Superior Courts: Common Pleas.-Exchequer. ment for the benefit of the defendant's ereditors after his petition in bankruptcy, and the commission of an act of bankruptcy : Held, that as assurances had been received of the creditors' concurrence therein, the plaintiff was entitled to recover the amount of his bill of costs for preparing such deed, which would be valid, and tended to save expense. 95 missory note by his father's executors, that his father had discharged him from payment in consideration of his abstaining from complaints as to the unfair distribu tion of his property among his children : Held, on demurrer to this plea, that the agreement was nudum pactum, and the plaintiffs were entitled to recover. THIS action was brought by executors to THIS was an action by an attorney to re-recover the amount of a promissory note given cover the amount of his bill of costs for preparing a deed of assignment of the defendant's goods in trust for the creditors. It appeared the deed was prepared after the defendant had petitioned the Court of Bankruptcy and an act of bankruptcy had been committed. On the trial, at the Guildhall Sittings, before Cresswell, J., the plaintiff obtained a verdict, subject to this motion. De Crespigny v. De Crespigny. Nov. 21, 1853. ACTION ON COVENANT IN SEPARATION DEED ΤΟ ΜΑΙΝΤΑΙΝ DAUGHTERS.-LIMITATION OF, ON ATTAINING 21. The defendant covenanted in a deed of separation to maintain, educate, and support his three daughters, in consideration of their being left, and so long as they were left in his care, custody, and control: Held, on demurrer to the plea in an action on this covenant, that the defendant's liability continued, although the daughters had attained the age of 21. THIS was an action on a covenant in a deed of separation, whereby the defendant covenanted to maintain, educate, and support his three daughters, in consideration of their being left, and so long as they were left in his care, custody, and control, with the exception of such periods during which they should visit their mother. It appeared the daughters were now of age, and the question arose on a demurrer to a plea, whether the defendant's liability still continued. Pashley for the plaintiff in support of the demurrer; Hill for the defendant, contrà. The Court said, the covenant was not limited by any such condition as that now sought to be introduced, and the plaintiff was therefore entitled to judgment. by the defendant as a security for a loan from the testator, who was his father, to which the defendant pleaded that he had been discharged from payment of the note in consideration of his abstaining from repeating complaints of the unjust distribution by his father of his property among his children. To this plea there was a demurrer on the ground the agreement was without consideration and not binding. Bovill, for the plaintiffs, in support of the demurrer; Clark for the defendant, contrà. The Court said, there was no consideration for the agreement alleged in the plea, as it was not binding either on the father or the son, and was entirely a nudum pactum. The demurrer would therefore be allowed, and judgment be given for the plaintiffs. Viner v. Hawkins. Nov. 25, 1853. INSOLVENT. REMAND IN RESPECT OF JUDGMENT DEBT. DISCHARGE ON JUDGE'S ORDER.-ACTION TO RECOVER SUM PAID. An insolvent was remanded for seven months, in respect of a promissory note due to the defendant, on which judgment had been obtained. The defendant then issued a ca. sa. under the 1 & 2 Vict. c. 110, s. 85, but agreed to his discharge on a Judge's order for payment of a certain sum, and the remainder by instalments. The sum was paid and the discharge took place. The insolvent then brought an action to recover back the sum so paid: Held, that he was not entitled to recover. charged under the Insolvent Debtors' Act, It appeared that the plaintiff had been disfrom all his debts forthwith, and as to a sum of 591., the amount due to the defendant on a bill he had accepted, and in respect of which a judgment had been obtained, he was remanded for seven months from the date of the vesting order, on the ground such debt had been fraudulently contracted. The defendant then issued a ca. sa. under the 1 & 2 Vict. c. 110, s. 85, against the plaintiff, who obtained his discharge on consenting to a Judge's order for payment of a sum down and the remainder by fixed instalments. This action was afterwards brought to recover a sum of 15l., the amount of the first payment, as money had and received by the defendant to the plaintiff's use. On the trial before Martin, B., a nonsuit passed, and this rule nisi had been obtained to set it aside and for a new trial. 96 Superior Courts: Exchequer.-Criminal Appeals.-Court of Bankruptcy. Knowles and Dawson showed cause; Hawkins in support. The Court said, the payment was voluntary and made under a full knowledge of the facts. The detaining creditor had power to arrest the insolvent on a ca. sa. under the Statute, and the debtor was enabled either to give bail or pay the debt. He had chosen the latter alternative, and could not now recover back the amount so paid. The rule must therefore be discharged. Court of Criminal Appeal. PERJURY ASSIGNED ON AFFIDAVIT IN AD- THIS was a point reserved for the opinion of this Court, on an indictment for wilful and corrupt perjury in an affidavit in the Court of Admiralty in a salvage case. It appeared on the trial before Erle, J., at the last York Assizes, that the affidavit was sworn before a Master Extra. in Chancery, and that it was the practice of the Court of Admiralty to receive affidavits so sworn. The defendant was convicted, subject to this point reserved. Cross for the defendant. T. Perronet Thompson and W. Digby Seymour in support of the conviction. having been found at 12 o'clock at night with certain implements of housebreaking in his possession without lawful excuse. On the trial, at the Middlesex Sessions, in October last, the prisoner was found guilty of the possession, but the jury found there was no evidence of an intent to commit a felony, whereupon the point was reserved, whether the conviction was valid. Huddleston for the prosecution. The Court said, the conviction must be confirmed. Court of Bankruptcy. (Coram Mr. Commissioner Goulburn.) BANKRUPT LAW CONSOLIDATION ACT.- After a petition for an adjudication against a In this case it appeared that since the adjudication against the above bankrupt, who traded in partnership with two other parties, an adjudication had also been obtained against such other partners, but that they had not surrendered. It was now proposed at this first sitting for proof of debts and choice of assignees on the former petition, to proceed to such The Court said, that a Master Extra. had no choice under the bankruptcy, and on the other authority to administer the oath in the Admi-petition coming on to obtain an order to annex ralty Court, and that the fact of such affidavits the proceedings therein under the 12 & 13 Vict. being acted on in that Court did not confer the c. 106, s. 98.1 authority. Although, therefore, the offence might amount to a misdemeanor for attempting to impose on the Admiralty Court, it was not perjury, and the conviction was accordingly reversed. Regina v. Bailey. Nov. 19, 1853. INDICTMENT FOR POSSESSION OF HOUSE- Sheard in support. The Court said, the proper course was, to adjourn the choice until the choice should be made in the joint petition, leaving the estate in the meanwhile in the hands of the official assignee, and the matter was accordingly adjourned. Which enacts, that "after a fiat issued, or a petition for adjudication of bankruptcy filed, against or by one or more member or members of a firm, any petition or petitions for adjudication of bankruptcy against or by any other member or members of such firm, shall be filed and prosecuted in the Court in which the first fiat or petition was presented and immediately after the adjudication under such other petition or petitions, all the estate, real and IT appeared that the prisoner had been in-personal, of such bankrupt or bankrupts shall dicted under the 14 & 15 Vict. c. 19, s. 1, of A prisoner was indicted under the 14 & 15 Vict. c. 19, of having been found at 12 o'clock at night with implements of housebreaking in his possession without lawful excuse. There was no evidence of an intention to commit a felony. The conviction was confirmed. vest in the official assignee and the creditors' assignee (if any) under the first fiat or petition; and thereafter all separate proceedings under such petition or petitions shall be stayed; and such petition or petitions shall, without affecting the validity of the first fiat or petition, be annexed to and form part of the same." The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, DECEMBER 10, 1853. THE APPROACHING SESSION OF may be. Let it not be forgotten, however, PARLIAMENT. NEW COMMISSIONS. that it is to the Law Officers of the Crown, and especially to the individual placed at the head of the legal department, the Legislature and the Public must look, for the THE unparalleled number of Commissions measures necessary and expedient for senow in active operation, for the purpose of curing the efficient and satisfactory admiinquiring into and reporting upon various nistration of the laws, and not to irresponbranches of the law, with a view to altera- sible and unpaid Commissioners. tion and improvement, has been repeatedly latter may suggest and recommend, but it a subject of comment in these pages, as it is the function of the executive government is a topic of general observation in all to give force and practical effect to the circles of the Legal Profession. suggestions and recommendations of the The That inquiries will, in general, be most Commissioners. advantageously conducted by those who Nothing has yet occurred creative of any have some practical acquintance with the doubt that Lord Cranworth is fully sensible subject-matter of investigation, can hardly of the responsibilities of his elevated pobe disputed. It may also be conceded, sition; and as his lordship, from a fortunate that an unreserved interchange and com- combination of circumstances, is in the enparison of sentiment between those who joyment of more abundant leisure than any have extensive experience in the working of of his immediate predecessors, it may be any branch of the law or its administration, fairly expected that he is applying all the is well calculated to develope evisting evils, energies of his remarkably accurate mind to and to suggest the appropriate remedy. In the consideration of the various measures of short, no one denies that many useful legal improvement which it will devolve measures of legal reform have emanated upon him to announce and explain upon the from Commissions; but the multiplication re-assembling of Parliament. of Commissions will become a just subject The Lord Chancellor, it seems, is not of complaint, if by this device those in content with the fate of the Bill for the authority seek to throw from their own Registration of Assurances, which certainly shoulders the responsibility incidental to did not originate with him, but which he official position, and to fix it upon those adopted with as little reserve as if he had who are not the servants of the public, and been its sole parent. His lordship's Bill, have, properly speaking, no public functions it will be remembered, after passing through to discharge. No doubt it is convenient, its various stages in the House of Lords, when inquiries are made in Parliament, was transmitted to the House of Commons with respect to the intentions of Govern- about the middle of the month of June last, ment, in reference to any particular branch and then referred to a select Committee, a of the law, to be able to state that the majority of the members of which were, as subject is under the consideration of a body usual with regard to government bills, supof learned Commissioners, or that the porters of the present administration. The Commissioners are preparing a report, or Select Committee, after deliberating upon that the report of the Commissioners is and settling the course of proceeding, about to be laid on the table, as the fact examined the following witnesses Mr. VOL. XLVII. No. 1,344. G 98 The Approaching Session of Parliament.—Projected Joint-Stock Trust Companies. William Strickland Cookson, Mr. Edwin but it is understood that the Lord Chan Wilkins Field, Mr. William Williams, Mr. cellor will be prepared, at the commenceJohn Fawcett, Mr. G. Webster, Mr. Bullar, ment of the Session, to introduce a Bill and Mr. Coulson. After hearing the evi- abolishing the various Diocesan Courts of dence of these gentlemen, the Committee Probate throughout the kingdom, as well proceeded to consider the Bill, and agreed as the Prerogative Court of Canterbury, and to an unanimous expression of opinion, establishing a great Metropolitan Registry "that many of the serious objections urged for Wills both of real and personal estate. in the petitions against the registration of The details of this important measure are all assurances relating to landed property not yet probably definitively determined are well founded and have been substan- upon, but we have good reason to believe, tiated;" and, in conformity with this reso- that the Bill is not only framed, but aplution, the Committee recommended the proved, by the Government, and that it will House not to proceed with the Bill for the be amongst the earliest and most prominent Registration of Assurances, but suggested measures of Law Reform introduced in the "the immediate appointment of a Commis- Session of 1854. sion for the purpose of further considering The Commission announced in the last the subject of registration of title, with re- Number,3 for inquiring into the state of the ference to facilitating the sale and transfer Law and its administration in British India, of land, in order that a Bill for effecting was imperatively called for in consequence that object may be brought into Parliament of the disclosures produced by the discusat the commencement of the next Session." sions which took place last Session upon The suggestion of the Select Commit- the Bill relating to the Government of tee of the Commons, that a Commission India. A large proportion of the members should be immediately appointed, was not of the Commission have had the best opadopted, but the Lord Chancellor is now portunity of local acquaintance with the about to issue a Commission upon this subject, which it is proposed should be conducted upon principles altogether novel and, to some extent, speculative. The Commission is to be addressed to twelve persons, and it is not intended that they should meet together and discuss the subject upon which they are ultimately to report,-they are to be requested rather to refrain from intercommunication, and each member of the Commission is to be furnished with all available materials, which he is to hatch in private, and at the end of a limited period is expected to bring forth, in the shape of a report, the produce of his solitary incubation. By this method, it is supposed the Commissioners will be thrown upon their own resources, that individual invention and ingenuity will be taxed to the utmost, and that if the difficult problem is to be solved of how deeds are to be registered without increasing the expense or diminishing the security of the owner of land, it cannot fail The objections to these projects are mato be hit off by some one of the twelve nifold, both in principle and detail. We Commissioners who are expected to make adverted in our last volume to many this matter the subject of their cogitations.2 and inconveniences which would arise from The new scheme for the Registration of private trusts being managed by a numerous Assurances, if any should be determined board of directors. A Master in Chancery, upon, can hardly be expected to be matured or a single Judge, or a small number of in the course of the approaching Session, trustees, are able to enter into all the details of the management of an estate,-to give a careful consideration to the See Report, Leg. Obs., vol. 46, p. 331. • We understand that an eminent solicitor will be one of the Commissioners, subject of investigation; but we should desire to see the whole system of judicial patronage in the Colonies thoroughly examined into and exposed, and should be agreeably disappointed if it turned out that the appointments to this branch of the public service were made with a due regard to the interests of the Colonies and the honour of the mother country. PROJECTED JOINT-STOCK TRUST COMPANIES. WE have briefly to call the attention of the Profession to the notices which have been given in the London Gazette and the newspapers, of projected Joint-Stock Companies for the execution of private trusts. Amongst these the South Sea Company again stands conspicuous, though not alone, as it did in the last Session of Parliament. See ante, p. 39. proper evils educa Projected Joint-Stock Trust Companies.—Law of Attorneys and Solicitors. 99 tion of infants, the control of their future professional agent in Scotland Mr. Fraser, property, their advancement in society, their a writer to the signet, and had afterwards travelling abroad, their marriage, and the sanctioned the retainer and employment of care of their interests throughout their Mr. Poole as his solicitor in England, on lives. Are all these domestic, family, and the recommendation of Mr. Fraser. It apprivate concerns to be discussed and con- peared that a private arrangement had been sidered by a public board, composed of per- entered into by Mr. Poole, to allow Mr. sons who know nothing of the personal Fraser one-half of the profits arising from feelings and interests of the parties? Then Mr. Gordon's business, and on the taxation consider the disclosures which must come of Mr. Poole's bills of costs, Mr. Gordon before the board in regard to the shares presented a petition, claiming to be entitled and interests which the cestui que trusts to have the bills taxed, having regard to may have in banking and mercantile firms. such agreement, and to have such portion Some of the members of rival establishments as Mr. Fraser was to receive under the may be on the board, and thus become ac- agreement disallowed, together with all quainted with matters which ought to be charges for attendances, conferences, and kept secret. correspondence between Mr. Poole and Mr. Considering the improvements which Fraser. have been effected in the Court of Chancery, The Master of the Rolls said, "The case by which assets may be administered and is to be considered in two ways: either the trusts carried into effect with expedition agreement between Fraser and Poole was and at moderate expense, these projects legal, or it was illegal. If it were legal, seem altogether uncalled for. At present no question can arise upon the subject, bethe persons interested in trusts are repre- cause Mr. Fraser did not contract on behalf sented by their respective solicitors, who of his principal, but on behalf of himself, zealously attend to their wishes, but if the and Mr. Gordon cannot be entitled to the affairs be placed in the hands of a public benefit of a legal contract to which he is company, the solicitor of the company not a party; if it be illegal, the argument would naturally attend chiefly to the profit that Mr. Gordon was defrauded cannot be and advantage of his clients, the directors, maintained, because Mr. Poole could charge and would feel little sympathy with the no more than he would be legally entitled numerous cestui que trusts, whose interests to, if he had entered into no agreement with would be, for the most part, confided to Fraser. The plaintiff will pay to Poole clerks and agents. only that which he would be bound to pay Again, these joint-stock companies are, of him if there had been no agreement becourse, to be paid a per centage for execut-tween Fraser and Poole. It is contended, ing and managing the trusts confided to that the clause in the Statute of Geo. 21 them. Now, it may be asked, why should renders the contract illegal. It is what is the law be altered in favour of such com- called a hotchpot Act, relating to many panies, and remain unaltered with regard to other subjects; but the recital is this:all other trustees, whether private indivi-Whereas divers persons, not admitted as duals or solicitors, who can be allowed attorneys, do, in conjunction with, or by nothing for their trouble or loss of time? the contrivance of, certain attorneys, act as If the South Sea Company succeed in obtaining a repeal of the existing rule, the change should not be confined to joint-stock companies, but extended to all classes of trustees. Such are a few of the suggestions which we at present offer, and we invite further communications on the subject. attorneys,' and it then proceeds to enactthat if any attorney shall act as the agent for an unqualified person, &c., such attorney shall be struck off the Rolls, and be liable to be committed. "Now, this is a highly penal clause, and must be construed strictly. It means, that if a solicitor shall, by any contrivance, allow one not duly qualified to act as a so LAW OF ATTORNEYS AND SO. licitor, he shall be subject to be struck off AGREEMENT LICITORS. TO SHARE PROFITS WITH WRITER TO THE SIGNET. - CLIENT'S RIGHT.-VALIDITY. A MR. GORDON had employed as his the Rolls and imprisoned. "Here, if Poole had lent his name to Fraser, and had allowed him to act as a solicitor in London, he would be liable to the penalties prescribed by this clause; 1 22 Geo. 2, c. 46. s. 11. |