power in the judge to order the payment. Mr. Baron Alderson reserved his judgment, and after consultation with Mr. Justice Coleridge, ruled that, inasmuch as the law had provided two distinct remedies, the plaintiff had a clear right to proceed on both, and if he did so with reasonable and probable grounds, he should in fairness be allowed his costs of both proceedings; and his lordship therefore refused to make the order, unless the defendant consented to pay the costs of the proceeding in bankruptcy. Order drawn up accordingly. Rhodes and Lane attorneys for the plaintiff. Bartley and Southwood for the defendant. QUESTIONS AT THE EXAMINATION. Easter Term, 1847. I. PRELIMINARY. Where, and with whom did you serve your clerkship? State the particular branch or branches of the law to which you have principally applied yourself during your clerkship. Mention some of the principal law books which you have read and studied. Have you attended any and what law lectures? II. COMMON AND STATUTE LAW, AND PRACTICE OF THE COURTS. State some of the principal kinds or forms of action at common law. What is the meaning of a local and a tran sitory action? What actions are local and what transitory? What promise to pay the debt of another will be sufficient to found an action upon? If the acceptor of a bill of exchange refuse payment of it when due, is any and what step necessary before you can sue the drawer or indorser? appearance? Within what time after service of a writ of summons is it necessary to indorse on such writ the day of the week and month of such service? If such indorsement be omitted, what is the consequence to the plaintiff ? When it is now sought to arrest or detain a defendant under the provisions of the act for the abolition of arrest on mesne process, what is essentially necessary to be stated in the affidavit? In what cases must the declaration be filed, and in what cases must it be delivered? what time should the plaintiff declare to prevent Writ served in any term or vacation, within judgment of non pros. ? Where a defendant is advised to plead more than one plea, what steps must he take? If you are in possession of a document which be justified in incurring the expense of taking you intend to produce at the trial, should you a witness to prove it? or is there any other way of avoiding the expense? necessary? and what advantages attend the In what case is a registration of judgment doing so? and for different purposes, how should the same be registered? After what time must a judgment be revived, and by what process ? Describe generally the nature of copyholds, and how conveyed inter vivos. The like as to customary freeholds. What are the rules of descent as to fee simple estates, both freehold and copyhold? What is the date of the Statute of Uses, and what its principal enactments? What is the nature of the conveyance by lease and release, feoffment, and bargain and sale enrolled, respectively? Who is the protector of a settlement made since the Statute for the Abolition of Fines and Recoveries took effect, and who of a settlement made before that period? What description of instrument is now necessary for the disentailing of lands, and within Questions at the Examination. what period must it be enrolled, and where ? And is any reference to the statute, or to the purpose for which the deed is made, necessary in a disentailing assurance ? How does a married woman convey her estate in freeholds since that statute, and what are the requisites? Does the statute apply to the equitable as well as legal estate of a married woman, or to leaseholds for years ? What are the requisites of a deed, and what further should be attended to on the execution of a power by deed or other writing? What deeds or instruments respecting land in Middlesex require registration under the statute, and what are excepted? What was the form of conveyance of freeholds of inheritance to prevent the attachment of the purchaser's wife's dower before the statute of William the Fourth? Is it now ever necessary, and in what cases? What created the necessity of the estate, formerly limited to trustees, to preserve contingent remainders? Are such estates now unnecessary, and why? Can a husband convey his wife's reversionary leaseholds for years with or without his wife, or her revertionary portion payable out of land, freehold, or leasehold for years, and how? What is the effect of the Statute of Mortmain? IV. EQUITY AND PRACTICE OF THE COURTS. A person conveys his estates to trustees upon trust to sell and apply the proceeds of the sale in discharge of all his bond debts, and the interest then due, and to grow due thereon, up to the day of payment. Upon taking the account, it is found that the principal and interest upon some of them exceed the penalty of the bonds. In this case are the obligees entitled to the excess? If not, state the reason why. Where a legacy is charged on real and personal estates, and the legatee dies before the day of payment, how is this legacy treated? From what time does the interest of a legacy, given by a parent to a child, commence ? If an annuitant under a will dies before the day of payment, is any portion of the annuity payable in that case? and under what authority? What responsibility does a mortgagee incur by entering into the possession of lands mortgaged to him? In what order are the assets of a testator applied in payment of his debts? What is the effect of the Statute of Limitations on a legacy or annuity? If a feme covert have rights opposed to those claimed by her husband, and which she wishes to enforce, how must she proceed to do so? Where husband and wife are defendants to a suit, how does the death of the husband affect the suit? In what case is the answer of a defendant evidence for himself? What is the object of a plea? When it is apprehended a defendant is likely 7 to abscond without answering, what mode of proceeding is to be adopted in such a case? State the object of a bill to perpetuate the testimony of witnesses ? What is the intention of a show-cause warrant usually taken out before the master prepares his report? and when must it be taken out? What is the effect of enrolling a decree? COURTS. What are the preliminary inquiries which the solicitor ought to make before he can be sure that, if a fiat be issued against a person whom it is wished to make a bankrupt, it can be supported? What are the different steps to be taken under the fiat up to the time of the adjudication. Enumerate the different acts of bankruptcy. What course can an intended bankrupt take if he wishes to dispute the bankruptcy? and what course must he pursue with that obCan a trader get himself made a hankrupt, ject? What is the usual course of proceeding at the second meeting under the fiat? Can you give any examples of debts not due at the time which may be good petitioning creditors' debts? Can you give any examples of equitable debts which may be good petitioning debts? If a creditor who holds security wishes to prove his debt, what course must he take to entitle himself to prove? Must he take the same course if he holds bills of exchange as security? What is meant by fraudulent preference? Does the certificate of conformity discharge is the nature of the claims for which he may the bankrupt from all liability? If not, what continue liable, notwithstanding his certificate? Under what circumstances may the property of a third party become distributable under a fiat against a trader? actions and suits, and to refer to arbitration or Have assignees the unlimited power to bring compromise? If not, what is required to authorize a suit, arbitration, or compromise? thorize an action being brought, what to au If an action be brought by assignees against any third party, can such third party dispute the bankruptcy, and in what manner? and if disputed, what must the assignees prove as to the bankruptcy? If a bankrupt be a lessee under a lease for years, what course must the assignees pursue as to either adopting or disclaiming the lease? And if the assignees do not adopt the lease, what right has the bankrupt as to the lease? What is the mode of appealing from the decision of a commissioner, and to whom does the appeal lie? and to what higher tribunal is there any further appeal? And under what circumstances? VI. CRIMINAL LAW AND PROCEEDINGS BE- |