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upon affidavits.


The Lord Chancellor's Bankruptcy Law Amendment Bill. cases a mere mockery. To remedy this, maliciously, the Lord Chancellor, upon it is now proposed to enact, that the petition of the person against whom the trader, upon appearance to the summons, fiat was taken out, may order satisfaction and refusal to admit the creditor's demand, to be made to liim for the damages susmay be required to satisfy the court that tained. We know not if it be intended by he has a good defence to such demand, and this provision to supersede the riglit of in case he shall fail to satisfy the court, action for maliciously suing out a fiat in the court may proceed as in cases where bankruptcy, but we cannot help thinking the trader debtor neither admits nor denies that, considering the multitude and imthe demand. When the trader debtor portance of the Lord Chancellor's duties, admits the demand, or fails to satisfy the the assessment of damages in such a case court that he has a good defence, the court might be advantageously left to a jury, and may require him to render an immediate greatly doubt if such a qustion could be account in writing of his stock in trade and satisfactorily determined other goods, and to enter into a bond with The clause, in our liumble judgment, might sureties for duly carrying on his trade, and be judiciously omitted. accounting for all property under his con

A summary power is given to arrest the trol, at the end of fourteen days. If the person, and also to seize the books, goods, trader debtor does not render the account &c., of any person against whom a fiat required, or enter into such bond, the issues, when it is proved to the satisfaction court may issue a warrant, empowering the of the court that there is reasonable ground person to whom it is addressed to cnter for believing that such person is about to the debtor's place of business and take 'quit England, or to remove or conceal any charge of his goods, and to continue in of his goods or chattels ;d but the party so such charge for such period as the court arrested may apply for his discharge forthmay appoint in that behalf. These pro. with, unless the petitioning creditor can visions will certainly introduce an impor- show good cause for his detention. Intant alteration in the law, and may afford stances occasionally occur in which the effective security against the fraudulent absence of any authority of this description disposition of property by dishonest affords an opportunity for the perpetration traders; but the clauses in which these of the grossest frauds upon creditors. This provisions are embodied will require mature clause, therefore, appears to be well deconsideration, for as at present framed, al- serving of attention. though the intention is manifest, the ma- The 193rd section contains a provision chinery for giving it effect is obviously de- which does not seem to be necessary, and fective and inadequate.

is in some measure unintelligible. It is in The Lord Chancellor's bill, after reciting these terms:the various acts of bankruptcy created by former statutes, enacts, that a trader not

“That if the assignees commence any action paying, securing, or compounding for a

or suit, for any money due to the bankrupt's

estate, before the time allowed by this act for judgment debt upon which the plaintiff the bankrupt to dispute the fiat shall have might sue out execution, or disobeying the elapsed, any defendant in any such action or order of any court of equity, or any order suit shall be entitled, after notice given to the in bankruptcy or lunacy, for payment of said assignees, to pay the same or any part money on a peremptory day fixed, after thereof into the court in which such action or fourteen days' notice, shall be deemed to suit is brought, and all proceedinge with have committed an act of bankruptcy.

respect to the money so paid into court shall A novel, and somewhat questionable, shall have elapsed, and if within that time the

thereupon be stayed, until the time aforesaid authority is proposed to be vested in the bankrupt shall not have commenced such Lord Chancellor, by the 183rd section of action, suit, or other proceeding as aforesaid, the printed bill. If the petitioning credi- and prosecuted the same with due diligence, tor's debt turns out not to be really due, the money shall be paid out of court to the or there is any failure in the proof that the official assignee, and that out of such money person against whom the fiat in bankruptcy court thinks fit to be paid to such defendant issued, committed an act of bankruptcy, for his costs and expenses, but otherwise shall

and was a trader at the time of the issuing abide the event of such action, suit, or other w Sof the fight, and it shall also appear that proceeding as aforesaid, and upon such event

suçtı, fiat was taken out fraudulently or shall be paid out of court, either to the official

See sections 151 to 256, inclusive.

Section 188, page 71, of printed bill.

The Lord Chancellor's Bankruptcy Bill.Remedy for the Recovery of Small Tenements. 67 assignee, or to the person adjudged bankrupt, under a fiat issued in the trader's life. as the court shall direct, and that after such These provisions appear to afford a satispayment so made into court, it shall not be factory remedy in cases in which the existlawful for the person so adjudged bankrupt to proceed against the defendant for recovery of ing law is avowedly defective. the same money."

We shall only add, that as the new bill

proposes greatly to extend the authority We incline to think that there is some exercised by the commissioners in bankomission, possibly a typographical error, in ruptcy, and to invest them with an enthe latter part of the clause. In its present larged discretion, it is of the utmost imshape it is difficult even to guess at what portance that the court should be placed is meant to be enacted.

on a different footing, and powers so forThe intention of the following clause is midable subjected to an effective control. sufficiently intelligible, but we question The bill now under consideration, it will whether it is expressed with sufficient be observed, is wholly irrespective of the clearness and certainty to enable the court law relating to insolvents; but we underto give it practical effect. It enacts

stand the Lord Chancellor is about to in“That if any bankrupt, being at the time introduce a separate measure on that subsolvent, shall (except upon the marriage

ject, and that when this has been done, the his children, or for some valuable considera. Bankruptcy Bill, the Insolvency Bill, and tion) have conveyed, assigned, or transferred the bill introduced by Lord Brougham, are to any of his children, or any other person, any all three tu be referred to a select comhereditaments, offices, fees, annuities, leases, or mittee of the house of Lords. goods, or have delivered or made over to any such person, any bills, bonds, notes, or other securities, or have transferred his debts to any

REMEDY FOR THE RECOVERY OF other person, or into any other person's name,

SMALL TENEMENTS.-COUNTY the court shall have power to order the same to

COURTS ACT. be sold and disposed of as aforesaid, and every such sale shall be valid against the bankrupt

The doubt we ventured to express, as and such children and persons as aforesaid, to the courts holding that the Small Debts and against all persons claiming under him.”

Act, repeals the statute 1 & 2 Vict. c. 74, If it be proposed that the Court of under which justices in petty sessions are Bankruptcy shall have power summarily to empowered to issue warrants of possession determine whether any assignment, trans- in regard to tenements not exceeding 201. fer, or gift, made by a person who after- in value, has occasioned several commuwards becomes bankrupt, is void as against nications from country correspondents, by creditors, this should be specifically de- whom the question, as might be supposed, clared, and suppose the property or secu

is deemed of considerable importance. rities to be in the hands of the assignee or

Since the subject was last noticed in this donee, some mode should be pointed out by publication, our attention has been directed which the assignees of the bankrupt may to a case laid before Sir Frederick Thesiger, obtain possession before proceeding to a with that learned gentleman's opinion, sale. If the bankrupt's assignee is com- which in the result is confirmatory of the pelled, in the first instance, to try the view already suggested. The opinion is holder's title by an action of trover, this in these terms:-section will be in a great measure nu- “ There is nothing in the 9 & 10 Vict. c. 95, gatory.

which repeals the 1 & 2 Vict. c. 74; on the The bill, towards its close, contains a contrary, it appears to me that there is that in series of clauses, indicating the course of it which is almost equivalent to an exception. procedure to be adopted when a trader

“The plaint is to be of personal actions, dies and no legal personal representative of possession of premises ; but in the 58th

which of course does not include the recovery is constituted within one month. In such section, there is an express exception of actions case, upon petition, and after notice left at of ejeciment. Now, the summary remedy the last place of business or residence of given by the 1 & 2 Vict. c. 74, is a lieu of the the deceased trader, a fiat may issue, under proceedings by ejectment; and therefore it apwhich the messenger will be empowered pears to me, both negatively and positively, by warrant to take charge of the goods of that the jurisdiction of the justices under that the deceased trader ; and if a legal per

act is not taken away.

' FREDERICK THESIGER. sonal representative be not constituted

Temple, 13th April, 1847.within two months, the official assignee may take out administration and proceed as

- See ante, p. 17.

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68 Remedy for the Recovery of Small Tenements.- Construction of Statutes.

Agreeing in the main with Sir Frederick occurred since the days of Lord Chief Thesiger's construction of the Small Debts Justice Holt. That eminent judge held, Act, we must frankly state, that it does not that a promissory note had no intrinsic vaseem to be deserving of all the weight to lidity and that it only operated as evidence which it would fairly be entitled, if it of a debt between the immediate parties clearly appeared, that the learned gentle- to it. Before his time, however, promisman's attention had been expressly di- sory notes were found to be extremely rected to the 6th and 122nd sections of convenient instruments for the purposes or the 9 & 10 Vict. c. 95. The difficulty, as internal trade, and the mercantile comwe have already had occasion to observe, munity were so much startled by the dearises chiefly upon the construction to be cisions of the courts restraining their put upon the 6th section, which enacts :-operation, that an application was made to

the legislature, and the statute 3 & 4 Anne, “ That any act of parliament heretofore passed, so far as the same respectively relate to c. 9, passed, which, after reciting the great or effect the jurisdiction and practice of the advantages that would be derived by put. courts so established, or give jurisdiction to ting promissory notes on a footing with any court or to any commissioner of bank-bills of exchange, and referring to the deruptcy, with respect to judgments or orders cisions of the courts already alluded to, obtained in the courts so established, shall be proceeded to enact :-repealed.”

“That all notes in writing that shall be made Now it is impossible, as we subnit, to and signed by any person, bodies, &c., whereby contend, that the jurisdiction conferred on such person or body shall promise to pay to the judges of the county courts with regard any other person or body, or their order, or to small tenements under the 122nd sec

bearer, a sum mentioned in such note, shall be tion, is not affected by the act 1 & 2 Vict. construed to be by virtue thereof payable to

such person or body to whom the same is made c. 74, but the 6th section, according to our payable; and such note payable to any person reading, does not go so far as to repeal all or body shall be assignable over as inland bills acts affecting the jurisdiction of the New of exchange, according to the custom of merCounty Courts, but only such acts as re- chants; and the person or body to whom such late to or affect the jurisdiction of the sum by such note is payable may maintain an County Courts," with respect to judg. signed the same, as in cases of inland bills; ments or orders obtained in those courts.

and If this construction of the stat. 9 & 10 assigned by indorsement thereon may maintain

any person or body to whom such note is 95, be correct, there is no reason his action against the party who signed the why the justices in petty sessions, under same, or against any indorser thereof, as in the 1 & 2 Vict. c. 74, and the judges of cases of inland bills.” the County Courts under the 9 & 10 Vict. There can be little doubt that it was the c. 95, should not exercise a concurrent intention of the framers of this clause to put jurisdiction as regards tenements of a value promissory notes on the same footing in all not exceeding 201. When the value of the respects as bills of exchange. The case tenement is above 201. and not exceeding first referred to, apart from other questions, 501., the justices have no jurisdiction, and raises a doubt whether the act completely the County Court judges have an exclusive effectuates the object of its framers. jurisdiction. By giving this limited opera- Flighi v. Maclean was an action by an tion to the repealing clause, much difficulty indorsee against the maker of a promissory will be avoided.

note for 500l.; and the declaration, in de

scribing the note, alleged that the defendCONSTRUCTION OF STATUTES. ant thereby proinised to pay to the order

of defendant, 5001., two months after date, PROMISSORY

and that the defendant then indorsed the Maker's OWN ORDER,

Be same to the plaintiff. To this declaration

there was a demurrer, on the ground that A decision of the Court of Exchequer not a legal instrument, and could not be

a note payable to a man's own order was lias lately been reported,' which, if it should be followed by the other courts,

negociated. will do more to affect the negociability of tended, that it was essential to the validity

In support of the demurrer it was conpromissory notes than any case which has

& See Clarke v. Martin, 2 Lord Raym. 757; Flight v. Maclean, 16 Law J. 23 Exch. S. C. 1 Salk, 129; Buller v. Cripps, 6 Mod. 29.'

Vict. c.








Construction of Statutes.The Metropolitan and Provincial Law Association.

69 of the instrument that it should show in held on the 18th instant. The following is whose favour it was made, and as no other the substance of that statement : person was mentioned in the note as payee “The council, in the latter part of last year, but the maker, there was no contract at soon after the passing of the Small Debts Act, all, and the instrument was void."

were requested to co-operate with the ProThe Court, (consisting of Barons Alder- vincial Law Societies in adopting measures for son, Rolfe, and Plau,) determined in favour the improvement of the profession, and the of the demurrer, on the ground that the furtherance of its interests, by establishing a instrument was not a promissory note

New Association composed of Provincial as well within the statute of Anne, which required proposition, it may be proper to remind the

as Metropolitan Solicitors. In reference to this such an instrument to be made payable by members that the Incorporated Law Society the party making it to some other person, was instituted under a deed of settlement, in or the order of some other person, or to 1827, and obtained a charter in 1831 ; that it bearer. Judgment was therefore given on commenced by establishing an extensive law this count of the declaration for the de- library, and founding courses of lectures on all fendant.

the great branches of law and practice; that, Upon the authority of this case, rules gated to the governing body of the society the

in 1836, the judges of the superior courts delehave subsequently been granted in other important duty of examining all persons applycourts, involving a similar question, and ing to be adı.itted on the roll of attorneys,-a when these rules come to be decided, the test of fitness which prevailed in early times, point, no doubt, will be definitively settled. but had long fallen into disuse. This duty, Considering the quantity of paper circulat- thus confided to the society, appears to have ing throughout the country, under the been well and faithfully discharged, for in same circumstances as the note in question, amination was made permanent by act of par

1843, a few years afterwards, this mode of exit is of the utmost importance that the at- liament, and the society was appointed Registrar tention of the public and the profession of attorneys and solicitors. Shortly after this should be directed to the subject. What- period, a new charter was obtained, and the ever may be the true construction of the members at large generously surrendered their statute, it is certain that promissory notes individual rights of property for the benefit of payable to the maker's own order lave for the corporate body.

Considering the position of this society, it is some time been commonly used, and the

no matter of surprise, therefore, that the reobservations of text writers, in reference spectable and influential law societies through, to notes of this description, have not tended out the country should look to this chartered to excite any suspicions as to their validity. institution for its assistance in supporting the

just claims of the attorneys and solicitors, and INCORPORATED LAW SOCIETY._ its co-operation in any measures for the further METROPOLITAN AND PROVIN.

improvement of that branch of the profession.

* The council were consequently invited to CIAL LAW ASSOCIATION. lend their aid in forwarding the objects of the

proposed association. But although the objects Many of the objects stated in the ad

of that association appeared to accord with dress of this association being compre, was founded, yet as they proposed to extend

many of the purposes for which this society hended within the plan of the Incorporated their aims to others, which however valuable Law Society, some of our subscribers have in themselves, were not contemplated by the inquired whether there has been any dif- charter, the council felt themselves compelled ference of opinion amongst the members to decline the proposal. of the profession, many of whom belong to

“ The council, moreover, entertained the both associations, and why it is that the fined within the range of their chartered powers,

opinion, that by holding a course strictly conIncorporated Society should not undertake they might be able more effectually to promote all the measures proposed by the Metro- the interests of the association, and through politan and Provincial Society?

them of the profession. The council are gratiThe most satisfactory answer to these fied in knowing that this view of their duty inquiries will be found in the statement and the decision to which it led, have met with made by the Council of the Incorporated the approbation of members of the profession Law Society, at the annual general meeting distinguished for their experience and sound

judgment. The principal cases cited were, De la Chau

In the meantime the Metropolitan and Promette v. The Bank of England, 9 Barn. & Cres. vincial Law Association has been prosperously 208 ; Smith v. Kendall, 6 Term R. 123.

established, and so far as this society can useSee Chitty on Bills , 9th ed. 516; Byles on council will be always ready to assist their bre

fully and properly afford its co-operation, the Bills, 3rd ed. p. 44.

thren incarrying out their important objects.”


70 Review : Hodges's Law of Railways.- Taxation of Parliamentary Costs. NOTICES OF NEW BOOKS. 301), given forms in accordance with this

latter section. We are not aware of any The Law of Railways and Railway Com- other work in which this point has been

panies. By William Hodges, Esq., hit; and in this and many other respects Barrister-at-Law. Sweet, London, 1847. we are glad to give a hearty commenda

tion to the very elaborate and systematic This is the last, and appears to us the best, work before us. publication on the highly important subject of which it treats. Without in the slight- NEW BILLS IN PARLIAMENT. est degree detracting from the merits of its numerous predecessors, we have no hesitation in expressing our strong approbation of the pains successfully bestowed

We submit to our readers the Bill for upon this work. It appears to us equally establishing a Taxation of Costs on Private practical, elaborate, convenient, accurate,

Bills. and complete; and as such, calculated to It follows many of the provisions in the Atbe very valuable to practitioners, either torneys and Solicitors' Act, 6 & 7 Vict. c. 73, before committees of parliament, or courts but the taxing officer to be appointed under of law or equity, and in the courts of asses- the 3rd section should be an attorney or sosors, and before justices, in compensation licitor of 12 years standing, as are the taxing cases. The numerous “ forms relating to masters in Chancery. compensation cases” are very carefully It recites the 6 Geo. 4, c. 123, and proposes drawn and will be found extremely useful; and one of them is worthy of special notice

to amend it, and make more effectual provision on account of its importance, and its se

for taxing the costs and expenses charged by curing an advantage to complainants of parliamentary agents, attorneys, solicitors, and compensation, of which they are often not others, in respect of bills subject to the payaware. Our readers are aware, that under ment of fees in parliament, commonly called the Lands' Clauses Consolidation Act, private bills, and incurred in complyiny with the (stat. 8 Vict. c. 18, s. 38,) the promoters standing orders of the House of Commons relaof a railway are to give notice before sum- tive to such bills, and in preparing, bringing in, moning a jury, of “the sum of money and carrying the same through, or in opposing which they are ready to give for the inter- the same in the House of Commons. est of the owners; in lands sought to be purchased, and for damage to be sustained by

1. Repeal of 6 Geo. 4, c. 123. him by the execution of the works ;” and act, no parliamentary agent, attorney, or so

2. That from and after the passing of this under s. 49, the jury are to find their licitor, nor any executor, administrator, or asverdict separately for the sum due in re- signee of any parliamentary agent, attorney, or spect of the purchase of the land, and for solicitor, shall commence or maintain any the compensation for the damage sustained action or suit for the recovery of any costs, by severing such land from other land of charges, or expenses in respect of any proceedthe owner, or otherwise injuriously affect- ings in the House of Commons relating to any ing such land ;and it is under this sec- respect of complying with the standing orders

petition for a private bill, or private bill, or in tion that notices and warrants are usually of the said house relative thereto, or in predrawn, even when the bulk of the claim is paring, bringing in, and carrying the same in respect of compensation for damage done through, or opposing the same in, the House independently and irrespective of the land; of Commons, until the expiration of one month viz., for injury to or destruction of a busi. after such parliamentary agent, attorney, or ness carried on upon the premises, by some of such parliamentary agent, attorney, or so

solicitor, or executor, administrator, or assignee person other than the owner. Under the licitor, has delivered unto the party to be above clause, it is very difficult to say how charged therewith, or sent by post to, or left the jury could entertain the claim : but for him at, his counting-house, office of busiunder the Railway Clause Consolidation ness, dwelling-house, or last known place of Act, (stat. 8 Vict. c. 20, s. 6,) there is no abode, a bill of such costs, charges, and exquestion on the subject. That section is penses; and which bill shall either be subfar more extensive than the other, and suf- scribed with the proper hand of such parliaficiently extensive in its terms to compre- case of a partnership, by any of the partners,

mentary agent, attorney, or solicitor, (or in the hend any kind of damage sustained by any either with his own name or with the name of person by reason of the execution of the such partnership,) or of the executor, adminis

Mr. Hodges has, therefore, (pp. 298, trator, or assignee of such parliamentary agent,

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