On Imprisonment for Debt. is either ignorant or suspicious. By bringing penal statutes to his aid he is rendered remiss and negligent; he has the only effectual means of security in his own hand, and it seems highly inexpedient that he should be taught to neglect them and to put his trust in prisons. It is pretty evident, too, that the efficacy of imprisonment in deterring individuals from running into debt has been greatly overrated. Insolvents who are honest must have suffered from misfortune, or been disappointed in the hopes they entertained of being able in one way or other to discharge their debts. The fear of imprisonment does not greatly influence such persons, for when they contract debts they have no doubt of their ability to pay them; and though the imprisonment of bona fide insolvents were abolished, it would give no encouragement to the practice of those who endeavour to raise money by false representations, for these are to be regarded as swindlers, and ought as such to be subjected to adequate punishment. 455 hole in a case which is frozen over as the Baltic in the severest winter; or if any thing that you can call hope steals across his countenance, it is not that radiant glow which gives pleasure to all who behold it-it is hope blasted with revenge-the hope of defeating his creditor, by having secured from that just and honourable payment, which but for these harsh proceedings he would have made, as much as will, by the use of that habeas corpus which should be free as air to all the people of England, pay for "six weeks within the walls," fee an attorney and counsel, and let him come once more into society, with a knowledge of the place where all that he may be able to get credit for in the next five years may be again washed off: There are many, however, at whose misery not an eye moistens, or the corner of a lip falls down, and in whose behalf not a finger is put in motion; these are taken from their squalid and furnitureless habitations, or from their ample dwelling in the public streets, as an ox is taken to the slaughter, and none heeds the while, to a common cell; and a felon's allowance would be plenty, and transportation elysium; but those enjoyments are reserved for the thief, the robber, and the murderer, and the simple and honest debtor is given over to a more sad and summary fate. their departure for the great delivering house in St. George's Fields, there to carouse the term of their formal probation in wantonness and waste. An individual known to have a large income, and enjoying a proportionally extensive credit, may, if he go to Paris or Brussels, or confine himself within the rules of the King's Bench, defraud his creditors of every farthing he owes them, without their being entitled to any part of his fortune. All owners of funded, monied, 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 writ can be executed against him, either to the continent or the rules, and then laughs at the impotent wrath of those he has defrauded, and perhaps ruined. That such a system of law But there are others to whom the lock-upshould 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; 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 happening amid the murky fog, and the grim uncomfortable streets of London afford a picture at which the heart sickens, and misanthropy steals upon the gayest himself. Nor is the scene, or are the circumstances amended, if you venture to look into any of the courts or lanes in the vicinity. Nowhere do you find a brow unclouded, a cheek unfurrowed, or any eye unaffected by passion; the debtor, with blanched brow and eyes of lead, pores upon vacuity in hopes of finding a loop streets"-will not visit. They have no alter- 456 Duty of the Profession during Law Reform :— Selections from Correspondence. THE DUTY OF THE PROFESSION not, it is not my province now to consider; and even were I so inclined, the importance of each proposition would require much more attention than I have as yet been able to bestow on the subject. M. N. I believe the fault at present generally found ON reading the remarks of your able corwith most professional men is, that they appear respondent," I." on Conveyancing Practice, assist in forwarding the many bills now in quite indifferent to, or from dislike, do not my attention was drawn to a consideration of the duty of the profession at the present, when Vogue for law reform; whatever may be the law reform is not only wished for, but de-sured, that if they be actuated by the principles cause of this, all professional men may be asmanded, by a great part of the community, as above stated, such an idea will be soon oblibeing absolutely necessary. I most fully concur in his leading observa-terated; and, in short, a proper feeling be entertained towards the body generally. tions on the propriety of the members of the 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 could be desired; to which I would add, that professional men should exercise their ability and utmost zeal in urging forward measures, that may tend to a better administration of justice, or to strengthen the possession, and unencumber the transfer of real property. It is also necessary that the profession should not be controuled by the desire which is certainly most predominant in the present day, of legislating hastily, without considering the disadvantages or perplexities that may arise, perhaps not immediately on the adoption of any measure, but which may be developed at a subsequent period; whereby of two evils the least would have been to have adhered to the law superseded. Your correspondent observes, that the profession should not oppose those measures which, I presume he thinks, must certainly pass. To this I must dissent. It being rather the duty of all classes of the profession fearlessly to state their objections to any particular measure, even to the last; at the same time stating their opinions, why the existing law should stand, or any alterations thereof which, in their judgment, may be more advisable than those proposed; for it is obviously their duty, as those to whom the public has intrusted the conducting of all their affairs, which require the skill of persons learned in the law, to allow the following consider ation to have its due weight. That they are not only at present called upon to aid in a beneficial law reform, but will, at a future day, if they now, act hastily, or are carried away by mere impulse, be looked upon with distrust, and lose that confidence which is certainly now so generally reposed in them. Much more commendable will it be to resist measures, which at a future day, or even at present, may be fraught with evil, though frowns be the only recompense for such honorable conduct. Such I imagine to be the principles by which the profession ought to be guided; and particularly so, should any measures be introduced to effect those changes which your correspondent advocates; for undoubtedly they will effect a most material change in the present practice. Whether such a change be advantageous or SELECTIONS FROM CORRESPONDENCE. No. XXXIII. MUNICIPAL CORPORATION COMMISSION. To the Editor of the Legal Observer. Sir, A ROYAL COMMISSION having lately issued, upon an address being presented by the knights, citizens, and burgesses, &c., in parliament assembled, to enquire into all "Municipal Corporations in England and Wales;" and in the words of the commission, "to collect information respecting the defects in their constitution; and also to make inquiry into their jurisdictions and powers, and the administration of justice, and in all other respects; and also into the mode of electing and appointing the members and officers of such corporations, and into the privileges of the freemen and other members thereof, and into the nature and management of the income, revenues, and fines of the said corporations, and to enquire into the several local jurisdictions existing within the limits of all corporate towns in England and Wales, and with a power to examine the officers, &c.." but doubts existing as to the extent of the inquiry, and its definite meaning and power, will any of your numerous correspondents favour me with their sentiments as to whether it includes, or in any manner relates to, the Trading Corporate Companies in London, or in any other of the large towns? I understand that one, if not several, corporate bodies, not trading communities, but invested with magisterial authority, have even refused inspection of their books and papers, or to conform in any manner to the enquiry, under the direction of their legal advisers. J. G. Sir, Selections from Correspondence :-Superior Courts: K. B. Practice Court. LAW REFORM.-LAW CLERKS. The article in the Legal Observer of Sept. 21, may be, as your introductory observations seem to imply, open to objection; but my walk in the profession is of far too humble a grade to allow me to offer an opinion; I am therefore bound to take the writer's opinions as well founded, until disputed by some equal authority. SUPERIOR COURTS: King's Bench Practice Court. 457 ATTORNEY.-RE-ADMISSION.-NOTICE OF In what case the notice of an attorney's intention to apply for re-admission, need not be stuck up, during every day of the term in which he applies for re-admission. On application for re-admission by an attorney, it appeared that the notice of the attorney's intention was stuck up in the King's Bench office, at the opening of the office, on the first day of term. The attorney had not gone to the King's Bench office until after it was closed, on the day previous to the term. But this is irrelevant to my present object. The writer says, that "if he thought the plans which he advocates, would materially interfere with the profits of the profession, he would not advocate it." This may be all very well, and I shall not attempt to say any thing against it, though perhaps my own feelings may not exactly agree with it; but what I find fault with is, that although this gentleman shews so praiseworthy a regard for the interests of his profession, that is, if his plans were likely to interfere materially with the profits of those members of the profession, the greater part of whom are, and the whole of whom ought to be, in some degree, independent of their practice, he would not advocate them, he at the same time shews an utter disregard for that respectable, though humbler body of men-law clerks; he says, speaking of the present expense of the practitioner, "If he had not so much copying to do, he must remember he would require fewer clerks." What then are 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 exertionsthe interests of these are not of the least consequence, but should the proposed reform materially interfere with the emoluments of already independent men, he would not advocate it. Is this philanthrophy? I do not mean to argue that any class of men have a right to live on abuses in the law, or any thing else, to the detriment of the public; far from it: let the abuses in the law (if there are any) be speedily remedied; but in doing so, surely it will be but fair to attend in some little degree to the interests of men solely dependent on their own exertions, and who by the meditated changes will be deprived of the power of exerting themselves: or at all events, their interests have as much right to protection, as the interests of those who are not dependent entirely on their own exertions for their daily bread. I am emboldened to offer these remarks by the very kind and able manner in which you have always advocated our cause,-especially (as your influential pen alone has done) for procuring us some very agreeable relaxations from the very heavy hours of business with which we were formerly burthened, and for the great assistance you have been to our society, permit me, in the name of our whole body, to return you our sincere thanks, and to beg that you will not desert our cause, especially at a time like the present, when from our humbler walk in life, we are not so able to take care of our own interests like the higher members of the profession. A CLERK. Taunton, J. The principle of the cases on this point appears to be, that the term's notice, required by the rule, is inclusive of the day on which the notice is put up in the office. In this case, therefore, as the notice was put up on the first day of the term in which the application has been made, a notice sufficient according to the spirit of the rule, has been given; and therefore the attorney making the application may be re-admitted. Re-admitted.-Ex parte Pilkins, T. T. 1833. Court of Common Pleas. CHANGE OF VENUE.-PRISONER.-LIBERTY. The venue may in some instances be changed, contrary to the practice of the Court, in favour of liberty. In this case, which was an action on a bill of exchange, a special jury was obtained by the defendant. When the cause came on to be tried, a less number than twelve special jurymen appearing, it could not be tried, as a special jury cause, and both parties refused to pray a tales. The cause then stood over for the folrendered by his bail, and he remained in cuslowing assizes. The defendant was then surtody. An application was then made to the changed from the county of Somersetshire, in Court on his behalf, that the venue might be which it had originally been laid, to Middlesex, soner, he would have to remain in custody on the ground that the defendant being a priuntil the next assizes, unless by changing the venue the cause was tried in the mean time. The defendant offered to pay the extra costs The Court was of opinion, that although the 458 Superior Courts: Common Pleas. present application was quite contrary to the rules of the Court, yet as the liberty of the subject was concerned, the rule might be made absolute, the defendant undertaking to pay the extraordinary expenses to which the plaintiff might be put, in consequence of trying his cause in Middlesex. Rule absolute, accordingly.-Keys v. Smith, T. T. 1833. Com. Pleas. INTERPLEADER ACT. SHERIFF. QUIA TIMET. Actual claims must be made, and attempts made to enforce them, in order to entitle the plaintiff to relief under the Interpleader Act. 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, that the goods seized were vested in trustees, to the separate use of the defendant's wife. The defendant soon afterwards petitioned the Insolvent Court for his discharge, and executed the usual assignment. The sheriff having been ruled to return the writ, he applied to the Court under the 1 & 2 W. 4. c. 58. § 6, the Interpleader Act, for relief, and obtained a rule nisi, calling on the plaintiff, the defendant's wife's trustees, and the provisional assignee of the Insolvent Court, to appear and state their respective claims, and abide such order as the Court should think fit to make, for adjusting those claims, and also for the stay of proceedings, until those claims should be adjusted. On the day given in the rule, neither the provisional assignee, nor the trustees of the defendant's wife, appeared. Andrews, Serj. shewed cause against the rule, on behalf of the plaintiff in the action, and contended that the present case was not one to which the statute applied. The Interpleader Act could not apply to those cases in which claims were made by persons who showed they intended to enforce them. Here, however, no such intention was manifested; claims were merely intimated, but nothing done which shewed the claimants were at all in earnest in what they did. They had not appeared to the rule, and therefore they had given convincing proof that they had no idea of enforcing their claims. If such a course as this could be pursued by the sheriff in such a state of facts, it would be only necessary for any idle person, in any case where the sheriff had seized, to make some supposititious claim on the goods, and the sheriff would be entitled to come to this Court, entitle himself to pay the proceeds of the sale into the hands of the officer, and then put the plaintiff to the trouble of enforcing his claim by a more circuitous process. This the Court would never countenance, as it was quite beside the real intention of the act. Spankie, Serj. was heard in support of the rule, and contended that the sheriff could not safely pay over the proceeds of the sale to the plaintiff, after receiving the notices served upon him. The case must therefore be regarded as coming within the spirit of the act, the object of which was, that the officers engaged in enforcing the process of the Courts, 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 alleged claimants, which shews that they intend to enforce their claims against the property seized. The mere mention of a claim is not a claim within the act. All we can do under the circumstances is to discharge the rule. Rule discharged.—Isaac v. Spilsbury, T. T. 1833, C. P. SHERIFF.-INSOLVENT.-COGNOVIT. TROVER. The sheriff is liable in trover for seizing the the goods of an insolvent under a fi. fu., issued on a judgment signed on a cognovit, after the commencement of the insolvent's imprisonment. This was an action of trover against the sheriff of Surrey, to recover goods belonging to the defendant under a fi. fa., issued on a judgment signed on a cognovit given by the defendant, and which judgment had been signed after the defendant, who had become insolvent, had gone to prison, and before the assignment had been made to the provisional assignee. After the assignment, notice was given to the sheriff not to sell, but he persisted in the sale. At the trial, a verdict was found for the plaintiff, and a rule nisi afterwards obtained to set aside that verdict. Cause was afterwards shewn against that rule. The Court referred to the words of 7 G. 4. c. 57. § 34, which were, "that in all cases where any prisoner shall petition the Court for relief under this act, shall have executed any warrant of attorney to confess judgment, or shall have given any cognovit actionem, whether for a valuable consideration or otherwise, no person shall after the commencement of the imprisonment of such prisoner, avail himself or herself of any execution, issued or to be issued, upon any judgment obtained or to be obtained upon such warrant of attorney or cognovit actionem, either by seizure and sale of the property of such prisoner or any part thereof, or by sale of such property theretofore seized, or any part thereof; but that any person or persons to whom any sum or sums shall be due in respect of any such warrant of attorney or cognovit actionem, shall and may be a creditor or creditors for the same under this act." In this case, after the imprisonment of the Superior Courts: Exchequer of Pleas. 459 insolvent had commenced, the plaintiff did seek | was founded stated that the attorney had pubto avail himself 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 published the libel in question. It was admitted that the applicant had not taken any criminal proceedings against the attorney on the ground of the application. Rule discharged. — Groves v. Cowham and others. T. T. 1833. C. P. Exchequer of Pleas. EJECTMENT.-HUSBAND AND WIFE. Service of declaration in ejectment. On a motion for judgment against the casual ejector, it appeared that the service was on the wife of the tenant in possession; but the affidavit did not go on to state that the service was effected on the premises, or that she lived with her husband. Per Curiam.-There does not appear to be any instance in which the Court has interfered to strike an attorney off the roll, on the ground of his having published a libel, for which an action has been brought, and damages given, and no criminal proceedings taken for the publication of that libel. The cases in which the Court has so proceeded, are those in which the misconduct imputed has been committed by the attorney in his character of attorney. Here, however, the misconduct in question has no connexion necessarily with his character of attorney. The rule now prayed for cannot Per Curiam.-That is not sufficient. Rule_refused. Ex parte Gregory, T. T. 1833. Excheq. SPECIAL CASE.-SPECIAL VERDICT. A special case cannot be turned into a special verdict, unless power for that purpose is reserved at the time of the trial. At the trial of this cause a verdict was taken for the plaintiff, subject to a special case. That was afterwards argued before the Court, and a decision pronounced upon it. An application was afterwards made to the Court by the Solicitor General, to turn that special case into a special verdict. Bayley, B. enquired whether any such power had been reserved. ATTORNEY.-AGENT.-TAXATION.-COSTS. If an attorney is party in a cause and acts for himself at the trial, he is not entitled to an allowance on taxation, unless his attendance appears to have been necessary. On a motion to review the master's taxation, the following facts appeared. The action was brought by a stationer for the amount of his bill against an attorney who resided at Stafford, and defended in person. The venue was laid in Middlesex. At the trial of the cause, the defendant came to town with a witness, and ultimately obtained a verdict. He had employed an agent in the cause, and had attended the trial himself. The master, on taxation, The Solicitor General admitted that no such reservation had been made; but he contended that it was not necessary that any such should be made. He conceived that the Court had 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 being reserved. Bayley, B. said, that in the whole course of his experience he was not aware of a single instance of such an application. Rule refused.-Archbishop of Canterbury v. Robertson, T. T. 1833. Excheq. ATTORNEY.-STRIKING OFF THE ROLL. LIBEL. It is not a ground for striking an attorney off the roll, that a verdict has been found against him, in an action for a libel of a very aggravated description. On an application to strike an attorney off the roll, the affidavit on which the application The present application was therefore made to review the taxation, on the ground that the plaintiff, as a professional man, was entitled to his allowance of a guinea a day; for if he had employed another attorney to act for him, that attorney would have been entitled to his 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 party to the suit, he could not be entitled to the allowance unless his attendance appeared to be necessary. That was not the case, and therefore the present application could not be granted. Rule refused.-Leaver v. Whalley, T. T: 1833. Excheq. |