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New Statutes.-Legal Advisers of Prisoners.-Law Amendment Society. 541 tion of the new Arrangement of Dioceses, so approved by Sir George Grey, the Home Sefar as it affects the existing Ecclesiastical Juris- cretary:dictions, and for obtaining returns from and the Inspection of the Registries of Jurisdictions,

24th Sept. 1847. now stand continued until the 31st day of De

“Prisoners for trial shall be permitted to see cember next, shall continue in force until the their relations and friends on any week-day 2nd day of November in this year, and shall without any order, between the hours of ií then cease to be in force.

and 2 o'clock in the afternoon, and at any other 7. Commencement and continuance of act.-time on a week-day by an order in writing from And be it enacted, That so much of this act as a visiting or committing justice ; and they shall is herein before contained shall commence and be permitted to see their legal adviser (by which come into force on the 1st day of November in is to be understood a certificated attorney or this year, 1847, and shall continue until the 1st his authorized clerk) on any day, at any readay of August in the year 1848, and, if parlia- sonable hour, and in private if required. ment be then sitting, until the end of the then Prisoners of this class may write or receive session of parliament.

letters, to be inspected by the governor, except 8. Confirming certain acts of jurisdiction.— any confidential written communication preAnd be it enacted, That where under the pro- pared as instructions for their legal adviser ; visions of the first-recited act any parish or such paper to be delivered personally to the place shall have been brought within any diocese legal adviser or his authorized clerk, without to which it did not belong before the passing being previously examined by any officer of the of the first-recited act, and any act of jurisdic- prison; but all such written communications not tion or authority shall have been exercised as personally delivered to the legal adviser or his to such parish or place since the passing of the clerk are to be considered as letters, and are first-recited act, and before the ist day of No- not to be sent out of the prison without being vember in this year, by the bishop or any officer personally inspected by the governor. Any of the bishop of the diocese or any archdeacon person presenting himself for admission, as the of the diocese to which such parish or place be clerk of an admitted attorney shall, in the ablonged, either before or since the passing of the sence of his principal, produce to the governor first-recited act, which does not conflict with in each case evidence (satisfactory to such goany similar act of jurisdiction or authority pre- vernor) of his being such an accredited agent; viously and since the passing of the first-recited and the legal adviser or his clerk shall name act exercised as to such parish or place by any the prisoner whom he wishes to visit.” other bishop or officer of any other bishop or archdeacon having or claiming to have jurisdic- SOCIETY FOR PROMOTING THE tion as to such parish or place, the saine shall AMENDMENT OF THE LAW. be deemed as good and valid as if such parish or place had then been wholly and undoubtedly within the diocese and jurisdiction of the bishop by whom, or by any officer of whom, such act of jurisdiction or authority shall have been ex- The following reference was made to the ercised.

common law committee of this society :9. Officers appointed under this act to be sub

To consider the propriety of reviving the ject to regulations hereafter made by parliament. ---And be it enacted, That every person who action of account for the purpose of facilitating shall have been appointed after the passing of the investigation of accounts in courts of comthe first-recited act, except as therein excepted, mon law, particularly in the cases of partners or who shall be appointed after the passing of and agents.” this act, to the office of judge, registrar, or other officer of any Ecclesiastical Court in Eng

A paper on the above reference was presented land, shall hold the same subject to all regula- to and read before the society, by Mr. Alexander tions and alterations affecting the same which Pulling, and referred, by their direction, to the may be hereafter made by authority of par- committee :liament; nor shall any person by bis appointment to any such office acquire any claim or sideration of the Law Amendment Society, with

“ The present paper is submitted to the contitle to compensation in case the same he here- the view of eliciting the opinions of members after altered or abolished by act of parliament. conversant with the various systems of pro

10. Act may be amended, &c. - And he it en: cedure recognised by the Law of England for acted, that this act may be amended or repealed the investigation of matters of account, before by any act to be passed in this session of par- the subject is referred, as a mere common law liament.

question, to the common law committee. LEGAL ADVISERS OF PRISONERS.

“ It is well known that in a large proportion

of cases which, in this great commercial RULE RELATING TO PRISONERS COMMITTED country, are made the subject of litigation, the

real matter in dispute consists rather in details FOR TRIAL, OR FOR EXAMINATION,

which can be more conveniently investigated The following rule for the government of the in the chambers of qualified officers and acods of the county of Middlesex, had been countants than in open court.

ACTION

OF

PROPOSED REVIVAL OF THE

ACCOUNT.

542

Society for Promoting the Amendment of the Law. “ It is in very few forms of proceeding, how-that has brought the action of account into ever, that the just state of the account between disuse.' On this ground of dilatoriness, in the the parties can be ascertained by the court old common law proceedings, alluded to by itself; and hence, for the investigation of these Lord Hardwicke, appears alone to rest the erdetails have been gradually called into existence clusive jurisdiction now exercised by the Court the cumbrous machinery of the Masters' of Chancery in matters of account, and the inOffices in Chancery, the system of references to quiry into the proceedings in the Master's arbitration after the ineffectual institution of office, which has lately occupied so much of other legal proceedings, and the far less ob- the attention of this society, sufficiently disjectionable system of references, in the first closes how far the modern remedy offers an instance, under the Bankrupt and Insolvent adequate substitute for that provided at common Laws; and in some few cases, to the Masters law. of the courts of common law.

“In cases of accounts not involving matters “With regard to proceedings in matters of of trust, or other objects within the peculiar account in courts of common law, it appears a and legitimate jurisdiction of the Court of Chanremarkable anomaly in our system of jurispru- cery, the want of a common law remedy, pardence, that whilst it is deemed a duty peculiar ticularly in matters of small amount, offers a to certain relations, e.g., those of partners and direct immunity to fraud. This result is noprincipal and agent, that the party entrusted where so glaring as in those cases where a de. with the receipt of monies, &c., should be ever fendant sued at common law for a debt or deready to render an account, there exists at this mand, succeeds in making out an express or day no common law remedy by which this duty quasi partnership between himself and the can be practically enforced.

plaintiff, with respect to the subject matter of “The proceedings in matters of account form the claim. In this case, it will be remembered, a distinct portion of the Code de Procédure the creditor's only remedy under the present Civile of our neighbours (liv. V. tit. 4, p. 528,) system is by bill in Chancery, and a formal reas an ordinary legal proceeding; and our own férence to the Master to investigate the accommon law provided for this purpose the form counts; however simple the transaction may be of action described in the books under the title out of which the demand arises, and however of the Action of Account, which though now small the amount in dispute. Thus, in Bocill grown into disuse, was the peculiar remedy v. Hammond (6 B. & C. 149), the leading case

escribed by the common law for the investi- on this point, where two parties jointly undergation of open accounts, not only between took to procure a cargo for a particular ship, parties in trade, but in the case of guardians, and the commission for the job was paid to receivers, and others over whom the Court one; it was held, that the latter could not be of Chancery now exercises an exclusive juris- sued at law in an action in the form of money diction.

had and received by the other for his share of “The preliminary proceedings in the action the commission, though it was an isolated of account are in themselves as simple as those transaction, and the amount actually disputed of other actions : at all events, as such pro- was only 5l. ceedings were before the act of the 3 & 4 W.4, “In some of the states of America our old c. 42, and the rules made by the judges there form of the action of account appears to bave under. The declaration concisely specifying been successfully revived for the purpose of the circumstances under which the defendant adjusting mercantile disputes, both those beis called on to account, and the pericd over tween partners and between principal and agent. which the account demanded extends : and the See James v. Browne, 1 Dallas, American Redefence consisting either of a denial of the facts ports, 339; Jordan v. Wilkins, 2 Washington stated in the declaration, or of some matter in Circuit Reports, 482; and in Pennsylvania the discharge of the defendant's prima facie mode of proceeding in this action has been very liability. The result of the trial of the issue recently subjected to legislative amendments, so raised by these pleadings is, either a discharge as to render it available in most cases respecting of the defendant, or a judgment quod computet accounts, where in this country recourse is had from a given day.

in a suit in Chancery. Act of the legislature "The great source of the delay in this pro- of Pennsylvania, 13th October, 1840, cited in the ceeding, as in that by suit in Chancery, which edition of Starkie on Evidence, by Gerhard and has superseded it, appears to arise subsequent Metcalf, v. 2, p. 17. to the reference of the account. In proceedings “There are not wanting instances in modern before auditors in an action of account the times where, in this country, the revival of the abuse appears to have grown up of allowing the action of accounts has been hailed with satissame prolixity of written pleadings in the in- faction from the hench, as by Chief Justice vestigation of each item or class of items in the Wilmot in Godfrey v. Saunders, 3 Wilson, 47; account, as in the original question of the and in Scott v. Macintosh, Lord Ellenborough liability to render the account.

observed: “Those who wisely framed our ju“« It is the opportunity,' Lord Hardwicke risdictions did not contemplate a long account observes (in Exp. Bax. 2 Ves., sen. 388), between merchants being referred to a jury.

which the defendant has of delaying the pro. This tribunal is quite unfit for such an investiceedings by raising a succession of issues tried gation, and we have not the necessary time to in a formal way, like so many separate actions, I bestow vpon it. Let the plaintiff bring his ac

Society for Promoting thé Amendment of the Law,

543 tion of account, and auditors will be appointed, item, it is obvious, that in all the cases we have who will do justice between the parties without been just considering, the same object would producing any inconvenience to the public.' then be attained by direct means, which is now 2 Camp. 239.

attained only indirectly, at a great expense, and “In the recent case of Baxter v. Hosier, re- with considerable loss of time. ported in 7 Scott, 233, and 5 Bingham's New “The only alterations necessary to bring the Cases, 288, the adoption of this proceeding was action of account into present practical use made conducive to the ends of justice by the appear to be the promulgation of similar rules defendant consenting to a reference of the for establishing simplicity of pleading and simmatter in dispute (under 1501.), which he had plicity of proceeding in this as in other perpreviously refused to accede to, on the suppo-sonal actions, and the abolition altogether of sition that the only remedy for the plaintiff' was the system of written pleadings in proceedings a suit in Chancery:

before the auditors. The judgment quod com“The complete failure of justice of the remedy putet would then be tantamount to an ordinary by suit in Chancery in many questions with re- judgment in assumpsit by default for want of gard to mercantile accounts; the impossi- a plea, with the advantage of more complete bility, or, at least, absurdity of resorting to it justice being done under it; as the auditors when the amount in dispute is small; and the are, at common law, empowered to find a disuse of the ancient common law remedy now balance due to either party. 2 Institute, 380. under consideration, have induced our courts It appears desirable, also, to alter the law of law to give a greater latitude to the actions in this, as it has been in other cases altered of debt and indebitatus assumpsit in the case of with regard to the right of appeal from the agents, bailees, &c., in order to meet the pur- judgment quod computet, on which, as the law poses of justice; e. g. construing the omission at present stands, it is held no writ of error of an agent or bailiff ad merchandizandum, to lies, Metcalf's case, 11 Coke, 38. account for the goods entrusted to him for sale, Another and very important matter to be as presumptive evidence after a certain period settled, in order to render the proceeding by of the goods having been converted into cash. way of action of account conducive to the ends Practically, however, in intricate cases, the only of justice, is the regulation of the costs to which result of a court of law taking cognizance of the respective parties should be entitled ; for matters of account in this way is to induce the it is apparent that the judgment quod computet parties, often at the eleventh hour, after the ought not of itself to entitle to costs the party whole of the expenses of the action, the trial, seeking the account, should he afterwards turn and the witnesses, have been incurred, to con- out to be the debtor and not the creditor under sent to refer the account to an arbitrator. In it. Arnold v. Webb, reported in a note to 5 Taunt. “ Justice seems to require, that if any 432, assumpsit was brought to recover the ba- balance be found due from the party called on lance of an account extending over thirty brief- to account, the law should remain as it is; viz., sheets closely written ; and Dampier, J., though that judgment may be forthwith signed against intimating his opinion that the cause could not him for the arrears and costs; but, on the be got through in five days, refused to dismiss other hand, if the balance be in favour of that it, but at length induced the parties to refer it. party, the costs should be in the discretion of

“ In the case, previously cited, of Scott v. the court or a judge on a special application. Macintosh, the defendant, with more cunning, “The revival of the action of account would refused to refer, and thus appears to have of course put an end to the exclusive jurisdicevaded payment altogether. In fact, the plain- tion now exercised by the Court of Chancery in tiff in such cases is generally at the mercy of matters of account; but this would hardly the defendant, for in numerous instances, in affect the practical exercise of the Chancery addition to those arising out of partnership jurisdiction, for the remedy would be, of matters, the rules of evidence at nisi prius do course, confined to cases where nothing but a not admit of the same facility of proof as is per- simple account between two parties was in mitted in the cases of reference to arbitration issue, and the great boon to the suitor conor to auditors in an action of account, or to a ferred by the change would be felt in cases Master in Chancery.

where the amount in dispute is small, and the “The common law commissioners, in their remedy by suit in Chancery wholly impracsecond report, recommend certain alterations in ticable. In partnership disputes it would nethe system of references to arbitration as a sub- cessarily be confined to those cases where the stitute for the old action of account, e. g., partner called to account was not subjected to making the reference compulsory in certain outstanding partnership liabilities; for in this cases ; but it is easy to see under the regula- case the ordinary jurisdiction of the Court of tions proposed by them, that an arbitration Chancery by way of injunction would be rewould be much more tedious than a reference sorted to, to prevent, at all events, the actual to auditors. See p. 78, 2nd Report.

payment of money found due to one partner, “Were the remedy by action of account re- without allowing for such outstanding claims; vived, and the auditors for the investigation of and the same observation will apply to all other the account empowered to proceed like ordinary cases where the claims of third parties come in arbitrators, without the formalities of written question. pleadings and distinct issues on each particular "In any regulations which might be made

в в 5

544 Indications of further Law Reforms.Insolvents' Protection, 7 & 8 Vict. c. 96. as to the persons to be appointed auditors, it is to my learned friends around me, and whose conceived the same latitude should be allowed frowning brows are knitted against me on the to the parties as they have at present in cases present occasion (laughter); I say it with all of arbitration, or if it were deemed advisable deference to you, Mr. Mayor,a (laughter); the to appoint regular officers, such as the present state of the laws of our land, improved as they masters, or a certain number of barristers, have been by the County Courts, is still a dismerchants, and accountants, (to be remunerated grace to this country. (Cheers.) I say the as arbitrators are at present,) that the parties administration of the laws, civil and criminal should still be at liberty to select such private Chancery and Common Law-I will even go auditors in their place as they might agree on. so far, with the permission of Dr. Curteis

, as It would also be proper to give to the auditors to say Ecclesiastical Law, even the Law of the appointed to take the account full powers to Spiritual Courts, is the disgrace of this compel regular and continuous attendance, and country.” it would be advisable to limit the discretion of

We have little doubt that the Court of Chan. the auditors as to postponements, which, as now unfortunately permitted to Masters in cery and the Ecclesiastical Courts will undergo Chancery and to arbitrators, but too frequently much discussion, if not much change, in the occasion a large increase of expense to the new parliament, and this intimation from Mr. suitor, and unnecessary delay in the conduct of Buller, the Judge Advocate-General, is the the suit.”

more important from the weight and influence In noticing, some time ago, a very useful

which his eminent talents and high character work on “Mercantile Accounts, by Mr.

deservedly confer on his opinions. Alexander Pulling, we ventured to differ from him in the expediency of reviving the Action of Account ; but we willingly give publicity to his INSOLVENTS' PROTECTION, 7 & 8

VICT, c. 96. views, and recommend our readers to weigh the arguments he has here ably set forth. As thus explained, the proposition is entitled to AlThough it has now been decided by favourable consideration. We shall be glad to Toomer v. Gingell, that the final order of an inhave the subject concisely discussed by such of solvent, under 7 & 8 Vict. c. 96, protects his

person only, and not future acquired property, our correspondents as are interested in it. The it may be interesting to some of your corteproposed alteration should be maturely can- spondents to be informed of the following vassed before it is brought to the notice of par

facts :

In December, 1845, I signed judgment liament, and the suggestion is one on which

against a defendant for 201., and issued fi. fa. the practical experience and judgment of soli- The officer, on attempting to levy, was precitors should be particularly consulted. vented by the messenger of the Bankruptcy

Court and defendant's protection, he haring INDICATIONS OF FURTHER LAW

filed his petition. Defendant scheduled my

client for debt and costs, and obtained his final REFORMS.

order. A few weeks ago, hearing that defend

ant had a well-furnished shop, &c., in LiverAt the “ gatherings together” which take pool, I directed the sheriff of Lancashire to place of the Constituencies to receive their new apply to his predecessor for the fi. fa., and or old Representatives in parliament, we may officer, with instructions to levy. The officer

send a fresh warrant thereon to a Liverpool sometimes discern signs, both of the popular levied accordingly, and defendant took out a and legislative feeling, in regard to future summons returnable before Mr. Baron Platt, rechanges,

quiring plaintiff to "show cause why the officer

should not withdraw and pay all costs, as the Coming events cast their shadows before." goods belonged to the official assignee,” (10 Amongst other notes of preparation for the Platt dismissed the summons with costs, and

trade assignees had been appointed.) Mr.Baron next session, the following is not undeserving defendant paid the debt and costs. of observation.

So much for the protection of the Court of At a public dinner given to Mr. Charles Bankruptcy, so easily obtained, so full of Buller, M. P., at Liskeard, on the 22nd Sep

promise to the ear,” so fallacious in the result.

G. J. tember, the learned and honourable member, after going over all the main topics of political and social reform, adverted to that of the law.

a The Mayor of Liskeard for the present He said,

year is a solicitor. “We have much yet to be done in the reform of our financial policy and the state of our laws. As a lawyer myself, I say it with all deference

JURISDICTION OF BANKRUPTCY COM

MISSIONERS,

County Courts Act.-Superior Courts : Lord Chancellor.-Rolls.

545 COUNTY COURTS ACT.

Mr. Bacon and Mr. Wickens, for the defendant Nicholson, argued in support of the demurrer.

The Lord Chancellor. This case appears to

me to be very free from doubt. Two grounds To the Editor of the Legal Observer. are advanced for supporting this demurrer, Sır,- I have read the letter of S. H. hereon viz., want of equity, and multifariousness. The in your number for the 25th September, page

facts are stated to be these :-- Various bills of 503, and think that the question asked by exchange were drawn and accepted by the “Tacitum” has not yet been correctly an- plaintiff, and delivered by him to the defendant swered. S. H. is quite right in his view of the Chadwick in the course of business during the state of the law before the late act, 10 & 11 existence of a partnership between them, for Vict. c. 102, for making alterations in the which bills it is said no consideration passed. Courts of Bankruptcy and Court for Relief of Chadwick having endorsed one of them over Insolvent Debtors, by section 4, of which statute to the defendant Nicholson, and the latter all powers, jurisdiction, and authority given to threatening to bring an action for the amount, Courts of Bankruptcy and to the commissioners the plaintiff filed his bill praying for an acthereof by the Small Debts Act, 8 & 9 Vict. count between himself and Chadwick, and for c. 127, is transferred to and vested in the In- an injunction to restrain Nicholson from bringsolvent Court and New County Courts.

ing such action. In this case the demurrer, This last act came into operation on the for want of equity, depends upon the question 15th of September, and, I think, under the of multifariousness; for, if the plaintiff has a section I have cited, there is no doubt but right in equity against the defendant Chadwick that the jurisdiction of the Bankruptcy Com- in respect of these bills of exchange, he will missioners to summon a party where the judg- have the same right against Nicholson, who ment or order is obtained in the Superior Court claims through Chadwick, unless the bill filed is taken away, and that now the jurisdiction in in this court is multifarious as regards Nicholsuch cases is vested in the judges of the New son. Now, it has been decided in numerous County Courts, because the jurisdiction to cases, and, I think, first by Sir John Leach, summon a party upon judgments or orders ob- that if one entire case is made out against one tained in the Superior Courts for debts under defendant, another defendant connected only or not exceeding 201. was given to the Bank- with part of it cannot demur for multifariousruptcy Commissioners by the Small Debts Act, ness. There can be no question that such is 8 & 9 Vict. c. 127, which jurisdiction, I con- the case in the present instance, and, therefore, ceive, is now taken away by section 4 of the last I think the Vice-Chancellor was wrong, and act, as before stated. Í presume your corre- that this demurrer must be overruled. spondent S. H. had not read the late statute when he wrote you.

Kolls Cont. I am about applying for a summons under şimilar circumstances to the County Court Fenwick v. Greenwell. July 6th, 9th, and 12th, here, and should either of your correspondents

1847. still have any doubt upon the subject, I shall BREACH OF TRUST. — INDEMNITY CLAUSE. to inform him the result of my case.

G. P. W.

Trustees are liable for the loss of trust funds

which never came into their possession, notRECENT DECISIONS IN THE SUPE

withstanding the existence in the settlement RIOR COURTS.

of a clause of indemnity, if it was possible REPORTED BY BARRISTERS OF THE SEVERAL

for them to have got in the funds. That,
under certain circumstances, the trusts

might not have arisen, is no justification
Lord Chancellor.

for not getting in the trust fund. Knill v. Chadwick. July 26, 1847.

The court will not direct inquiries as to

whether the trust fund could be got in withMULTIFARJOUSNESS.

out a primâ facie case to show that it could If an entire case be made against one defend- not.

ant, another defendant who is partially
connected with the transactions of that Mr. Fenwick against one of the two trustees

This was a bill by one of the children of a case, cannot demur to the bill for multi- and the representatives of the other trustee of a fariousness.

settlement made upon the marriage of Miss Mr. Rolt and Mr. V. Prior moved, on be- Elizabeth Cuthbertson with a Mr. Fenwick in half of the plaintiff, to discharge an order of the the year 1807, to recover a certain sum of Vice-Chancellor of England allowing a de- 5,000l. stock comprised in that settlement. murrer by a defendant named Nicholson to This sum was alleged to be part of the rethe bill for multifariousness. Another ground siduary estate of a Mr. Henry Cuthbertson, to of demurrer, viz., for want of was not which Mrs. Fenwick, who was also Mr. H. argued. The facts of the case are stated in his Cuthbertson's executrix, was entitled as his lordship's judgment.

residuary legatee. In fact no such exact sum

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