16 Superior Courts: Q. B. Practice Court.-Parliamentary Proceedings.-Letter Box. costs. consider that as a sufficient affirmation, that be on the condition of giving security for the Currie, Woodgate, and Williams, were agents for the parties, for the purpose of receiving the money. The only remaining point insisted upon was, that each payment was a condition precedent to the right of Hunter to call for the execution of the deed, or in fact to call for the benefit of the agreement with the defendants. It was argued, that the bill could not properly be filed before the plaintiff had, out of court, performed his agreement. The general rule in equity certainly is not of that strict character. party filing a bill submits to do every thing that is required of him, and the practice of the court is, not to require the party to make a formal tender; it is said he does it by filing his bill; at all events, in this case where, from the facts stated in the bill or from the evidence, it appears that the tender must have been a mere form, and the party might or would have refused to accept the money; the defendants, according to the allegation in the bill, insist that the agreement is altogether void. Hunter is at liberty to contend, that the tender would have been simply an act of form, not attended with any benefit. It does not appear to me necessary to rely upon that, because I see the stipulation as to that has been waived, it must follow that a contemporaneous performance of the agreement by all the parties of the respective parts of the agreement must be inferred by this court. It is not, as at law, where a party may succeed and afterwards bring a cross action. It appears to me that the bill is sustainable, and the demurrer must be overruled. Hunter v. Daniell. March 6, 7, and 8, 1845. Lincoln's Inn. JUDGMENT AS IN CASE OF A NONSUIT. Where it appeared that a plaintiff had taken Gray showed cause against a rule for judgment as in a case of a nonsuit. Since issue had been joined the plaintiff had been discharged under the Insolvent Act. He submitted that the defendant must accept a stet processus or have the rule discharged. Wightman, J.-The rule must either be made taking. I shall impose no terms on either side. absolute or discharged on a peremptory underR. D. on a peremptory undertaking. Davidson v. Henley. Q. B. P. C. Hilary Term, 1845. PARLIAMENTARY PROCEEDINGS RE- House of Lords. BILLS FOR SECOND READING. Elective Franchise Extension. IN COMMITTEE. TO BE REPORTED. Deodand Abolition. IN SELECT COMMITTEE. Actions on Death by Accident. House of Commons. BILLS FOR SECOND READING. Roman Catholics' Relief. Poor Law Settlement. Jewish Disabilities. Common Law Process Abroad. BILLS IN COMMITTEE. THE EDITOR'S LETTER BOX. which we are enabled to give this week, are THE questions at the recent examination, nearly in the same terms as they were put to the candidates. We shall take an early opportunity of noticing the proposal of a classical and mathematical examination of articled clerks. spondents need not apprehend any early adopOur corretion of the suggestion. Barstow, contrà.-The rule must be made absolute. In Taylor v. Montague, 2 M. & W. 315, where a plaintiff after issue joined became bankrupt, and his assignees declined to proceed with the suit, the court refused to dis- If the attorney relinquishes the extra two charge a rule for judgment as in case of a non-years, then J. B. may be examined and admitted. suit, except security were given for costs. The We believe that the precise number of ques cause of action is out of the plaintiff and is tion to be correctly answered is not fixed. vested in his assignees. If the rule is dis- The Title-page, Contents, and General Index charged on a peremptory undertaking, it must to the 29th volume shall be speedily published. The Legal Observer, OR, JOURNAL OF JURISPRUDENCE. SATURDAY, MAY 10, 1845. "Quod magis ad Nos HORAT. IMPRISONMENT FOR DEBT. of the debtor; and the next, one in favour of the creditor. But still it can hardly be supposed that the very next year after a A SELECT committee of the Lords is statute has been passed, avowedly as an now sitting on the bill of last session for experiment, this same statute will be reabolishing imprisonment for debt. This pealed, and the law previously in force subject has of late years occupied much restored. We shall be quite prepared to attention; and we are bound to state that restore imprisonment for debt, in these the great body of opinion, as well profes- small debts, if after a full trial it shall be sional as mercantile, is in favour of the found to be necessary for carrying on abolition. Still no one can doubt that business in this country. It is true that imthe abolition of this power in cases of debts prisonment for debt is contrary to the comunder 207. has been attended with the mon law, and may be made to operate very greatest hardship and inconvenience; and oppressively. But we wish distinctly to all are agreed that some alteration of the law must be made-all are now willing to apply themselves to the remedy. It is idle, in this state of things, to bandy hard words on this or that person as the sup posed author of the measure. One great fault of existing legislation is, that the responsibility of any legislator is so slight, that in all cases of this nature it is impossible to put the blame on the right shoulders. If the secret history of this bill were stated, we suspect it would be found that this clause owes its origin to that system of compromise that forms the basis on which most contested bills are now arranged and carried. Let us see, then, what is proposed by way of remedy. A cry is raised, under the pressure of immediate evil, of "restore imprisonment!" The legislature has certainly, and more especially on this subject, been wavering and fluctuating enough: one year passing a law in favour be understood as admitting that a return must be made to imprisonment, unless some cure for the present state of things can be found. For how do they now stand? In many retail trades and professions, and in some cases even in wholesale trades, business has received a most severe blow. The debtor fairly laughs at his creditor, and tells him to do his worst. The threat of imprisonment, in nine cases out of ten, brought the money; but all threat under the present act is impotent. What then, we repeat, is to be the remedy? First, it is argued that the remedy as to the property of the debtor is now defective; neither salary, stipend, nor wages can be touched; neither can foreign funds. At all events, then, let us have the most full and ample remedy over all the property of the debtor: so far there can be no difference of opinion. But there must be something more. с public business might perhaps be looked at: in private business he might job for his constituents or himself as he pleased. We hope the whole law on the subject may be revised. In the mean time, we should be glad if a power were given to "Let it then be remembered that this system the creditor to summon a debtor before is at an end; that these principles are abaneither the bankruptcy or insolvency com- doned; that a new system is to be introduced, missioners, in all cases of debt under in which a member shall attend, shall hear, or 201. The mere summons would in be in the way of hearing, and shall be supposed Neither local, nor many cases do good; and where fraud to vote conscientiously. or even gross improvidence is shown, we personal, nor party interests are to bias him. would give a power to the commissioner They are all to be excluded. He is to act judicially. The House of Commons, then, is to be now on its trial. That is the issue to commit. We shall await with much interest the proceedings of the committee. RAILROAD COMMITTEES. boldly presented by Sir Robert Peel. It must satisfy the country that it is willing and able to discharge these important duties. We are quite content to give it the trial. But what if it should fail? what if it should not give satisfaction? The answer is obvious: if it shall fail, the propounders of the remedy cannot stop WE are glad to see that the House of here; they must go on; they must amend; Commons is giving the proper degree of they must introduce something else; they attention to the important private business must remodel the present tribunal, or substibefore it. The real working men of the tute some other. They cannot, as heretofore house are applying themselves in a very to every theoretical objection, but stick to it some did, boldly admit that the system is open creditable manner to dispose of the nume- nevertheless as working well. They cannot rous railway bills before it, and a great admit that their idol is blind, and deaf, and many interesting "groups" have been deformed, and disgusting, and notoriously formed for this purpose. Neither can the made of wood and brass, and yet continue to profession now complain. This great press worship it. They must pull it down and erect of work will give many a deserving man at another. In this consists the safety of the the bar an opportunity of getting both public. We must, it is now admitted, have an fame and profit for as the gentlemen business in parliament. effective tribunal for the disposal of the private We are most willing accustomed to the leading business in these to try the one that has been given us: our committees cannot attend them all, a good wishes are that it may be successful. We see opportunity will frequently be given to a and admit the difficulty of the transfer of the junior to distinguish himself; and thus the business; but, for the safety of the institutions latent merit, which is now confined in "the of the country, we cannot suffer a new system dark unfathomed caves" of Old Square and to incur the imputations which lay so heavy on Pump Court, may be enabled to ber of years you please; but, if eventually it the old. Give it a fair trial. Take any numfails-if it does not satisfy the public as to its These committees are now on their honesty, capacity, and ability for the work, (for trial. We have already noticed the change this is the test by which it is to be tried,)that has taken place as to these in the then you must agree on your own admission present session. We find the history is to the transfer of the business to some other given at greater length in the number of more fitting tribunal. You have said that the the Law Review for May. The following out incompetent, then some other must be House of Commons is competent: if it turns observations on this point deserve atten- found. Let not our readers pass this matter tion: forth to the world. shine over as trifling, or of subordinate interest. It is pregnant with results of grave constitutional importance. It is no mere question of privilege. It is one of those questions affecting the repreReform Bill has brought on and forced into sentative system which the passing of the public attention. "The old principles on this subject were virtually, that a member of parliament need not attend committees, or if he did, need not hear the evidence; might vote as he pleased; might listen, might not listen; might walk about, might not walk about; might write notes, might not write notes; might act and "And here we will avow ourselves friendly sit a a judge, or might not act or sit as a judge; to retaining this jurisdiction in parliament in might incur the suspicion of corruption, or any all matters except divorce bills, which are other motive;-in fact, was wholly irresponsi- purely judicial, if it be possible. In all other ble to any body on earth for all his acts and matters, nothing but the superior claims of dealings in private business. His conduct in justice could reconcile us to the transfer to any other tribunal. No one who for a moment considers the materials of which both houses of parliament are composed, can really under • See 29 L. O. 357. Irregular Practice of Barristers. 19 value their ability to dispose of their business. there not be, for purposes of this nature, a In both houses a large majority of members joint committee, composed of members of both are probably incompetent, but certainly indis- houses? There would be many obvious posed, to undertake any serious labour of any advantages-a uniform practice; great saving kind, far less labour requiring judicial or legal of expense; a larger body from which to select knowledge or habits. Still it is to be remem- the most competent members of each combered, that even of this number most have had mittee. Nor is this plan entirely without considerable experience of mankind, and al- authority. In 1834 a bill to provide for the most all have had that dealing with property trial of charges of general bribery was carried which imparts some practical ability in matters up to the House of Lords, and in the select of business. The great advantage which the committee on the bill in that house this prinupper classes now possess in this country is, ciple was introduced. The bill was not prothat they drink at the fountain that information ceeded in, owing to the lateness of the session. which is soon after diffused through a thousand By this bill, so amended, five peers and seven channels; but it is impossible for any man to commoners, out of a selected list, were to form sit perpetually at the fountain without imbibing a COURT, to inquire into the alleged charge of something. We have no wish to overrate the bribery. We have reason to believe that this abilities of members of parliament, but then it plan was mentioned in the committee of the is more absurd to underrate them. The most present session, which has originated the resostupid county member-the most obtuse peer lutions of the 28th of February, and we cer-has attained, of necessity, more information tainly think it well deserves consideration." and experience than a man of the same average! TERS. To the Editor of the Legal Observer. bility of the profession of the law, I feel bound to bring under your notice a proceeding which cannot but think has a tendency to compromise that high character which we are ever accustomed to associate with the members of the English bar. of dullness in a lower station. Still it must be IRREGULAR PRACTICE OF BARRISadmitted by all impartial persons that the great majority of both houses are incompetent to decide on the important judicial duties entrusted to them. But in the minority, men are to be found whom we consider particularly well fitted for the discharge of the duties con- to all that concerns the honour and respectaSIR, AS I know you to be sensitively alive nected with the private business of parliament. In this minority, both in the Lords and Commons, there are some of whom their country may well be proud. Men who possess much of the technical learning of the lawyer, without his prejudices-who have very frequently received a good legal education, but who, from various circumstances, have not followed the law as a profession-men of great practical knowledge of business, of large experience, perfectly familiar not only with books but with mankind, and knowing how to use both on occasion. It is this class of men who are, in our opinion, far superior to the average run of lawyers, on whom the real working of the system of private business falls, and to whom, and to those selected by them, we wish to see it more and more closely confined, and whose services in this branch of parliamentary jurisdiction cannot be sufficiently valued or estimated. They are frequently but little known beyond the circle of parliament. Their names only occasionally appear in the public business of the country. With great capacity oftentimes for speaking, they have the rare merit of exercising it only when absolutely necessary: they are content with the quiet influence acquired by the zealous and honest discharge of their duties. We have great confidence in this class of members in both houses of parliament, and to them we would willingly submit its private business, only reserving to ourselves the right, if the new system fails, and is no better than the old one, which we neither desire nor expect, to call on them for a better. "There is at least one other plan to which recourse may be had before these bills are entirely removed from parliament, and there is much to be said in its favour. Why should There has recently passed through my hands a lease of some premises, (part of a piece of ground now in course of being granted out on building leases,) which I was surprised to find, on inquiry, had been prepared, along with others, by a barrister, (a relation of the lessor,) who made a regular charge for the preparation of it, and transacted the business at his chambers, in all respects as an attorney in his office! Now I am not so much disposed to question the right, as the respectability of this proceedexperienced friends of its impropriety, that I ing. So strongly convinced are some of my have been urged to bring the matter under the notice of the benchers of the inn of which the If I gentleman in question is a member; this how- 3rd May, 1845. Your obedient servant, [We certainly think the practice alluded to rolment the Lords are guaranteed that the by our correspondent is irregular, and we can decree or order complained of will remain in have little doubt that if the case were brought statu quo till the judgment of the House is debefore the benchers, and established, they livered; the court below being utterly precluded would notice it severely. We are satisfied that from meddling with it in any way whatever. the rules as to the division of labour in the But while the Lord Chancellor's jurisdiction to profession should not be disturbed; and al- reverse or vary the order is put an end to by though we can fully sympathise with the feel- enrolment, it is equally true on the other hand ings of many estimable and learned men, who that his power of executing it remains undiare anxious for some opportunity of carrying minished and unaffected. Accordingly, the on the actual business of mankind, yet we can only advise them to wait until the legitimate opportunity arrives, as arrive they may be assured it will.-ED.] NOTES ON EQUITY. EQUITY PRACTICE. ENROLMENT OF DE CREE.-BILL OF REVIEW.-APPEAL. fact of presenting an appeal to the Lords, or even of its reception by the House, is never considered a reason for suspending the execution of the decree or order appealed from. The court below pays no regard to the appeal unless it be restrained from carrying the decree or order into operation by an express mandate issuing from the House itself. So much for enrolment, and the effect which it produces. We have said that it operates as a cessor of jurisdiction, and it does so; but UNTIL a decree or order has been enrolled subject nevertheless to this reasonable qualifiit may be altered by the Lord Chancellor at cation, that upon error of law appearing in the discretion. But where once it has been en- body of the decree itself, or upon discovery of rolled the sentence is from thenceforth beyond new matter," a bill of review may be enterhis power. There is an immediate cessor of tained; upon which the decree may be corjurisdiction in the court, so far as relates to that rected so far as it appears on the face of it order or decree; and the only mode of obtaining contrary to law, or in so far as may be necessary redress is by an appeal to the House of Lords. to give it due effect to the new matter disFor the last three or four years it has been a covered. And this is analagous to the practice rule strictly enforced in the House of Lords, to of the House of Lords where a judgment on insist upon enrolment of the decree before the merits of an appeal or writ of error is conhearing the appeal; because the House inter-sidered, now, (though it was viewed differently poses its pre-eminent jurisdiction in those cases in ancient times), to be irrevocable, and beyond only where it is made to appear that inferior the power even of the House itself to alter. remedies have been previously tried and ex- A bill of review is allowable in the Court of hausted; and until the decree has been enrolled Chancery upon new matter discovered, even the party conceiving himself aggrieved may after an affirmance of the decree by the House obtain redress in the court below. He may of Lords. But it may be doubted whether a apply there for a rehearing, and the Lord Chan- bill of review upon error in the decree itself can cellor may revoke his decree, and thus render be brought after such decree has been conthe appeal unnecessary. The mere fact of firmed in the House of Lords; for this, among presenting the appeal, or even of having it other reasons, that it is probable the House itself argued or decided in the House of Lords, will would in such a case interpose to rectify its own not operate as a supersedeas of the inferior judgment rather than leave the task to be perjurisdiction. Nothing can have this effect but formed by a subordinate jurisdiction. The an express order of the House to that effect, or error upon which a bill of review can be supenrolment. Now, if enrolment were not insisted ported, must be of such a kind as to speak upon as a condition precedent of dealing with from the decree itself, without further examithe appeal, the consequences would be that two nation dehors. Thus, suppose an absolute dedistinct litigations might be going on at one cree should be made against a person who, and the same time in the court above and in the upon the face of it appears to be an infant. court below with reference to the same matter. This would be a sufficient ground for a bill of And this absurdity might ensue, namely, that review. Other cases might be put; but we if the House of Lords affirmed the decree prefer directing attention to a recent case which appealed from, the Lord Chancellor might we find reported in the number just published contemporaneously have reversed it, or varied of Messrs. Jones and Latouche's Irish Equity it on a re-hearing in his own tribunal. To Reports, (vol. 1, p. 305,) where Lord Chanavert these and the like incongruities, the rule, cellor Sugden appears to have holden, that it (notwithstanding what is said to the contrary would have been error apparent on the face of by Mr. Daniell in his useful Book of Practice,a) a decree, if it had declared that legacies were is now fixed, that to obtain the fruit of an appeal enrolment is indispensable. By en a See Macqueen's Practice of the House of Lords, p. 122, where Mr. Daniell's mistake (Daniell's Chancery Practice, 2nd vol., p. 674) is corrected. charged on real estate by a will set out in the pleadings, where, according to the true construction of the will the real estate was not so collected from the report rather as an obiter charged. This proposition, however, is to be b See Redesdale on Pleadings, p. 84. |