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On Imprisonment for Debt.

455 is either ignorant or suspicious. By bringing hole in a case which is frozen over as the penal statutes to his aid he is rendered remiss Baltic in the severest winter; or if any thing and negligent; he has the only effectual means that you can call hope steals across his counteof security in his own hand, and it seems highly nance, it is not that radiant glow which gives inexpedient that he should be taught to neglect pleasure to all who behold it-it is hope blasted them and to put his trust in prisons. It is with revenge-the hope of defeating his creditor, pretty evident, too, that the efficacy of impri- by having secured from that just and honoursonment in deterring individuals from running able payment, which but for these harsh prointo debt has been greatly overrated. Insol- ccedings he would have made, as much as will, vents who are honest must have suffered from by the use of that habeas corpus which should misfortune, or been disappointed in the hopes be free as air to all the people of England, pay they entertained of being able in one way or for “ six weeks within the walls,' fee an attorother to discharge their debts. The fear of ney and counsel, and let him come once more imprisonment does not greatly influence such into society, with a knowledge of the place persons, for when they contract debts they have where all that he may be able to get credit for no doubt of their ability to pay them; and in the next five years may be again washed off: though the imprisonment of bona fide insolvents! There are many, however, at whose misery not were abolished, it would give no encouragement an eye moistens, or the corner of a lip falls to the practice of those who endeavour to raise down, and in whose behalf not a finger is put in money by false representations, for these are to / motion; these are taken from their squalid and be regarded as swindlers, and ought as such to furnitureless habitations, or from their ample be subjected to adequate punishment.

dwelling in the public streets, as an ox is An individual known to have a large income, taken to the slaughter, and none heeds the and enjoying a proportionally extensive credit, while, to a common cell; and a felon's allowmay, if he go to Paris or Brussels, or confine ance would be plenty, and transportation elyhimself within the rules of the King's Bench, sium ; but those enjoyments are reserved for defraud his creditors of every farthing he owes the thief, the robber, and the murderer, and the them, without their being entitled to any part of simple and honest debtor is given over to a his fortune. All owners of funded, monied, more sad and suinmary fate. and copyhold property, have a licence given The licentious man of fashion, and the frauthem to cheat with impunity, and the only dulent person in trade, who goes there that wonder is, not that some do, but that a vast he may in two months time stock his shop with number more do not avail themselves of this goods that nobody can take from him, enter privilege ; in point of fact the power of impri- the lock-up-house with jocund steps, accost its sonment is operative only on the really neces-grim owner and keeper with looks of familisitous, or those from whom it can extract little arity and significant nods, spend their time or nothing. The rich debtor is seldom sub- gaily there, and when the form allows, take jected to its operation; he resorts, before a their departure for the great delivering house writ can be executed against him, either to the in St. George's Fields, there to carouse the continent or the rules, and then laughs at the term of their formal probation in wantonness impotent wrath of those he has defrauded, and and waste. perhaps ruined. That such a system of law But there are others to whom the lock-up. should be suffered to exist in a commercial house is a sepulchre, and the keeper the angel country is truly astonishing, and strikingly ex- of death ; who die there as a matter of course, emplifies the power of habit in reconciling us and about whom there is no farther enquiry, to most pernicious absurdities. These strange than whether the escape that they have been things make November the month of suicide; 1 fortunate enough to make from unparalelled and very many of those against whom coroners' woe, has been done by the determination of juries return verdicts of“ temporary derange- their own minds, or by any casualty of external ment,” are persons murdered by this system of circumstances : yes, there be those who enter law. For some weeks before Michaelmas term these dreary shades with nothing in the world the sheriffs' officers are seen flying about in all but one little crust of bread; and there are directions, causing misery and despair wher-places where charity-true charity of the ever they come ; and by the time that the day heart-cannot be expected to dwell, and where itself arrives, those pest houses, in which the public charity—that charity which “ does its last shilling is wrung from the sons of misfor-alms blowing a trumpet before it in the tune, are crowded in every part : all this hap- streets” — will not visit. They have no alterpening amid the murky fog, and the grim native, when their little crust is eaten, but to uncomfortable streets of London afford a pic-lay them down upon the cold earth, their ture at which the heart sickens, and misan- present support and their to-morrow's brother, thropy steals upon the gayest himself.

to lay them down and die there. This is no Nor is the scene, or are the circumstances exaggeration, no fiction of an idle fancy; or if amended, if you venture to look into any of the it be of an idle fancy, idle to remind the public courts or lanes in the vicinity. Nowhere do of what they before knew but did not heed) you find a brow unclouded, a cheek unfur- still it is true. rowed, or any eye unaffected by passion; the

W. N. G. debtor, with blanched brow and eyes of lead, pores upon mcuity in hopes of finding a loop

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456 Duty of the Profession during Law Reform:- Selections from Correspondence.

not, it is not my province now to con sider; THE DUTY OF THE PROFESSION

and even were I so inclined, the importance DURING THE PROGRESS OF of each proposition would require much more LAW REFORM.

attention than I have as yet been able to bestow on the subject.

I believe the fault at present generally found

with most professional men is, that they appear On reading the remarks of your able correspondent, “ 1.” on Conveyancing Practice,

quite indifferent to, or from dislike, do not

assist in forwarding the many bills now in my attention was drawn to a consideration of

vogue for law reform ; whatever may be the the duty of the profession at the present, when

cause of this, all professional men may be aslaw reform is not only wished for, but de

sured, that if they be actuated by the principles manded, by a great part of the community, as

above stated, such an idea will be soon obli. being absolutely necessary.

terated ; and, in short, a proper feeling be I most fully concur in his leading observa

entertained towards the body generally. tions on the propriety of the members of the

M. N. profession concurring heartily in promoting the operation of all measures passed, or to be passed, by making the necessary alterations in their practice, whereby the community may enjoy the intended advantages, as speedily as

SELECTIONS could be desired; to which I would add, that professional men should exercise their ability FROM CORRESPONDENCE. and utmost zeal in urging forward measures, that may tend to a better administration of

No. XXXIII. justice, or to strengthen the possession, and unencumber the transfer of real property.

It is also necessary that the profession should not he controuled by the desire which is cer

MUNICIPAL CORPORATION COMMISSION. tainly most predominant in the present day, of| legislating hastily, without considering the

To the Editor of the Legal Observer. disadvantages or perplexities that may arise, Sir, perhaps not immediately on the adoption of any A ROYAL COMMISSION having lately issued, measure, but which may be developed at a sub- upon an address being presented by the knights, sequent period; whereby of two evils the least citizens, and burgesses, &c., in parliament as. would have been to have adhered to the law sembled, to enquire into all “ Municipal Corposuperseded. Your correspondent observes, rations in England and Wales ;" and in the that the profession should not oppose those words of the commission, “ to collect informameasures which, I presume he thinks, must tion respecting the defects in their constitution; certainly pass. To this I must dissent. It and also to make inquiry into their jurisdictions being rather the duty of all classes of the pro- and powers, and the administration of justice, fession fearlessly to state their objections to and in all other respects; and also into the any particular measure, even to the last ; at the mode of electing and appointing the meinbers same time stating their opinions, why the ex- and officers of such corporations, and into the isting law should stand, or any alterations privileges of the freemen and other members thereof which, in their judgment, may be more thereof, and into the nature and management advisable than those proposed; for it is ob- of the income, revenues, and fines of the said viously their duty, as those to whom the public corporations, and to enquire into the several has intrusted the conducting of all their af local jurisdictions existing within the limits of fairs, which require the skill of persons learned all corporate towns in England and Wales, and in the law, to allow the following consider- with a power to examine the officers, &c..” but ation to have its due weight. That they are doubts existing as to the extent of the inquiry, not only at present called upon to aid in a and its definite meaning and power, will any beneficial law reform, but will, at a future day, of your numerous correspondents favour me if they now. act hastily, or are carried away by with their sentiments as to whether it includes, mere impulse, be looked upon with distrust, or in any manner relates to, the Trading Corand lose that confidence which is certainly porate Companies in London, or in any other now so generally reposed in them. Much of the large towns ? more commendable will it be to resist measures, I understand that one, if not several, corpo. which at a future day, or even at present, may rate bodies, not trading communities, but inbe fraught with evil, though frowns be the only vested with magisterial authority, have even recompense for such honorable conduct. Such refused inspection of their books and papers, I imagine to be the principles by which the or to conform in any manner to the enquiry, profession ought to be guided; and particularly under the direction of their legal advisers. · so, should any measures be introduced to ef

J. G. fect those changes which your correspondent advocates ; for undoubtedly they will effect a most inaterial change in the present practice. Whether such a change be advantageous or

Selections from Correspondence :-Superior Courts : K. B. Practice Court. 457

The article in the Legal Observer of Sept.
21, may be, as your introductory observations
seem to imply, open to objection; but my walk King's Bench Practice Court.
in the profession is of far too humble a grade
to allow me to offer an opinion ; I am there-

ATTORNEY.-RE-ADMISSION.-NOTICE OF fore bound to take the writer's opinions as well

APPLICATION. founded, until disputed by some equal authority.

In what case the notice of an attorney's intenBut this is irrelevant to my present object. tion to apply for re-admission, need not be The writer says, that “ if he thought the plans stuck up, during every day of the terin in which he advocates, would materially interfere

which he applies for re-admission. with the profits of the profession, he would not advocate it » This may be all very well, and I! On application for re-admission by an atshall not attempt to say any thing against it, / torney, it appeared that the notice of the atthough perhaps my own feelings may not ex- torney's intention was stuck up in the King's actly agree with it; but what I find fault with Bench office, at the opening of the office, on is, that although this gentleman shews so praise

contleman shews so praise the first day of term. The attorney had not worthy a regard for the interests of his pro- gone to the King's Bench office until after it fession, that is, if his plans were likely to was closed, on the day previous to the terın. interfere materially with the profits of those Taunton, J. The principle of the cases on members of the profession, the greater part of this point appears to be, that the term's notice, whom are, and the whole of whom ought to required by the rule, is inclusive of the day on be, in some degree, independent of their prac- which the notice is put up in the office.' In tice, he would not advocate them, he at the this case, therefore, as the notice was put up same time shews an utter disregard for that on the first day of the term in which the aprespectable, though humbler body of men-law plication has been made, a notice sufficient clerks; he says, speaking of the present ex- according to the spirit of the rule, has been pense of the practitioner, “If he had not so given; and therefore the attorney making the much copying to do, he must reinember he application may be re-admitted." would require fewer clerks." What then are Re-admitted.-Ex parte Pilkins, T. T. 1833. these poor clerks to do, who are to be thus K. B. P. C... thrown out of employ? Men, who have large families, solely dependent on their exertions the interests of these are not of the least consequence, but should the proposed reforin

Court of Eommou Pleas. materially interfere with the emoluments of already independent men, he would not advo- | CHANGE OF VENUE.-PRISONER.-LIBERTY. cate it. Is this philanthrophy? I do not mean to argue that any class of men

The venue may in some instances be changed, 'lave a right to live on abuses in the law, or

contrary to the practice of the Couri, in any thing else, to the detriment of the public; favour of liberty. far from it: let the abuses in the law (if there

In this case, which was an action on a bill of are any) be speedily remedied; but in doing so, 1 surely it will be but fair to attend in some little

te: exchange, a special jury was obtained by the degree to the interests of men solely dependent)

defendant. When the cause came on to be on their own exertions, and who by the medi

tried, a less number than twelve special jury

men appearing, it could not be tried, as a spetated changes will be deprived of the power of

cial jury cause, and both parties refused to pray exerting themselves : or at all events, their in

" a tales. The cause then stood over for the folterests have as much right to protection, as the

"lowing assizes. The defendant was then surinterests of those who are not dependent en

rendered by his bail, and he remained in custirely on their own exertions for their daily

" tody. An application was then made to the bread.

Court on his behalf, that the venue might be I ain emboldened to offer these remarks by

by changed from the county of Somersetshire, in the very kind and able manner in which you have always advocated our cause, --especially

1920, which it had originally been laid, to Middlesex, (as your influential pen alone has done) for pro

w on the ground that the defendant being a pri

soner, he would have to remain in custody curing us some very agreeable relaxations from

until the next assizes, unless by changing the the very heavy hours of business with which

venue the cause was tried in the mean time. we were formerly burthened, and for the great

The defendant offered to pay the extra costs assistance you have been to our society, per

consequent on a trial in town, his only object mit me, in the name of our whole body, to re

being that he might not be unnecessarily deturn you our sincere thanks, and to beg that you

tained a prisoner until the next assizes, when will not desert our cause, especially at a time

perchance when the cause came to be tried, a like the present, when from our humbler walk PE

Then he in life. we are not so able to take care of our / verdict would pass in his favour.

would he entitled to his discharge. own interests like the higher members of the

A CLERK. profession.

The Court was of opinion, that although the


Superior Courts : Common Pleas.

present application was quite contrary to the Spankie, Serj. was heard in support of the rules of the Court, yet as the liberty of the rule, and contended that the sheriff could not subject was concerned, the rule might be made safely pay over the proceeds of the sale to the absolute, the defendant undertaking to pay the plaintiff,' after receiving the notices served extraordinary expenses to which the plaintiff | upon him. The case must therefore be remight be put, in consequence of trying his garded as coming within the spirit of the act, cause in Middlesex.

the object of which was, that the officers enRule absolute, accordingly.-Keys v. Smith, gaged in enforcing the process of the Courts, T. T. 1833. Com. Pleas.

should be protected in the performance of their duties from the claims set up by third persons.

Per Curiam.- We think that the sheriff is not entitled to relief, merely quia timet. There

must be something done on the part of the alINTERPLEADER ACT. SHERIFF.- QUIA

leged claimants, which shews that they intend TIMET.

to enforce their claims against the property

seized. The mere mention of a claim is not a Actual cluims must be made, and attempts claim within the act. All we can do under the made to enforce them, in order to entitle circumstances is to discharge the rule. the plaintiff to relief under the Interpleader Rule discharged.—Isaac v. Spilsbury, T.T. Act.

1833, C. P. In this case, a fi. fa. had issued against the goods of the defendant, and the sheriff had seized under it at the suit of the plaintiff. After the seizure, notice was served on the SHERIFF.-INSOLVENT.-COGNOVIT.sheriff, that the goods seized were vested in

TROVER trustees, to the separate use of the defendant's wife. The defendant soon afterwards petitioned The sheriff is liable in trover for seizing the the Insolvent Court for his discharge, and ex the goods of an insolvent under a fi. fu., ecuted the usual assignment. The sheriff issued on a judgment signed on a cognohaving been ruled to return the writ, he ap vit, after the commencement of the insolplied to the Court under the 1 & 2 W. 4. c. 58. vent's imprisonment. $ 6, the Interpleader Act, for relief, and obtained a rule nisi, calling on the plaintiff, the This was an action of trover against the defendant's wife's trustees, and the provisional | sheriff of Surrey, to recover goods belonging to assignce of the Insolvent Court, to appear and the defendant under a fi. fa., issued on a judgstate their respective claims, and abide such mentsigned on a cognovit given by the defendant, order as the Court should think fit to make, and which judgment had been signed after the for adjusting those clains, and also for the stay defendant, who had become insolvent, had gone of proceedings, until those claims should be to prison, and before the assignment had been adjusted.

made to the provisional assignee. After the asOn the day given in the rule, neither the signment, notice was given to the sheriff not to provisional assignee, nor the trustees of the sell, but he persisted in the sale. At the trial, defendant's wife, appeared.

a verdict was found for the plaintiff, and a rule Anilreus, Serj.shewed cause against the rule, nisi afterwards obtained to set aside that veron behalf of the plaintiff in the action, and dict. contended that the present case was not one to Cause was afterwards shewn against that which the statute applied. The Interpleader rule. Act could not apply to those cases in which The Court referred to the words of 7 G. 4. claims were made by persons who showed c. 57. § 34, which were, “that in all cases they intended to enforce them. Here, how-where any prisoner shall petition the Court for ever, no such intention was manifested; claims relief under this act, shall have executed any were merely intimated, but nothing done which warrant of attorney to confess judgment, or shewed the claimants were at all in earnest in shall have given any cognovit actionem, whether what they did. They had not appeared to the for a valuable consideration or otherwise, no rule, and therefore they had given convincing person shall after the commencement of the proof that they had no idea of enforcing their imprisonment of such prisoner, avail himself claims. If such a course as this could be pur- or herself of any execution, issued or to be sued by the sheriff in such a state of facts, it issued, upon any judgment obtained or to be would be only necessary for any idle person, in obtained upon such warrant of attorney or any case where the sheriff had seized, to make cognovit actionem, either by seizure and sale of some supposititious claiin on the goods, and the the property of such prisoner or any part sheriff would be entitled to come to this Court, thereof, or by sale of such property theretofore entitle himself to pay the proceeds of the sale seized, or any part thereof; but that any perinto the hands of the officer, and then put the son or persons to whom any sum or sums shall plaintiff to the trouble of enforcing his claim by be due in respect of any such varrant of atà more circuitous process. This the Court torney or cognovit actionem, shall and may be a would never countenance, as it was quite beside creditor or creditors for the same under this the real intention of the act.

act.” In this case, after the imprisonment of the

Superior Courts: Exchequer of Pleas.


insolvent had commenced, the plaintiff did seek | was founded stated that the attorney had pub. to avail hiinself of a judgment on a cognovit, lished a libel, of a very aggravated nature, and therefore it is within the direct words of against the applicant, and had caused it to be the statute. The words of the act operate as a circulated generally. For this libel he had statutory supersedeas of the execution; and if brought his action, and the jury had given one the sheriff proceeds after notice of the assign- shilling damages. The present application was ment, he is liable in trover. Under these cir- therefore made for a rule nisi, calling on the cumstances we are of opinion that the verdict attorney to shew cause why he should not be ought to stand.

struck off the roll, on the ground of his having Rule discharged. — Groves v. Cowham and published the libel in question. It was adothers. T. T. 1833. C. P.

mitted that the applicant had not taken any criminal proceedings against the attorney on the ground of the application.

Per Curiam.-There does not appear to be

any instance in which the Court has interfered Erchequer of Pleas.

to strike an attorney off the roll, on the ground EJECTMENT.-HUSBAND AND WIFE.

of his having published a libel, for which an

action has been brought, and damages given, Service of declaration in ejectment. and no criminal proceedings taken for the On a motion for judgment against the ca- publication of that libel. The cases in which sual ejector, it appeared that the service was

the Court has so proceeded, are those in which on the wife of the tenant in possession ; but

the misconduct imputed has been committed the affidavit did not go on to state that the

| by the attorney in his character of attorney. service was effected on the premises, or that

Here, however, the misconduct in question has she lived with her husband.

no connexion necessarily with his character Per Curiam.That is not sufficient.

of attorney. The rule now prayed for cannot Rule refused.- Doe v. Roe, T. T. 1833. | therefore be granted. Excbeg.

Rule refused. — Ex parte Gregory, T. T. 1833. Excheq.

A special case cannot be turned into a spe-

cial verdict, unless power for that purpose
is reserved at the time of the trial.

If an allorney is party in a cause and acts

for himself at the trial, he is not entitled At the trial of this cause a verdict was taken

to an allowance on taxation, unless his for the plaintiff, subject to a special case. That

attendance appears to have been necessury. was afterwards argued before the Court, and a decision pronounced upon it. An appli On a motion to review the master's taxation, cation was afterwards inade to the Court by the following facts appeared. The action was the Solicitor General, to turn that special case brought by it stationer for the amount of his into a special verdict.

bill against an attorney who resided at Stafforil, Bayley, B. enquired whether any such power and defended in person. The venue was laid had been reserved.

in Middlesex. At the trial of the cause, the The Solicitor General admitted that no such defendant came to town with a witness, and reservation had been made ; but he contended ultimately obtained a verdict. He had emthat it was not necessary that any such should ployed an agent in the cause, and had attended be made. He conceived that the Court had the trial himself. The master, on taxation, full power to grant the object of his applica-only allowed the expenses of the witness. tion, of its own authority, without such a power The present application was therefore made being reserved.

to review the taxation, on the ground that the Bayley, B. said, that in the whole course of plaintiff, as a professional man, was entitled to his experience he was not aware of a single his allowance of a guinea a day; for if he instance of such an application.

had employed another attorney to act for him, Rule refused.–Archbishop of Canterbury v. that attorney would have been entitled to his Robertson, T. T. 1833. Excheq.

allowance; and the fact of the defendant having acted in person could make no difference in his claims.

The Court said, that as the attorney was a ATTORNEY.-STRIKING OFF THE ROLL. | party to the suit, he could not be entitled to LIBEL.

the allowance unless his attendance appeared

to be necessary. That was not the case, and It is not a ground for striking an attorney therefore the present application could not be off the roll, chut a verdict has been found

granted. against him, in an action for a libel of a lo Rule refused.-Leaver v. Whalley, T. T; very aggravated description.

1833. Excheq. On an application to strike an attorney off the roll, the affidavit on which the application

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