Society for Promoting the 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 with considerable loss of time. "In the recent case of Baxter v. Hosier, reported in 7 Scott, 233, and 5 Bingham's New Cases, 288, the adoption of this proceeding was made conducive to the ends of justice by the defendant consenting to a reference of the matter in dispute (under 1507.), which he had previously refused to accede to, on the supposition that the only remedy for the plaintiff was a suit in Chancery. "It appears desirable, also, to alter the law in this, as it has been in other cases altered with regard to the right of appeal from the judgment quod computet, on which, as the law at present stands, it is held no writ of error lies, Metcalf's case, 11 Coke, 38. "The only alterations necessary to bring the action of account into present practical use appear to be the promulgation of similar rules for establishing simplicity of pleading and simplicity of proceeding in this as in other personal actions, and the abolition altogether of the system of written pleadings in proceedings 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 of law to give a greater latitude to the actions of debt and indebitatus assumpsit in the case of agents, bailees, &c., in order to meet the purposes of justice; e. g. construing the omission of an agent or bailiff ad merchandizandum, to account for the goods entrusted to him for sale, as presumptive evidence after a certain period of the goods having been converted into cash. Practically, however, in intricate cases, the only result of a court of law taking cognizance of matters of account in this way is to induce the parties, often at the eleventh hour, after the whole of the expenses of the action, the trial, and the witnesses, have been incurred, to consent to refer the account to an arbitrator. In Arnold v. Webb, reported in a note to 5 Taunt. 432, assumpsit was brought to recover the balance of an account extending over thirty briefsheets closely written; and Dampier, J., though intimating his opinion that the cause could not be got through in five days, refused to dismiss it, but at length induced the parties to refer it. "In the case, previously cited, of Scott v. Macintosh, the defendant, with more cunning, refused to refer, and thus appears to have evaded payment altogether. In fact, the plaintiff in such cases is generally at the mercy of the defendant, for in numerous instances, in addition to those arising out of partnership matters, the rules of evidence at nisi prius do not admit of the same facility of proof as is permitted in the cases of reference to arbitration or to auditors in an action of account, or to a Master in Chancery. "Another and very important matter to be settled, in order to render the proceeding by way of action of account conducive to the ends of justice, is the regulation of the costs to which the respective parties should be entitled; for it is apparent that the judgment quod computet ought not of itself to entitle to costs the party seeking the account, should he afterwards turn out to be the debtor and not the creditor under it. "Justice seems to require, that if any balance be found due from the party called on to account, the law should remain as it is; viz., that judgment may be forthwith signed against him for the arrears and costs; but, on the other hand, if the balance be in favour of that party, the costs should be in the discretion of the court or a judge on a special application. "The revival of the action of account would of course put an end to the exclusive jurisdiction now exercised by the Court of Chancery in matters of account; but this would hardly affect the practical exercise of the Chancery jurisdiction, for the remedy would be, of course, confined to cases where nothing but a simple account between two parties was in issue, and the great boon to the suitor conferred by the change would be felt in cases 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., making the reference compulsory in certain cases; but it is easy to see under the regulations proposed by them, that an arbitration would be much more tedious than a reference to auditors. See p. 78, 2nd Report. "Were the remedy by action of account revived, and the auditors for the investigation of the account empowered to proceed like ordinary arbitrators, without the formalities of written pleadings and distinct issues on each particular partner called to account was not subjected to outstanding partnership liabilities; for in this case the ordinary jurisdiction of the Court of Chancery by way of injunction would be resorted to, to prevent, at all events, the actual payment of money found due to one partner, without allowing for such outstanding claims; and the same observation will apply to all other cases where the claims of third parties come in question. "In any regulations which might be made 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, (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 criminalshould 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 the auditors as to postponements, which, as now unfortunately permitted to Masters in Chancery and to arbitrators, but too frequently occasion a large increase of expense to the suitor, and unnecessary delay in the conduct of the suit." In noticing, some time ago, a very useful work on "Mercantile Accounts," by Mr. Alexander Pulling, we ventured to differ from him in the expediency of reviving the Action of Account; but we willingly give publicity to his views, and recommend our readers to weigh the arguments he has here ably set forth. As thus explained, the proposition is entitled to favourable consideration. We shall be glad to have the subject concisely discussed by such of our correspondents as are interested in it. The proposed alteration should be maturely canvassed before it is brought to the notice of parliament, and the suggestion is one on which the practical experience and judgment of solicitors should be particularly consulted. INDICATIONS OF FURTHER LAW REFORMS. AT the " gatherings together" which take place of the Constituencies to receive their new or old Representatives in parliament, we may sometimes discern signs, both of the popular and legislative feeling, in regard to future changes. "Coming events cast their shadows before." Amongst other notes of preparation for the next session, the following is not undeserving of observation. We have little doubt that the Court of Chan cery and the Ecclesiastical Courts will undergo much discussion, if not much change, in the new parliament, and this intimation from Mr. Buller, the Judge Advocate-General, is the more important from the weight and influence which his eminent talents and high character deservedly confer on his opinions. INSOLVENTS' PROTECTION, 7 & 8 ALTHOUGH it has now been decided by Toomer v. Gingell, that the final order of an insolvent, under 7 & 8 Vict. c. 96, protects his person only, and not future acquired property, it may be interesting to some of your correspondents to be informed of the following facts: In December, 1845, I signed judgment against a defendant for 207., and issued f. fa. The officer, on attempting to levy, was prevented by the messenger of the Bankruptcy Court and defendant's protection, he having filed his petition. Defendant scheduled my client for debt and costs, and obtained his final order. A few weeks ago, hearing that defendant had a well-furnished shop, &c., in Liverpool, I directed the sheriff of Lancashire to apply to his predecessor for the fi. fa., and send a fresh warrant thereon to a Liverpool officer, with instructions to levy. The officer levied accordingly, and defendant took out a summons returnable before Mr. Baron Platt, requiring plaintiff to "show cause why the officer should not withdraw and pay all costs, as the goods belonged to the official assignee,” (no Platt dismissed the summons with costs, and trade assignees had been appointed.) Mr.Baron defendant paid the debt and costs. 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 tember, the learned and honourable member, after going over all the main topics of political and social reform, adverted to that of the law. He said, "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 result. G. J. a The Mayor of Liskeard for the present year is a solicitor. County Courts Act.-Superior Courts: Lord Chancellor.-Rolls. COUNTY COURTS ACT. JURISDICTION OF BANKRUPTCY COM MISSIONERS. To the Editor of the Legal Observer. SIR,-I have read the letter of S. H. hereon in your number for the 25th September, page 503, and think that the question asked by "Tacitum" has not yet been correctly answered. S. H. is quite right in his view of the state of the law before the late act, 10 & 11 Vict. c. 102, for making alterations in the Courts of Bankruptcy and Court for Relief of Insolvent Debtors, by section 4, of which statute all powers, jurisdiction, and authority given to Courts of Bankruptcy and to the commissioners thereof by the Small Debts Act, 8 & 9 Vict. c. 127, is transferred to and vested in the Insolvent Court and New County Courts. 545 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 are advanced for supporting this demurrer, viz., want of equity, and multifariousness. The facts are stated to be these:-Various bills of exchange were drawn and accepted by the plaintiff, and delivered by him to the defendant Chadwick in the course of business during the existence of a partnership between them, for which bills it is said no consideration passed. Chadwick having endorsed one of them over to the defendant Nicholson, and the latter threatening to bring an action for the amount, the plaintiff filed his bill praying for an account between himself and Chadwick, and for an injunction to restrain Nicholson from bringing 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. I presume your corre- that this demurrer must be overruled. spondent S. H. had not read the late statute when he wrote you. Kolls Court. 1847. I am about applying for a summons under similar circumstances to the County Court Fenwick v. Greenwell. July 6th, 9th, and 12th, here, and should either of your correspondents still have any doubt upon the subject, I shall BREACH OF TRUST. -INDEMNITY CLAUSE. be happy to inform him the result of my case. G. P. W. RECENT DECISIONS IN THE SUPE- REPORTED BY BARRISTERS OF THE SEVERAL Lord Chancellor. Knill v. Chadwick. July 26, 1847. MULTIFARIOUSNESS. -CONTINGENCY.-INQUIRIES. Trustees are liable for the loss of trust funds If an entire case be made against one defendant, 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 Vice-Chancellor of England allowing a demurrer by a defendant named Nicholson to the bill for multifariousness. Another ground of demurrer, viz., for want of equity, was not argued. The facts of the case are stated in his lordship's judgment. the year 1807, to recover a certain sum of 5,000l. stock comprised in that settlement. This sum was alleged to be part of the residuary estate of a Mr. Henry Cuthbertson, to which Mrs. Fenwick, who was also Mr. H. Cuthbertson's executrix, was entitled as his residuary legatee. In fact no such exact sum 546 Superior Courts: Rolls.-Vice-Chancellor, existed; but there were, at the time of the execution of the settlement, three sums of stock, amounting altogether to 4,9647., part of the residuary estate of Mr. Henry Cuthbertson, standing in the name of Miss Cuthbertson. The trusts of the settlement were for the wife if she survived, but if she died in the life of her husband, for her children as she should appoint, and if no children, then as she should appoint, and in default of appointment, for the husband. The settlement contained a covenant on the part of Mr. Fenwick to join in the transfer, if it was made after the marriage, but no time was fixed at which the transfer should be made. It contained, also, the usual clause of indemnity to the trustees. No transfer was made of the stock in question, but it remained standing in the name of Miss Cuthbertson till the year 1816, and was then sold out at various times between that year and the year 1823, and applied for the benefit of Mr. Fenwick. Mr. Fenwick became bankrupt in 1833, and survived his wife, who died in July, 1837. The present plaintiff attained the age of 21 in 1841. Mr. Spence and Mr. Elderton, for the plaintiff, relied upon Booth v. Booth, 1 Bea. 125; Maitland v. Bateman, 13 Law Journal, 273; 8 Jur. 926; Caffray v. Darby, 6 Ves. 488; and Broadhurst v. Balguy, 1 Y. & C. 76. Mr. Roupell and Mr. Humfrey, for the representatives of the deceased trustee, and Mr. Kindersley and Mr. Faber, for the surviving trustee, argued, that in the cases cited, either the trustees had done some further act respecting the trust fund beyond merely executing the deed, or, by the terms of the settlement, they were bound to take steps to get in the fund at some defined period; neither of which circumstances existed in the present case. Here, also, until the death of the wife, it was uncertain who was entitled; therefore the trustees were protected by the indemnity clause. They also relied on certain statements in the answer of one of the defendants which tended to show that the sums of stock in question were subject to some unsatisfied claims under Mr. Cuthbertson's will, as, at all events, making a case for inquiry, all the contingencies of the trust, and could not say they would not do so because in a certain case the trust might not arise. The case of Maitland v. Bateman was not so strong as the present one; for there a time was fixed, until the termination of which the fund could not be secured; whereas, here, there being no limitation as to time, it might have been secured immediately. Then, as to the three sums of stock, what was there to lead to the supposition that they were not Mrs. Fenwick's They had been transferred into her name some time before the marriage. They remained standing in her name for many years afterwards: no demand was made upon them. Ultimately they were sold out at several times. It was the duty of the court to take care that trustees were not charged with omissions which could not be supplied, but it would not direct inquiries where no case of suspicion arose. It was alleged that there were some unsatisfied claims under a will of Mr. H. Cuthbertson, but no proof of this was adduced. He came, though with reluctance, to the conclusion that, to the extent of the 4,9467., the trustees were liable to make good the fund. Vice-Chancellor of England. CHARITY VOID FOR UNCERTAINTY. Where a testatrix, by her will, gave a certain annual sum for the use and benefit of the in-brothers and in-sisters for the time being actually and bonâ fide resident in the several hospitals of or in the vicinity of Canterbury. Held, that the bequest was void for uncertainty. THE question in this case was raised on the construction of a clause in the will of Mary Braddon, dated March, 1834; it was in the words following:-" And I also give and bequeath unto, and for the use and benefit of, the several in-brothers and in-sisters for the time being actually and bona fide resident in the several hospitals of or in the vicinity of the Lord Langdale said, it was undoubtedly a city of Canterbury, whose present yearly incase of great hardship that trustees should be come to each such in-brother and in-sister charged, after the lapse of so long a period, does not exceed the sum of 25l., an augmentawith funds which they had never received. tion or yearly income of the sum of 57. to the But upon the execution of the settlement, the use of every in-brother and in-sister for ever." duties of the trustees arose, and it became a And she directed her executors "to pay to, or question only whether they could perform the invest in the names of, the governors, masters, trusts; for though trustees were bound by trustees, or acting patrons of the several the trusts declared, they were not bound by the hospitals a sum of lawful money equal to meet recitals of the instrument declaring them. Per- such yearly augmentation; and the nonsons might represent themselves to be entitled resident in-brothers and in-sisters during such when in fact they were not, so that the per- non-residence should forfeit their, his, and her formance of the trust might be impracticable. proportion of such augmentation; and such It was said, that here, as no time was fixed for forfeitures and forfeiture should from time to geting in the fund, as it might have happened time be paid over to the then resident inthat there were no children and no appoint-brothers and in-sisters in equal shares." The ment by the wife, the trustees were not bound Master in his report had found that there were to provide for these contingencies. But he twelve hospitals at and in the immediate neighthought this argument could not be sustained: bourhood of Canterbury, taking in a circuit of he thought trustees were bound to provide for four miles. Superior Courts: Vice-Chancellor.-V. C. Knight Bruce.-Exchequer, Mr. H. Twiss, for the Attorney-General, now contended that effect ought to be given to the devise in favour of these hospitals, and that the court should put a construction on the rest of the clause; citing Masters v. Masters, 1 Pere Wms. 425. Mr. Bethell and Mr. Chandless, on behalf of some of the next of kin, argued that the whole clause was void for uncertainty. There must be both a certainty in the persons to take and in the thing to be taken, in order for the court to come to a decision. The persons to take were here to be residents in the hospitals in Canterbury or in the vicinity, and the disjunctive character of the gift deprived it of certainty. How could the court conclude what was meant by actual and bond fine residents? or how could it determine what was meant by the vicinity of Canterbury? There was nothing like certainty as to the objects to take, nor was there the means of attaining certainty. They cited Fillingham v. Bromley, 1 Turn. & Rus. 530; Ridgway v. Woodhouse, 7 Beav. 437; Attorney-General v. Sipthorpe, 2 Rus. & 107. Myl. Mr. Cooper and Mr. A. Lewis, for another of the next of kin, cited Chapman v. Brown, 6 Ves. 404. The Vice-Chancellor said, he was unable to make any sense of the will; the very foundation of the gift was to be found in the words "Hospitals of or in the vicinity of Canterbury;" and he could not understand what the testatrix meant by the vicinity of Canterbury, neither was there anything whatever in the will to show how the vicinity was to be measured. It was impossible for him to sit there and frame and conjecture a meaning for the testatrix. From the will, as it stood, no human being was capable of fixing so as to state in numbers what was the sum to be appropriated. How then could there be a valid gift? He should therefore hold the bequest void for uncertainty. Vice-Chancellor Knight Bruce. REFERRING EXCEPTIONS.- COSTS. A plaintiff who had not served the order referring the exceptions within the proper time, was refused a motion to discharge the order, or to take the exceptions off the file, and was ordered to pay the costs of the irregular service. Mr. Russell and Mr. Heathfield moved to discharge an order referring exceptions to an answer, and that the exceptions might be taken off the file, and that the plaintiff should pay the costs. The answer was filed on 29th of January, exceptions to it were filed on 23rd of February, and on 13th March the defendant was served with an order, dated 5th of March, referring the exceptions. The plaintiff was too late in thus referring the exceptions 26th Article of 16th Order of May, 1845, and this was the proper course to be adopted. AttorneyGeneral v. Clack, 1 Myl. & Cr. 367. 547 Mr. Miller, for the plaintiff, objected that the present application was unnecessary. As the exceptions were not referred in time, they should have been treated as abandoned, or any objection to them might have been heard before the Master. Dalton v. Hayter, 1 Phill. 551. The Vice-Chancellor. I never heard of exceptions being taken off a file because they were abandoned. Upon the authority of Dalton v. Hayter, I am of opinion that this order cannot be discharged, and that I cannot take the exceptions off the file. The costs occasioned by the exceptions after the service on the 15th of March, must be paid by the plaintiff. I give no costs on this motion. Exchequer. Semple v. Pink. Trin. Term, June 3, 1847. GUARANTEE.-CONSIDERATION.-FORBEAR- A declaration on a guarantee stated, that L. made his promissory note payable to the plaintiff that the note being in the plaintiff's hands dishonoured, in consideration that the plaintiff would forbear and give time to L. for payment of the note for a reasonable time, the defendant guaranteed payment. At the time the note was made the defendant wrote on the back of it,-" I guarantee the payment of the within note by J. Leigh, the maker, on the 2nd Nov. next." After the note was dishonoured, the defendant gave the plaintiff the following memorandum :-"I request yon will hold over the promissory note in your favour of J. Leigh, and in consideration of your so doing, I undertake to continue in all respects my guarantee of the same." Held, no evidence to support the declaration, and that the plaintiff was properly nonsuited. Semble, that the declaration was bad for stating the consideration to be forbearance for a reasonable time. THIS was an action on a guarantee. The declaration stated, that one Leigh made his promissory note payable to the plaintiff or order for 2001.: that Leigh did not pay the note, and the same being in the plaintiff's hands overdue and unpaid; in consideration of the premises, and that the plaintiff would give time to Leigh for payment, to wit, for a reasonable time, the defendant guaranteed the payment of the note in case Leigh should make default: that although a reasonable time had elapsed, yet Leigh had not paid the amount of the note. Plea non assumpsit. At the trial before Rolfe, B., it appeared that the plaintiff agreed to discount the promissory note for Leigh, if the defendant would guarantee Accordingly the dethe payment when due. fendant wrote on the back of the note as follows:-"I do hereby guarantee the payment of the written promissory note by G. J. Leigh, the maker, on the 2nd Nov. next. John Pink.” |