Imprisonment for Debt.—Suggested Improvements in the Law. THE LAW. 403 'maxim that the province of our Judges is jus dicere, not jus dare. "To the laws," says SUGGESTED IMPROVEMENTS IN a talented writer, "the Judge, in his adjudications, must conform. He is the constituted organ of the legislative will, and is not at liberty to substitute his own revocable resoTutions in the place of that will, expressly proclaimed." e EXECUTOR'S ACCOUNTS.-SEARCHES FOR Sir, WILLS, &c. It is really surprising that it should have Having experienced considerable difficulty escaped the research of those gentlemen who lately, at the assizes, in an action against an have lately directed public attention to the administrator, in proving assets, I applied to subject under discussion, that the Court of the Legacy Duty Office with a view to subpoena Queen's Bench has already unfavourably de-a clerk, to attend with the defendant's account cided the question which is now so marvel- of the personal estate, but was told that it could Jously mooted. In the year 1770, some debtors not be done, and that the office was not at applied to the Court to obtain their enlarge- liberty to produce it. I shall be glad of any ment, apprehending they were, by Magna information on the subject. In a matter of Charta, and its many confirmations, entitled litigation, surely, every such account should to the freedom of their persons. The case be open to a creditor, and producible for the was first discussed at chambers, before Mr. purposes of justice. Justice Aston, and subsequently in Court; when it was eventually decided by Lord Chief Justice Mansfield, et per totam curiam, that parliament alone could afford relief to the parties. 1 To maintain that imprisonment for debt is illegal, while an enactment remains on the statute book authorizing it, is absurd; and it is equally erroneous to contend that Magna Charta prohibits parliament frotn altering the law of the land.d The power of parliament has s been to too frequently and too fully discussed to require any lengthened observations in proof of its omnipotence. "Its prerogative is so high and mighty in its nature, that it may make law, and that what is law it may make no law;"e and "it doth not belong to the Judges to judge of any act of parliament."f As what has been done by parliament can only be undone by parliament, it is to parliament therefore the debtors of the Queen's Bench should appeal. Petitions should be presented, Sir, early in the ensuing session, earnestly soliciting the abrogation of a law fraught with dire evil to society; a law repugnant to the dictates of humanity; a law which was deemed inconsistent with sound policy by the most celebrated nations of antiquity.s ALEXIS. Among other reforms, I submit to those members of the profession who are in parliament, the great utility of an alphabetical list of all wills and administrations at the commons, being prepared dictionarywise, which would save an immense labor in searches. The heads of the office who receive such enormous emoluments might lend their aid in such an object. A SOLICITOR. PRACTICE AT THE JUDGES' CHAMBERS. The suggestion of "A Subscriber," that one of the Masters should attend to relieve the Judges from the hearing of summonses, might to a certain extent be adopted with great advantage; but I think the duty of the Master should be limited to the hearing of such summonses only as involve questions of irregularity in practice, and for the granting of time to do any act or take any proceeding in the cause,a This would relieve the Judges of the greater portion of the summonses; and it is not disparaging those learned persons to say that the cases which I propose to refer to the Masters would be, upon the whole, disposed of by then in a manner more satisfactory to the profession than they are at present. The Master should have power to refer to the Judge at chambers such summonses as he might deem fit to be considered in that way. As to the others, there should, I think, be an appeal to the Court, as there is at present, to discharge Judges' orders. J. R. Athens by Solon, and with the Romans, Vell. Code, lib. vii, the whole claim was satisfied by the debtor giving up his goods, although their value was not sufficient to pay the entire debt. a This plan is already in practice in the Court of Chancery. The ordinary applica tions here mentioned are decided by the Masters. ED. For every private bill : For the several readings 0 10 0 3 13 4 To the Clerk Assistant. For every private bill For every private enacting clause, the And if the bill concerns a county For every hearing at the bar, from ..0 6 8 For attending committees of the whole 068 For every order of such committees. 0 5 0 For reading every petition in private matters 0 2 0 To the Clerk of the Committee of Elections. For attending the hearing the merits of the cause For drawing the report For a fair copy of the report for the 0 13 4 06 8 0 3 4 0 20 For the examination of a witness 0 0 For breviating, amendments, interlocutory orders, and other proceedings For the order of commitment For every enacting clause, the same fee as for a bill. And if the bill concerns a county, For every order upon motion or pe- 068 chairman. To the Chief Clerk without Doors. 4900 For every private bill. . . . . 0 10 0 And if a bill concerns a county, To the Serjeant : 0 6 8 For every private enacting clause, the 15 0 5 00 For taking a gentleman into custody. 3 From every knight of the shire when 0 10 0 From every burgess, upon such va cancy From every person sworn at the table, 068 For bringing a criminal to the bar 68 100 . 0 10 0 050 0 12 6 A 0 10 0 . 0 6 8 0 0 6 are, Correspondence.-Superior Courts: King's Bench. SELECTIONS FROM CORRESPONDENCE. RETAINER. DELIVERING SIGNED BILL. In answer to your correspondent A., at p. 372, ante, it is clear that the delivery of a signed bill to one of the four joint contractors would be sufficient, if delivered to the one who had the management of the business, or who gave the instructions. The words of the statute "That no attorney shall commence any action for the recovery of his fees until the expiration of one month after he shall have delivered unto the party or parties to be charged therewith, or left for him, her, or them, at his, her, or their dwelling house," not dwelling-houses ; a bill," not bills," of such fees," &c.; which shews that the legislature did not intend that a copy of the bill should be left at the dwelling house of each person who was jointly liable with others. The statute does not deprive the attorney of his common right of action, it only directs in what manner the action shall be brought. In point of law, the delivery of a bill to one of several joint contractors is a delivery to all, and is notice to all. E. cannot sue any one of the contractors for the whole amount due, the undertaking being joint, and not several. See Oxenham v. Lemon, 2 D. & R. 461; Crowder v. Shee, 1 Camp. 437; and Finchett v. How, 2 Camp. 275. R. S. C. DEBTS OF MARRIED WOMEN. Sir, In addition to the articles in the Legal Observer, as to the liability of a husband, I would suggest the case of a married woman under the following circumstances : A married lady who, having an income of 5001. per annum settled to her separate use under the will of her father, secretes the fact of her marriage, and incurs a debt, for which she gives her acceptance, at a time when her husband is resident out of the country. Can she be sued on her acceptance? and if so, can she avail herself of her coverture as an answer to the action, notwithstanding her separate income, and the misrepresentation to the party giving her credit? AN ARTICLED CLERK. 405 that the defendant has accepted such office and acted in discharge of its duties. A mere general statement to that effect is not sufficient. Sir W. Follett and Mr. R. V. Richards shewed cause against a rule for a quo warranto to be directed to the defendant as the mayor of Carnarvon, calling on him to shew cause by what authority he claimed to exercise that office. The affidavits on which the rule was obtained stated that he had not been duly elected, that there had not been any mayor to preside at the election, and that there were not any revised lists of voters, but that the defendant had since his election taken upon himself the office, and had acted as mayor. The first answer to be given to this application is, that no such application can be made unless the party against whom it is directed is actually usurping and exercising the authority of the office in question. That is not the fact here. The signature of the declaration required by the statute is the first actual evidence of the acceptance and assumption of office. On this point the affidavits on the other side are defective. They state only in general terms that the defendant was elected, and took upon himself to act and officiate as mayor, and has ever They do not shew in since acted as such. what manner he did so, and the statement is untrue. The affidavits in answer set forth that the defendant was elected mayor on the 9th of November last; that he was not present when such election took place; that the same took place without his knowledge or consent; that he has not since, in any way whatever, taken upon himself to act in the office, that he has not assumed to exercise its duties, and doth not claim nor intend to claim to exercise the same; but that, on the contrary, he hath declined and refused, and still doth decline and refuse, so to do. It is clear upon these affidavits that this application ought never to have been made. The defendant is liable to a penalty for not acting; and he cannot be liable at one and the same moment to a penalty of that sort and to an application by quo warranto for acting in the office. The affidavits on the part of an applicant in a case of this sort, ought to shew most distinctly that the defendant has acted. That is not shewn here, and the answer on the part of the defendant is complete. The rule must be discharged, with costs. The Attorney General and Mr. J. Jervis, in support of the rule.-If there is, as there is here, a clear allegation that the party has acted, and if there is no question made by him as to the validity of his title, he merely saying that he has declined to act, is not an answer to an application of this sort. The affidavits here state that he has taken upon himself to act, and has ever since acted as the mayor of such borough. The affidavits filed by the defendant appear to deny this stateThis case is therefore, at the best, one ment. of contradictory affidavits as to a fact which this Court will not determine upon affidavit, 406 Superior Courts: King's Bench; K. B. Practice Court. and the mandamus must therefore go. If the | sation, appealed to the Lords of the Treasury defendant lias not acted, he will be entitled to a verdict on the trial of the mandamus. The affidavits of the defendant, however, are not so strong in their form of denial as to amount to a positive contradiction of the affidavits for the applicant. They merely state that the defendant has done no act or thing which directly or indirectly amounts to an acceptance of the office." This is swearing not to a fact, but to the effect of the law, and the Court will not act upon such affidavits. The declaration may be signed at any time, and in a private room, so that the public may know nothing of it; and if this rule should be discharged, it may be signed at once, so as to save the penalty for not accepting the office. The case on the part of the applicant is not answered, and the rule must be made absolute. who also decided that he was not entitled to compensation, and then the present application was made to this Court. It appears too that the applicant was appointed to the office, in respect of which he now claims compensation, but a few days before the passing of the Municipal Corporation Reform Bill; and the Lords of the Treasury are stated to have been of opinion that he could not have had much expectation of profit from his appointment. Now the words of the statute are, that com pensation shall be granted, “regard being had to the manner of his appointment to the said office, and his term or interest therein, and all other circumstances of the case." If the Court was imperatively called upon to grant this rule, it is manifest that the compensation the applicant would receive, would be measured by the Lord Denman, C. J-We think that we lowest possible standard, because it is imposshould not act correctly in the exercise of the sible not to see that he could not have exdiscretion we possess, if we made this rule pected much, when he went into office; and absolute. The defendant here is sworn to have was not entitled to much on account of the been elected on the 9th of November. The short period during which he retained office. rule was obtained in this Court upon the 12th The Court therefore is of opinion that the of that month. Considering the distance be- mandamus ought not to issue; for as the tween Carnarvon and London, and the things applicant would merely be entitled to nominal to be done previous to the rule being obtained, compensation, it would be a waste of time, and it is clear that the information on which the a mere incitement to useless litigation to grant affidavits made on moving for the rule were the rule. The Court is also of opinion that founded must have been obtained two days be- the town council, and the Lords of the Treafore. What is there then on which the appli- sury were right in the decision at which they cant can venture to swear that the defendant arrived upon this case, and that this rule must has accepted the office and acted as mayor? therefore be discharged. It was not necessary We ought to have been told at the time what to enter into the question whether this Court this applicant meant, when he said that the can review what has been done by the Lords defendant had acted as mayor, had taken upon of the Treasury; and it is not its wish with himself the office, and had ever since exercised regard to this act of parliament, to bring into it. The applicant ought to have described to discussion more questions than are necessary, us the acts of the defendant, and not have con- Rule discharged.-The King v. The Corpotented himself, in a proceeding like the pre-ration of Lyme Regis, T. T. 1837. K. B. F. J. sent, with the use of general terms. The answer given here by the defendant is sufficient, with regard to such a slight prima facie case; and this rule must be discharged, and with costs. Rex v. John Morgun, T. T. 1837. K. B. F. J. MANDAMUS.-CORPORATION OFFICER. King's Bench Practice Court. SERVICE IN EJECTMENT. The Court will grant a rule nisi, when the tenant in ejectment is by mistake required in the notice to appear "in next Easter term," the date of the notice being 13th May, 1837, it being sırorn that it was explained that Trinity term was intended. Swann moved for judgment against the The granting of a mandamus to a tourn council, to give to a former officer of a corporation compensation for the loss of his office, is not a matter of right, but this Court will consider the circumstances in which his claim stands, and refuse the man-casual ejector. The notice to the tenant was damus, if the granting of it would only to appear in next Easter term, its date being occasion useless litigation. 13th May, 1837: but it was sworn that it was explained to the tenant that the object of the service was to require him to appear in Trinity term. Lord Denman, C. J., delivered judgment. This was an application for a mandamus, to be directed to the town council of Lyme Regis, commanding that compensation should be granted to the applicant, who held the office of town clerk there before the passing of the Municipal Reform Act. It appears from the affidavits that the party on whose behalf this rule was moved, made an application to the town council, and being refused any compen - Coleridge, J., granted a rule nisi. Superior Courts: King's Bench Practice Court; Exchequer. 1 i AMENDING PARTICULARS. The plaintiff's attorney having in the par2ticulars, by mistake, given credit for a sum claimed by the defendant, the Court will permit the particulars to be amended on terms. 407 that error in fact was not referred to by that enactment. Error in fact also did not come within the new rules. The plaintiff's proper course would have been to have applied for leave to take out execution. Rule absolute, no action to be brought.Levi v. Price, T. T. 1837. Excheq, il Henderson, on the part of the plaintiff, had obtained a rule nisi tor amending the particulars of the plaintiff's demand, which had PLEA of been delivered, and R. V. Richards shewed cause. It appeared that an account had been delivered by the defendant to the plaintiff's attorney, of certain claims which he alleged that he had upon the plaintiff, and when the attorney of the latter made out his particulars, he accidentally introduced the defendant's cross demand into them, and gave credit for its amount. The object of the present rule was to amend the particulars by striking out that sum; but it was urged that the plaintiff was bound by the statement of the account which he had delivered. An order which had been applied for at chambers had been refused. Henderson submitted that the plaintiff ought not thus to be injured by an accidental is. take, Coleridge, J., said that the rule might be made absolute on terms. The defendant must have fourteen days time to plead after the amended particulars were delivered. Rule accordingly.-Preston v. Whiteheart, T. T. 1837. K. B. P. C. GENERAL ISSUE UNDER SPECIAL ACT.-LEAVE TO PLEAD OTHER MATTERS. The defendants being a company incorporated by statute, had the power of pleuiting the general issue, and to give in evidence une der that plea the statute, and matter to shei”“ that the acts complained of were done in pursuance of and by authority of their sta tute. The Court, therefore, refused to permit them to plead, denying that the plaintiff was possessed of a reversionary interest which was alleged to be injured, and that the tenant named was the tenant, in addition to the plea of the general'issue. Shee moved for leave to plead several mat-, ters. It was an action on the case for injury done by the defendants to the plaintiff's reversionary interest in certain property, and the defendants desired to plead the general issue, besides certain pleas denying the plaintiff to be possessed of the reversion, as well as that the person alleged to be tenant was tenant.. A similar application had been made to Gurney, B., at chambers, but was refused by him. It was now pointed out that the defendants, who were a company, had a private act of parliament, which empowered them to plead the general issue in every action, suit or information, and under that to give the act and special matter in evidence at the trial, as well as that the act complained of was done in pursuance, of the provisions of the statute. The matters, sought to be pleaded, would not come within, this clause. The case of Neale v. M'Kenzie, I C. M. & R. 61, was alluded to, but it was urged that that case differed from the present. Here the form of the statute differed from that under which the general issue was usually alMunsel moved for a rule for setting aside a lowed to be pleaded, and the matters complained writ of fieri facias in this case for irregularity.of could not be said to have been done in A writ of error caram vobis had been sued out pursuance of, and under the authority of the on the 17th of February, and notice thereof act. was given to the plaintiff's attorney on the 22d. The plaintiff levied on the defendant's goods under the fieri facias on the 19th April, and the writ of error was allowed subsequently on the same day. The case of Birch v. Triste, East, 482, was cited as an authority that bail in error was not required in error coram vobis under the statute Exchequer. WRIT OF ERROR CORAM VOBIS. SUPERSE- A writ of error coram vobis, is not only a Error in fact, is not within the statute 6 Geo. 4, c. 96, s, 1, by which bail in error is required Lord Abinger, C. B., said that the defendants might elect which they would plead, the general issue or the special matters. Their position was not rendered worse by the new rules, for they could still plead the general issue, and before them these pleas could not have been pleaded. Alderson, B., said that the case was precisely Humfrey shewed cause, and urged that a that of Neule v. M'Kenzie, and that the general writ of error, since the rules of H. T. 2 W. 4, issue would put the matters in issue. If the s. 83, and H. T. 4 W. 4, s. 9, was a supersedeas defendants were permitted to plead special only from the time of its allowance, and not pleas as well as the general issue, the plaintiff from the time of the notice. Bail was ex-would be deceived, as he would suppose that pressly required in error by the 1 Geo. 4, c 96, the defendants meant to rely on the matters specially pleaded, and not to give evidence of any others under the general issue. s. 1. Parke, B, said that the statute last referred to, was in puri materia with that of James; and the case of Birch v. Triste, was a decision Rule refused.-Fisher v. The Thames Jungtion Railway Company, T. T. 1837. Excheq. |