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Analytical Digest of Cases.-Editor's Letter Box.

THE EDITOR'S LETTER BOX.

UNDERTAKING TO GIVE MATERIAL EVI

DENCE.

1. A letter written and posted in county A., THE next volume of the Legal Observer and addressed to, and received by, the plaintiff will be further enlarged, in order to increase in county B., whereby the defendant admits a part of the debt claimed in the action, is evi-the number and value of the Reports of Redence sufficient to satisfy the plaintiff's under- CENT DECISIONS, without curtailing any of taking to give material evidence in county A. the Original Articles, or select Information, for Hall v. Story, 16 M. & W. 63.

which the Work has been distinguished. We trust, indeed, to improve also the scope of our original disquisitions.

In carrying this improvement into effect, and

2. In an action for goods sold, the plaintiff, who was bound by an undertaking to give material evidence in the county of Durham, gave in evidence a letter written by the defendant, admitting part of the claim, which letter was posted in Durham and received in York-to enable the Reports of Cases and other Court shire. Held, sufficient to satisfy the under- business to be collected together and readily taking. Hall v. Storey, 4 D. & L. 345. referred to the work will be divided into two

Case cited in the judgment: Gilling v. Dugan, 1 parts.

C. B. 8.

VERDICT AGAINST EVIDENCE.

See New Trial.

WAY, RIGHT OF.

The 1st Part, containing original articles on all projected alterations in the Law and Prac tice; the state of the Profession and measures for its improvement ;-New Statutes, with ex

Evidence of agreement to explain acts of re-planatory notes and disquisitions on their conpair.-Objections at nisi prius.-Defendant, at struction;-Parliamentary Bills, Reports and nisi prius, to prove a public right of way over Returns: -Notes or Commentaries on importplaintiff's land, showed acts of repair done in a ant Decisions in Common Law, Equity, and certain year by C., the township surveyor. Conveyancing :-the Law of Railways, InsurPlaintiff offered to prove in answer an agreement made in that year, between C. and the ance, and other Joint Stock Companies :-Resteward of plaintiff's predecessor, that C., in view of New Books:-The Law of Attorneys consideration of repayment by the steward, and Costs, and the Examination of Articled should repair a road, which, according to plain- Clerks : tiff's case, was the road now in question. Defendant's counsel objected, because it did not appear that the steward, in that character, had authority to make such agreement. The judge received the evidence, which was not further objected to; and plaintiff had a verdict.

On a motion for a new trial, on account of the improper reception of evidence, the former objection was renewed, and it was argued, also, that the evidence, when given, did not show that the road to which the agreement related was the same as that now in question.

Held, 1. That (assuming the roads to be identified) the agreement, even if the steward had no sufficient authority, was evidence to explain the fact of repair, and was properly admitted.

2. That, if the evidence failed to identify the roads, that objection should have been made at nisi prius, when the defect appeared, and the judge should have been requested to strike the evidence out of his notes, and that point could not now be raised. Ferrand v. Milligan, 7 Q. B. 730.

WITNESSES.

Commission to examine.-Upon a motion, on the part of the defendants, for a commission to examine witnesses abroad, it was required that it should appear to the satisfaction of the court, upon an affidavit from their attorney, that the evidence of the witnesses proposed to be examined was material and necessary to the defence of the action. Healy v. Young, 2 C. B. 702.

Proceedings of Law Societies:Legal Biography; Correspondence; Professional Lists, &c.

The 2nd Part containing original and early Reports of every important Decision in all the Superior Courts, by Barristers of the several Courts:-New Rules and Orders of Court;an Analytical Digest of all Reported Cases in all the Courts. classified according to the leading subjects adjudicated upon; — Cause Lists ;-Circuits ;-Sittings; and every other information relating to the business of all the courts.

The price will remain the same as at present, viz.: 8d., or stamped 9d.

A correspondent at Birmingham refers "Tacitum to the 6th section of the New County Courts Act, which repeals the 8 & 9 Vict. c. 127, and every other act, &c. so far as the same affect or relate to the jurisdiction, &c. of that court or give jurisdiction to any other court, &c.; sect. 7 provides for proceedings commenced previously to the passing of the act, and the sects. 98 and 99, for unsettled judgments, &c. in courts holden by virtue of that act, or under any act repealed by that act, for the payment of any debt, &c.

The letter from Rochester shall be inserted. We will endeavour to procure a fuller report of the case of Richard v. Kingdon, 33 L. O. 477.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, SEPTEMBER 18, 1847.

"Quod magis ad NOS

Pertinet, et nescire malum est, agitamus."

HORAT.

PRIVILEGE OF MEMBERS OF PAR-[been on this occasion at chambers, and

LIAMENT FROM ARREST.

THIS subject, which was discussed in a former number, as a question of law, has subsequently, as it might readily have been anticipated it would have done, been brought under the consideration of one of the learned judges sitting at chambers, as a matter of judicial decision.

Mr. Thomas Duncombe, one of the

members for the Borough of Finsbury, whilst sojourning in Yorkshire, was arrested under a writ of capias, addressed to the sheriff of that county, on the 3rd of September, and applied to Mr. Justice Williams, the sitting judge at chambers, to be discharged, on the ground that he was exempted from arrest by reason of his privilege as a member of parliament. The authorities to which our readers' attention have already been directed were nearly all brought under the notice of the learned judge, who finally made an order for the discharge of the defendant from custody, upon condition that no action should be brought for the arrest.

that its determination was founded on something more solid and satisfactory than mentaries, a work which with all its merit a vague passage from Blackstone's Comcannot be regarded as the most precise or accurate legal authority.

Concurring with those, however, who desire to see our legislative institutions respected as well as powerful, we should greatly prefer finding the question set at rest for ever, by the voluntary relinquishment of a privilege which the altered circumstances of society no longer renders necessary for the preservation of parliadonment of such an odious distinction mentary independence. That the abanwould be expedient, can scarcely be denied by those who agree with us in considering that its assertion never fails to reflect discredit not only on the individual who resorts to such a protection from the ascertained claims of a creditor, but also upon the body who struggle to maintain an exemption from the operation of laws the pressure of which is seldom complained of by any but the improvident and dis

honest.

It will be recollected that in the session

As we ventured to intimate, the extent of the privilege is involved in some doubt, before the last, a bill was introduced by and in such a case the learned judge was Lord Brougham on this subject; and clearly justified in deciding in favour of doubtless it will be again brought forward. liberty. The learned judge's order, how-We shall, therefore, in our next number, ever, may become the subject of an appeal while the matter is before the public, to the court in which the action is depend-enter somewhat at length into the general ing, in Michaelmas Term, and we confess policy of the question.

we should be glad the question was more

fully discussed than it appears to have

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b 1 Blac. Com 165.

SPAPER

OBSERVER

LEGAL

470

Vacation Fees upon Issuing Fiats in Bankruptcy.

VACATION FEES UPON ISSUING ject of the Bankruptcy Laws, the equal FIATS IN BANKUPTCY. distribution of the bankrupt's property amongst all his creditors. A fiat sued out

to notice.

A REPORT has gone the round of the at the instant, is frequently the only means morning papers, of a statement alleged to the law provides, by which an importunate have been made by Mr. Lloyd, of Milk or a well-informed creditor is prevented Street, as to the expense of obtaining the from protecting himself from loss at the Lord Chancellor's signature to a fiat in expense of all the other creditors, by bankruptcy, which, we understand, is in- sweeping away the entire property of a correct, and which we have been requested trader. Judgments may be signed and executions issued, as well during the long Mr. Lloyd is erroneously supposed to vacation as at other periods of the year. It have stated that he had paid a sum of is only reasonable, therefore, that the ma14. 14s. for obtaining the Chancellor's chinery by which the Bankrupt Laws are signature to a fiat issued at the instance of put into operation should be equally aca bankrupt, upon a declaration of Insol- cessible at every period. vency. We understand the fact to have No one could desire that the Lord Chanbeen, that Mr. Lloyd stated he paid the cellor, who needs relaxation at least as sum of 12s. 6d., being his proportion of much as any other member of the profesthe expenses of a journey to obtain the sion, should remain in town during the long Chancellor's signature, in addition to the vacation, merely to affix his signature to ordinary fees paid upon the issue of a fiat, fiats in bankruptcy. Means might readily which, we believe, amount to 17. 12s. 6d. be devised by which a direct personal apin the first instance, and a further sum of plication to his lordship in such case could 81. 7s. 6d., making together the 107. re- be dispensed with. By analogy to the quired by the stat. 6 Geo. 4, c. 16, s. 4. practice of the Common Law Courts, it is The additional sum of 147. 148. would now understood, that one of the equity have amounted in certain cases to a positive judges remains in London or its neighbourprohibition. It greatly exceeds the com- hood during the long vacation, to attend to pensation allowed to a solicitor in many applications that do not admit of postponeinstances for his personal exertions in ment. The vacation judge might surely working a fiat from first to last. We were be entrusted with the charge of signing quite sure, even before we made the in- fiats, which, we apprehend, is a mere quiry, that there must have been an error ministerial duty, when the preliminary in the statement: it would have been forms have been complied with and are perfectly monstrous to impose a tax of regular.

such magnitude either on a bankrupt de- At all events, we are satisfied that the siring to divide the remnant of his estate attention which has now been directed to amongst his creditors, or upon creditors the subject, will prevent the establishment suing out a fiat with the view of adminis- of an objectionable practice. When the tering a bankrupt estate. The payment of emoluments of professional men have been even so small a sum as 12s. 6d., in addition reduced to so low a scale, as to render it to the usual fees, however, we consider questionable to some persons, whether the objectionable in principle. Those who profession can continue to be conducted inpractise in the Court of Bankruptcy com-dependently, it is certainly not the time plain, not without some show of reason, for imposing an additional burthen on that they have no vacation. A commis- suitors by the creation of new official fees sioner sits in that court six days in every of any amount. The reduction, if not the week, all the year round, for the purpose total abolition, of official fees, is one of the of opening fiats, hearing cause shown objects to which all who are sincerely deagainst summonses served on trader sirous of seeing the profession placed on a debtors, considering the sufficiency of better footing might advantageously direct bonds entered into under the statute 1 & 2 their efforts. Vict. c. 110, s. 8, and disposing of other business of a peremptory nature.

The urgency and uncertainty of commercial transactions renders this continuous attention to the affairs of a bankrupt more than expedient. It is indispensable to effectuate that which is the great ob

We ought perhaps to add, that it is only when a fiat issues upon a bankrupt's own petition, under the 7 & 8 Vict. c. 96, that the Chancellor's signature is necessary. In ordinary cases, the fiat is signed by one of the masters.

Law of Attorneys-New Statutes effecting Alterations in the Law.
LAW OF ATTORNEYS.

EFFECT OF THE NON-DELIVERY OF A

SIGNED BILL UNDER A PLEA OF SET-OFF.

471

torney does not prevent the debt from at taching, but only operates to prevent an action being brought to recover it." The motion for a new trial was therefore refused. NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.

THE CITY OF LONDON SMALL DEBTS COURT. 10 & 11 VICT. c. lxxi. (Local).

An Act for the more easy Recovery of Small Debts and Demands within the City of London and the Liberties thereof. [2nd July, 1847.]

CONSTITUTION OF THE COURT, OFFICERS,

&c.

THE provision of the statute which obliges a solicitor or attorney to deliver a signed bill to the party charged one month before action, was the subject of judicial construction in a recent case in the Court of Queen's Bench. To an action of assumpsit the defendant pleaded, as to part of the amount claimed, that the action was brought to recover fees due to the plaintiff as an attorney, and that no signed bill had been delivered pursuant to the statute; 5 & 6 W. 4, c. 94. Actions to be hereafter and he also pleaded a set-off to the whole declaration. At the trial the plaintiff above 201. to be heard and determined under the commenced in the Sheriffs Court, for sums not showed that there had been several money provisions of this act.-Whereas by an act of advances made by him to the defendant, parliament passed in the session of parliament but was unable to prove the delivery of a held in the 5 & 6 W. 4, c. xciv., intituled "An signed bill, so as to maintain the action for Act for amending and consolidating the Acts of services as an attorney. The defendant, Parliament for the Recovery of Small Debts in however, in endeavouring to meet the the City of London and the Liberties thereof, plaintiff's claim as proved under his plea of and for enabling the Goods of the Debtors to set-off, put in evidence an account rendered to him by the plaintiff, by which the latter charged himself with some sums due to the defendant, and on the other side discharged himself by items due for his costs as an attorney. The result of the account was, that there was a balance of 531. due to the plaintiff, but if the item for costs were excluded, there would be a balance of 201. due to the defendant.

be taken in execution," the various acts then

in force for establishing and regulating the Court of Requests in the city of London for the recovery of small debts within the said city and the liberties thereof, and thereby severally recited, were repealed; and by the said act certain persons therein named or referred to were nominated and appointed commissioners of the said Court of Requests, to sit as usual in the said court for the period and in the rotation therein mentioned; and by the said act powers were granted for the establishment of the said court, and for carrying on the business thereof: And whereas the city of London is a county of itself: And whereas the Sheriffs' Court of the city of London is a court of ancient jurisdiction, having cognizance of all pleas of personal actions to any amount: And whereas it is expedient that the manner of proceeding in the said court for the recovery of small debts and demands should be altered and regulated, and that the Court of Requests established under the said recited act of parliament should be abolished: May it therefore please your Majesty that in may be enacted; And be it enacted,

Mr. Justice Erle, who tried the cause at nisi prius, held, that the defendant having put in the account, must be taken to have put in both sides of it, and was not entitled to withdraw from consideration the amount of the costs, upon the ground that the plaintiff could not recover them, inasmuch as no signed bill was proved to have been delivered. The plaintiff, upon this ruling, had a verdict on the issue raised by the plea of set-off, the issue being entered for defendant on the plea denying the delivery of a signed bill. An application was afterwards made to the full court for a new trial on the ground of misdirection, and it was urged that the plaintiff could not be permitted to set off his bill of costs, not being in a position to recover these costs, as no signed bill had been delivered by him. The court after taking time to consider, upheld the ruling of the learned judge at nisi prius, and overruled the objection, expressly on the ground that "the nond This act abolishes the City Court of Redelivery of a signed bill of costs by an at-quests and extends the jurisdiction of the

c Harrison v. Turner, 16 Law J., 295. Q. B.

1. That all pleas of personal actions, where the debt or damage claimed is not more than 20%., whether on balance of account or otherwise, which shall hereafter be commenced or tried in the Sheriffs' Court, shall be holden in the said court without writ, and shall be heard and determined in a summary way, and according to the provisions of this act: Provided always, that the said court shall not, under the provisions of this act, have cognizance of any action of ejectment, or in which, although the debt or damage claimed may not exceed 201.,

Sheriffs' Court. The court, though it will have the power, will not be called the County Court, but retain its ancient name.

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472

New Statutes effecting Alterations in the Law,

the title to any corporeal or incorporeal here- act in Court of Requests to be continued in ditaments, or to any toll, fair, market, or franchise shall be in question, or in which the validity of any devise, bequest, or limitation under any will or settlement may be disputed, or in any action for any libel or slander, or for criminal conversation, or for seduction, or for breach of promise of marriage.

Sheriffs' Court under this act.-That all proceedings in the said Court of Requests, or otherwise in execution of the said recited act, commenced before the commencement of this act, shall be as valid to all intents and purposes as if this act had not been passed, and may be continued, executed, and enforced in the Sheriffs' Court, under the provisions of this act, against all persons liable thereto, in the same manner in all respects as if they had been commenced in the said court under the pro

7. Judge of Sheriffs' Court to preside in actions under this act.-That the judge of the Sheriffs' Court shall preside at the trial in the said court of all actions and proceedings commenced or directed to be carried on therein under the provisions of this act.

2. All other actions and proceedings to be carried on as if this act had not passed.—That all pleas of personal actions, and all other proceedings in the Sheriffs' Court, except the trial, under the provisions of this act, of pleas of per-visions of this act. sonal actions where the debt or damage claimed is not more than 207., or, not being more than 201., is excepted from the provisions of this act, shall and may be commenced and carried on in the said court as if this act had not been passed; and all proceedings in personal actions where the debt or damage claimed is not more than 20., which may have been actually commenced in the Sheriffs' Court before the commencement of this act, and which might have been commenced in the said court under the provisions of this act, shall be continued, executed, and enforced against all persons liable thereto in the same manner as if they had been commenced therein under the provisions of this act; and all other proceedings in the said court, not being proceedings in personal actions where the debt or damage claimed is not more than 207., and which could not have been commenced in the said court under the provisions of this act, shall be continued, executed, and enforced against all persons liable thereto in the same manner in all respects as they might have been continued, executed, and enforced in case this act had not passed.

3. Court to be held at Guildhall.-That the said court shall, as well for the purposes of this act as for all other purposes, be held at the Guildhall within the city of London, or at such other place within the said city as the mayor, aldermen, and commons of the said city in common council assembled shall from time to time by any order direct or appoint.

4. Mayor, &c., to appoint days and place for holding court. That it shall be lawful for the mayor, aldermen, and commons from time to time to appoint the place and day or days for holding the Sheriffs' Court for the purposes of this act; and the order for the first holding of the said court for the purposes of this act shall be published in two London daily morning newspapers, and shall be stuck up at the principal door or entrance of the said Guildhall, and shall be continued so stuck up for the period of one month at the least before the day appointed for the first holding the said court.

5. After commencement of this act existing Court of Requests to be abolished.-That from and after the commencement of this act the said existing Court of Requests for the recovery of small debts in the said city and the liberties thereof shall be abolished; and the said recited act of parliament of the session held in the 5 & 6 W. 4, shall be and the same is hereby repealed.

6. All proceedings commenced under recited

8. Judge of court may appoint a deputy in case of illness, &c.-That in case of illness or unavoidable absence, not occasioned by his other official duties, the cause whereof shall be entered on the minutes of the court, it shall be lawful for the judge of the Sheriffs' Court, or, in case of the inability of the judge to make such appointment, for the said mayor, aldermen, and commons to appoint some other person, who shall have practised as a barrister-atlaw for at least seven years, to act as the deputy of such judge during such illness or unavoidable absence; and it shall also be lawful for the judge, with the approval of the said mayor, aldermen, and commons, to appoint a deputy, who shall have practised as a barrister for at least three years, to act for him for any time or times not exceeding in the whole two calendar months in any consecutive period of twelve calendar months; and every deputy so appointed, during the time for which he shall be so appointed, shall have all the powers and privileges and perform all the duties of the judge of the said court.

9. Chamberlain to be treasurer of Sheriffs' Court. That the chamberlain for the time being of the city of London shall for the purposes of this act, be and be considered as the treasurer of the Sheriffs' Court.

10. Clerks, &c., in the Chamberlain's office to perform such duties in reference to the office of treasurer as shall be required, and shall be paid an extra salary for the same.-That the several clerks and other officers and servants for the time being employed in the office of the chamberlain of the said city shall from time to time perform such duties in reference to the court and the office of treasurer thereof, hereby imposed on the said chamberlain, as the chamberlain for the time being in his character of treasurer of the court shall require; and every clerk, officer, and servant of the chamberlain, so employed in performing any of the duties of the treasurer of the court, shall receive and be paid by the said mayor, aldermen, and commons, out of the general fund of the court, such extra salary or allowance as a remuneration for their services as the said mayor, aldermen, and commons shall from time to time think sufficient and proper.

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