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556

Analytical Digest of Cases: Common Law Courts.-Letter Box. bound to join in demurrer until four days after Cases cited in the Judgments. It will be found demand. Cooke v. Blake, 33 L. O. 94. that the cases to which these notes are attached,

2. A defendant who obtained time to plead on the term of rejoining

within 24 hours, de-are generally of more importance than the rest. livered several pleas, to some of which the And the reference to those previous authorities plaintiff replied, concluding to the country, and will, no doubt, be of much use both to the to others he demurred. The plaintiff having practitioner and the student.] added the similiters and joinders in demurrer, the defendant struck them out. The plaintiff

THE EDITOR'S LETTER BOX. then obtained a judge's order, “that the defendant forthwith join in demurrer." On motion to rescind the order: Held, that the Reg. Gen. Hil. T. 4 W. 4, r. 3, qualified and

The next volume of the Legal Observer altered the Reg. Gen. H. T. 2 W.4, r. 108, will be further enlarged, in order to increase and that the plaintiff was irregular in adding the number and value of the REPORTS OF Rethe joinders in demurrer. Cooke v. Blake, 4

CENT Decisions, without curtailing any of D. & L. 313.

the Original Articles, or select Information, for Case cited in the judgment: Jones v. Key, 2 C. which the Work has been distinguished. & M. 340; 2 Dowl. 265.

The Contents of each Number will be are JOINT CONTRACTORS. Abatement. Pendency of action. In an

ranged as follows :action against one of several joint contrac

1st. Original articles on all projected alterators, the defendant cannot plead in abate- tions in the Law and Practice; - the state ment the pendency of another action for the of the Profession and measures for its imsame cause against another co-contractor; but he should plead in abatement the non-joinder

provement; New Statutes, with explanaof the joint contractor : and if a second action tory notes and disquisitions on their conbe brought against all, the pendency of the struction;-Parliamentary Bills, Reports and former action against the other joint con- Returns: --Notes or Commentaries on importtractor may be pleaded. Henry v. Goldney, ant Decisions in Common Law, Equity, and 4 D. & L. 6.

Conveyancing :-the Law of Railways, InsurAnd see Non-joinder.

ance, and other Joint Stock Companies :-ReJUSTIFICATION,

view of New Books :- The Law of Attorneys Bailiff of inferior court.-In trover, the de- and Costs, and the Examination of Articled fendant pleaded, that the supposed grievance Clerks :was committed after the passing of the 7 Vict.

Proceedings of Law Societies :c. 19, and within the jurisdiction of the inferior Legal Biography; Correspondence; Profescourt thereinafter mentioned ; and that, before sional Lists, &c. and at the time of the grievance, the defendant

2nd. Original and early Reports of every had been duly appointed to act as a bailiff in the execution of the process of the court of the important Decision in all the Superior Courts, Tolzey of Bristol, which then, and at the time by Barristers of the several Courts : – New of the passing of the said act of parliament, Rules and Orders of Court; — an Analytical had, by charter, jurisdiction for the recovery of Digest of all Reported Cases in all the Courtsdebts and damages in personal actions arising within the city and county of Bristol; and the classified according to the leading subjects addefendant then became and was, and thence- judicated upon ;-Cause Lists ;-Circuits ;forth until and at, &c., was a bailiff of the said Sittings; and every other information relating court; and that no notice of action was given to the business of all the courts. to him pursuant to the said act.

Held, on demurrer, 1st, that the plea brought the defendant within the protection of the 8th The further letters on the jurisdiction of the section of that act ; 2ndly, that the jurisdiction New County Courtsi,n summoning debtors of the inferior court was sufficiently shown; under unsatisfied judgments obtained previous 3rdly, that the defendant's duty as bailiff was to the passing of the New County Court Act, sufficiently set forth. Braham v. Watkins, 16 reached us too late for the present number, but M. & W. 77.

shall be attended to in the next. Case cited in the judgment : Hughes v. Buck- “S.” of Worcester is informed that the land, 15 M. & W. 346.

university degree, to be available in shortening And see Trespass, 1, 2.

the time of service under articles of clerkship,

should be taken before he was articled. [This Section of the Digest is sub-divided on

Communications for the Legal Almanac, account of its length. The remainder will ap-1848, should be sent, addressed to the Editor

,

Year-Book, Remembrancer, and Diary for pear in the next number. Our readers will ob- at. Messrs. Maxwell and Sons, 32, Bell Yard, serve that we continue to add a Statement of the Lincoln's Inn.

The Legal Observer,

DIGEST, AND JOURNAL OF

JURISPRUDENCE.

SATURDAY, OCTOBER 16, 1847.

“ Quod magis ad nos
Pertinet, et nescire malum est,' agitamus."

HORAT.

THE PUBLIC, THE PROFESSION, garded as a set of persons whom it is not AND THE COUNTY COURTS. simply allowable, but decidedly laudable,

to victimise. It has, therefore, become It is a remarkable fact, that while the the fashion to believe that the best way to profession has been almost silent under the improve the law is to degrade, and, as far injury and insult inflicted by the establish- as possible, exterminate its professors, ment of the New County Courts, the public until every man, acting as his own lawyer, has been clamorous against the working of has, in accordance with the proverb, “a a measure which was to bring justice home fool for his client.” This consummation to the door of every man with cheapness has been most materially advanced by the and expedition. We admire the philosophy, late County Courts Act, and the suitors and approve the policy, of our professional are beginning to find that the old saying is brethren, in leaving the community to find fearfully realized. It was not to be exout by experience the inconvenience and pected that the science of law could be hardship that must arise from the mode of rendered more simple or effectual by practice adopted in the new tribunals. It superseding those who have made it their would have been vain for the attorneys to study, any more than it could be hoped raise their voices against the deliberate in that the medical art would be advanced justice of taking from them a very large by discouraging the employment of the portion of that employment on the faith of physician. There would be a general which they have prepared themselves for outcry against a proposition to provide for their profesion at a considerable expense; the better preservation of the public health and were they to complain of the insult by inviting every man to doctor himself passed upon them by the wretched scale and become his own patient, yet when the of fees, according to which their services same principle is applied to the law, the are estimated under the new act, they absurdity is hailed as something approach. would meet with little sympathy. Their ing very nearly to the perfection of wisdom remonstrances would, of course, be attri- and enlightenment. buted to interested motives; for, although Notwithstanding the vulgar prejudice self-preservation is admitted to be the first which attributes mercenary motives to the of natural laws, which all men are bound professors of the law in their hostility to to obey, the lawyers themselves are not those rash and intemperate innovations allowed to do so, without their alleged ra. chat pass under the general name of pacity being denounced by an unjust and reform, we may declare, without fear of senseless clamour. The interests of all contradiction, that, as a whole, there is no other professions are admitted to be en- class of men so ready to forego their indititled to some consideration, but the body vidual advantage for the general benefit. of legal practitioners, who pay in admis- All the salutary changes that liave taken sion stamps and yearly certificates a much place; all the real amendments that have larger sum than any other class, are re- been introduced into our legal system

VOL. XXXIV. No. 1,023.

CC

558 The Public, the Profession, and the County Courts.Commercial Failures.
within the last few years, have been sug- fitable occupations are neglected, or they
gested by professional men, who have had employ professional assistance at their own
the general support of the whole body of private cost, or—worst alternative of all-
their brethren in every measure of actual place themselves in the hands of some of
improvement by which the public could those unauthorised harpies, to whom the
profit. There is something, therefore, new act gives ample encouragement. The
very illiberal in treating the opposition of public will not, and indeed cannot, act for
lawyers to certain measures of so-called themselves in the County Courts, without
legal reform as the result of sordid feeling, the most serious inconvenience and loss;
when the hostility shown towards new but, as the scale of fees allowed will not
schemes is in most cases dictated by a just remunerate respectable men, it follows as
perception of their total impracticability or an inevitable result that pettifoggers and
utter worthlessness.

pretenders will step in to take whatever
It is, perhaps, as well that the public they can get from the suitors who are
should now and then be made to feel the abandoned entirely to the mercy of these
inconvenient consequences of a delusion operators on their ignorance and helpless-
which the sufferers have fallen into with ness. The newspapers have already
wilful alacrity. Like the frogs in the fable, teemed with reported cases of hardship,
who complained to Jupiter without cause, besides numerous letters of complaint from
and obtained in succession a stork and a those who have experienced the working
log, the public will find in the County of this measure for bringing home justice
Courts Act the properties of both these to every man's door,-provided every man
gifts combined, for there are already loud can carry it home himself, which he is
complaints of the voracity with which about as able to do, in some instances, as
money is swallowed up in fees, and of the he would be to transport to his own abode
machinery proving an immovable log to the a quantity of heavy goods without the in-
suitors through their being deprived of tervention of a carrier.
professional assistance in working it. The
pretence of cheapness in the carrying out

COMMERCIAL FAILURES. of the new measure is found to be the hollowest of all hollow delusions, for the

AVOIDANCE OF THE act proceeds upon the ridiculously erroneous principle that a man must effect a COURT OF BANKRUPTCY. saving by acting for himself instead of paying another to perform for him the Since the first week in August, above service he requires. According to this forty commercial houses, placed by the doctrine, an individual having to send a magnitude of their mercantile transactions letter to Liverpool had better take it him in the first class, have unfortunately been self and save the postage,-a case which, compelled to suspend their payments ; though an extreme one, is analogous to the and singular as it might seem, up to the presumption of the framers of the County period when we write, in no instance have Courts Act, that suitors will be benefited we heard that the partners in any of the by appearing in person instead of delegat. insolvent firms have been made banking their business to a legal practitioner re- rupt. In ordinary cases, when a merceiving a fair remuneration for his services. chant or a tradesman avows himself to be

We cannot believe that the public will unable to meet his pecuniary engagepatiently submit to a burden that has ments, his name appears in the next already proved most vexatious in various Gazette under the List of Bankrupts, quite ways; and we therefore confidently expect as a matter of course. How the leviathans that in the ensuing session many of the of commerce escape from the meshes of evils of the County Courts Act will be the law, in which not only the dolphins, remedied. The hopeless absurdity of dis- but the minnow's, are inevitably cauglit, is pensing with legal assistance is already so a mystery productive of much speculative manifest, that this ruinous piece of experi- observation. mental quackery must be promptly got rid The course of proceeding by which the of. Already it is practically nearly at an end, Court of Bankruptcy has been avoided in

for men engaged in business either abandon the instances alluded to, is simple enough, E'S Pthe claims which they can only sustain and has become perfectly notorious. The

by hanging about the precincts of a County defaulters call their creditors together, lay Court for hours, during which their pro- before them a statement of assets, debts,

559

Commercial Failures - Avoidance of the Court of Bankruptcy. and liabilities, and it is agreed, without to such cases, either the constitution of more, that the affairs of the defaulting the tribunal or its administration must be house shall be wound up with the least defective. We fear it must be conceded possible delay, under an assignment to that the mode in which the Bankrupt trustees for the benefit of creditors, or Laws are administered is not satisfactory else what is called “ a deed of Inspection.” to the commercial community. There is A competent accountant is employed, an absence of uniformity in the decisions the assets, whatever they may be, col. of the commissioners upon many points of lected, and the amount distributed rateably grave importance. Leniency and severity amongst the creditors. The uniform are frequently meted out to bankrupts adoption of such a course of proceeding, in upon principles quite unintelligible to comnumerous instances, evidences the exist. mercial men. No one can predicate with ence of mutual confidence in a remarkable confidence in what tone and temper the degree amongst all the parties concerned. complaint of a creditor will be entertained, If the creditors of firms failing for large or the explanation of a bankrupt received. amounts entertained the slightest suspicion The arrangement of business in the several that there was any wilful mis-statement or courts is peculiarly inconvenient and obconcealment of the affairs of the insolvent jectionable to men of business, and the houses, or that any fraudulent preference expenses of working a fiat are constantly or appropriation of property was contem- complained of, as being altogether disproplated, it is not probable that they would portioned to the benefit derived in ordinary voluntarily relinquish the facilities afforded cases from the machinery which the court by the Bankrupt Laws for the investigation supplies. of a bankrupt's affairs, and the recovery of In reference to the expense of working property improperly withheld or trans- a fiat, we believe great misconception ferred. On the other hand, an insolvent prevails, and deem it more than doubtful who assigns the whole of his effects for the whether an estate of large amount could benefit of his creditors, must have a full be realized and divided under any system reliance on their liberality and honour, more economical. The sum of 301., paid when he depends on them for present pro- to the Accountant-General under the stat. tection and future indemnity, in preference 1 & 2 W. 4, c. 56, ss. 46 and 50, although to the legal protection and indemnity in- objectionable upon principle in every case, sured by a certificate of conformity under and operating most unfairly in cases where the Bankruptcy Acts. The prevalence of there are little or no assets, is comparasuch a feeling, at a period when so much tively an insignificant item when there is has occurred to shake commercial confi- an estate of magnitude to administer. We dence, is creditable to all parties concerned, have reason to think that the scale of reand affords matter for congratulation and muneration to official assignees is not prejust pride.

cisely the same in the courts of any two The high character for probity and commissioners; but we learn from a letter honour previously maintained by the seve- printed for private circulation during tire ral parties connected with the houses which present year, and addressed by Mr. Comhave recently fallen under a pressure of missioner Fane to the Secretary of Bankunparalleled severity, explains and ac- rupts, on the remuneration of official counts, perhaps, in some considerable assignees in Bankruptcy, that the average measure, for the different course pursued amount received by the official assignees in their cases, and adopted in other in- in that learned commissioner's court is stances, where men engaged in trade or about 24 per cent. ; but when the assets commerce have failed in their engage- to be divided exceed 25,0001., the remuments. We cannot escape from the con- neration is little more than one per cent, an clusion, however, that creditors and debtors amount which can scarcely be considered concur in thinking the affairs of bank- excessive, if the importance of the funcrupt houses of high character better and tions the official assignee is called upon to more advantageously administered by perform be fairly considered. As to the private arrangement than by an arrange- solicitor's bill of costs under a fiat in Bankment effected by law and carried out under ruptcy, it is subjected in every case to a the authority of a fiat in bankruptcy. If all rigid taxation, and usually falls short of concerned in a series of commercial failures, the amount to which a solicitor is entitled by universal consent decline to resort to for his services, when the affairs of a banka tribunal especially established with a view rupt house are wound up under a private 560 Commercial Failures.-- Avoidance of the Court of Bankruptcy.New Statutes. arrangement. The charges made by ac- it is expedient further to facilitate proceedings countants for remuneration in such cases under the said recited act in the cases herein. frequently, we understand, exceed the ag- after mentioned : Be it enacted by the Queen's gregate amount of the solicitor's bill, and most excellent Majesty, by and with the advice the per centage to which the official assig- and Commons, in this present parliament

and consent of the Lords spiritual and temporal, nee would be entitled, if the estate were assembled, and by the authority of the same, administered under the Bankrupt Laws. That where an action, suit, or difference shall

The reluctance to force defaulting houses be pending concerning the title of any manor, to the Court of Bankrnptcy, so far as it is land, or right or to an estate or interest therein, founded on an apprehension of the sup- definitions of the said act, be (in respect of

of which the actual owner would, under the posed expenses incidental to that course of procedure, we believe to be ill-considered. ested in land concerning which any application

such manor, land, or right) the person interThe other grounds of objection to that or proceeding may be made or be pending tribunal are, perhaps, not altogether under the said act, the consent of both the per visionary. Whilst thus glancing at them, sons between whom such action, suit or differ we should perhaps add, that commercial ence may be pending, to any application, inmen entertain a decided aversion to the pub- closure, or other proceeding under the said act, licity which attends nearly everything that

shall be as effectual as the consent of the actual

owner of the manor, land, or right, or of such occurs in the Court of Bankruptcy, and

estate or interest therein, would have been in case that persons who are so unfortunate as to no action, suit, or difference had been pending. fall into embarrassments, strain every nerve 2. Provision for the case of more than one to preserve themselves from what is called person claiming to be interested.—Provided althe exposure of passing through the court. ways, and be it enacted, That where, according There is certainly no legitimate reason

to the claim of a party to such action, suit, or why an honest man, in any rank of life, difference, more than one person would be or who conforms to the law, and submits to such manor, land, or right, such consent of

become interested as aforesaid in respect of the distribution of his effects by a court of such number or portion, or (as the case may competent jurisdiction, should feel that he require) such non-signification of dissent by can be injured by publicity. The preva- such number or portion of the persons who lence of such a feeling, however, is un- would so become interested, to the application, questionable ; and we repeat, that the in- inclosure, or other proceeding as would have disposition which debtors and creditors been sufficient in case such claim bad been mutually exhibit to avail themselves of the of the party so claiming under the provisions of

established shall be equivalent to the consent Bankrupt Laws must be ascribed, in a this act. great degree, if not altogether, to the ad

3. Saring rights of the Crown and others, to ministration of those laws, which is alike the soil of encroachments.--And be it enacted unsatisfactory to the commercial and trad. and declared, That where any lands shall have ing community, as to the legal profession. been inclosed, by way of encroachment or

otherwise, from any land subject to be inclosed

under the said recited act, for more than 20 NEW STATUTES EFFECTING ALTERA- years next preceding the day of the first meetTIONS IN THE LAW.

ing for the examination of claims in the matter of an inclosure under the provisions of the said

act, and shall not, with such consent as in the 10 & 11 Vict. c. 111.

said act provided, be directed by the valuer to An Act to extend the Provisions of the Act for land to be inclosed, neither the award, in the

be considered as allottable, and parcel of the the Inclosure and Improvement of Commons. inclosure under the provisions of the said act, [July 23, 1847.]

nor any consents or orders previous thereto, 1. 8 8.9 Vict. c. 118. Where the title to a shall be taken to divest, defeat, or prejudice manor, &c. is litigated, the consent of both any property, estate, right, or title of her Maclaimants to be equivalent to consent of an actual jesty or of any other person in or to the lands owner.

:- Whereas an act was passed in the ses- so inclosed for 20 years or upwards as afore sion of parliament holden in the 8 & 9 Vict. c. said, or the minerals or substrata under the 118, intituled “An Act to facilitate the In- same, or in or to any rent or payment payable closure and Improvement of Commons and in respect thereof (except only any rights of Lands held in common, the Exchange of common intended to be extinguished by the inLands, and the Division of intermixed Lands; closure under the provisions of the said act). to provide remedies for defective or incomplete 4. Exchanges may be made of land, excepting executions, and for the Non-execution of or reserving minerals and easements.—And be the Powers of general and local Inclosure it enacted, That where an exchange shall be Acts; and to provide for the Revival of made under the said act of lands not subject to such powers in certain cases :" And whereas be inclosed under such act, or of lands subject

COMMONS INCLOSURE.

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