Superior Courts: Common Pleas.-Law Bills in Parliament. and why the defendant should not be paid the costs of the motion. It was an action brought to recover the sum of 5241. upon two bills of exchange; and also a sum of 5,9997. alleged to be due upon a general account: and the cause having come on for trial on the 9th February, 1839, it was agreed between the parties that it should be referred to arbitration, the costs of the cause to abide the event of the award, and the costs of the reference to be in the discretion of the arbitrator. The award was made on the 8th January, 1841, and the defendant was awarded to pay to the plaintiff the sum of 2,7361., together with the costs of the reference, and of the cause. On the 29th April, 1841, the plaintiff signed judgment. On the 4th June, the costs were taxed at 932/., and the Master made his allocatur for that amount; and on the same day the judgment was registered, in accordance with the terms of the award, and of the allocatur. On the 18th November, 1841, the plaintiff died; on the 12th January, 1842, a scire facias was sued out, which was served on the 13th; and on the 19th the defendant pleaded that the judgment had been obtained by fraud and covin; on the | 24th the present rule had been obtained, upon the ground that the Master had included in his allocatur, and the plaintiff had included in his judgment, not only the costs of the cause, which amounted to 4747. 108., but the costs of the reference, also 4577. 10s. in amount, and that as to the latter sum, the plaintiff was not entitled to a judginent, but should have obtained an attachment. Mr. Serjt. Atcherley, and Serjt. Channell, now shewed cause against the rule; and contended first, that it asked too much in seeking to set aside the whole judgment, which at all events was good to a certain extent, and that the motion should have been to set aside the Master's allocatur, or to reduce the amount of the judgment; and secondly, that the defendant had waived the objection, having taken a step in the cause by pleading to the scire fucias. Had the motion been to set aside aside the allocatur, the answer would have been twofold, first, that it was too late; and secondly, that no objection had been made before the Master to the two sums being included in the allocatur, and that it might well be supposed, there being nothing shewn to the contrary, that the whole of the costs had been incurred in respect of the cause. With regard to the waiver, the objection amounted to a mere ground of irregularity which had been waived. Sloman v. Gregory, 1 D. & Ry. 181. Mr. Serjt. Manning and Mr. Serjt. Shee, in support of the rule. The costs of the reference ought not to have been included in the judgment, but could only be recovered by a proceeding upon the award by attachment or otherwise There had been no waiver of the objection by the parties assenting to the two sums being included in one allocatur, for it would have been useless to have had two allocaturs; it was the plaintiff's duty, however, to sign judgment only for so much as he was entitled to recover in the cause, and to have separated the 415 costs of the reference from those applying to the action. The objection was not to the regularity of the judgment, but its falsity, which could not be got rid of by any acquiescence or waiver of the defendant. Tindal, C. J.-The objection resolves itself into a point of irregularity, and is capable of receiving two answers; first, that the proceeding was with the consent of the parties; secondly, the lapse of time which has been permited to take place. The parties go before the Master, and the plaintiff having furnished the bill, including the costs both of the action and of the award, no objection is made on the part of the defendant, but he allows the bill to be taxed, and they go on agreeing to a given sum, for which the allocatur is made. The defendant's attorney might have said, this is an irregular course to take, and two allocaturs ought to be made; but I can see a very good reason why he did not, because it would have been nearly throwing money away, for, since the recent act, if the second allocatur had been made a rule of Court, it would have had the effect of a judgment (1 & 2 Vic. c. 110, s. 18.) See how unjust it would be to the plaintiff, if the defendant were permitted now, after a lapse of more than six months, to come and object to this judgment. If the objection had been made sooner, and the judgment had been found to be good, it would have operated as a charge upon the land of the defendant, (1 & 2 Vic. c. 110, s. 13) which he may now have parted with. The judgment could not be signed for any sum, but that for which the allocatur was made. The defendant lets seven days of Michaelmas Term, and thirteen days of this Term go by without any objection, but then a sci. fa. being sued out, he pleads a plea which he cannot say is a just one, and then comes to the Court. I think, under all the circumstances, that the rule must be discharged with costs. Rule discharged.-Bignall v. Gule, H. T. 1842. C. P. BILLS IN PARLIAMENT RELA- House of Lords. BILLS IN PROGRESS. For transferring the hearing and determining Lord Campbell. For making better provision for hearing Ap- [For 2d reading.] For the better Administration of Justice in the [For 2d reading.] Lord Brougham. 416 Law Bills in Parliament.-The Editor's Letter Box. For the Amendment of the Law relating to [For 2d reading.] Honiton. Attorney's Certificate Duty. To improve the Practice and extend the Juris- The Attorneys and Solicitors of Ireland have diction of County Courts. [For 2d reading] Lord Cottenham. To enable the Lord Chancellor to direct certain Proceedings in Bankruptcy, Insolvency, and Lunacy to be carried to the County Courts. Lord Cottenham. [For 2d reading.] For the better administration of Justice in the execution of Commissions of Lunacy. [For 2d reading.] The Lord Chancellor. To enable Baptists to make affirmations, instead of oaths. Lord Denman. presented a petition for the repeal of this tax. THE EDITOR'S LETTER BOX. We apprehend that we cannot insert some of the cases that have been sent, and which may be readily answered by a little research. "One of our Readers" is informed that the attorney to whom he is articled, is of course, the only person to execute the assignment, but the London agent, as well as the attorney in the country, must answer the questions as to the time served with each. The assignment cannot be compelled, because there is not such " plenty plenty to do and see" in the attorney's office as will satisfy the clerk. We think "Iota" must conform to the regulations. The fees are nearly 40%., besides 100l. to be deposited. The articles of clerkship being dated the 17th day of November, 1837, B. can be examined in Michaelmas Term 1842, without any special application. We shall be glad to receive the proposed letters from Scalæ." 64 There does not appear to be any restriction in the statutes or rules of Court against an articled clerk's carrying on business after the expiration of his articles. The Court or the Examiners will consider the nature of the business, and exercise a due discretion as to the party's examination and admission. The candidate need not answer the conveyancing questions. He is required to answer in Common Law and Equity, and one of the other three branches. By the 9 Geo. 4 Cap. 40, s. 36, Justices of the peace are required to issue their warrants to the overseers of the poor of the parishes in their jurisdiction," to return lists of all insane persons chargeable to their respective parishes," and on the receipt of such warrants, the overseers are to prepare such lists. "Such lists to be verified on oath;" and a penalty of 101. is imposed on overseers not returning such lists so verified on oath. The overseers of certain parishes state, they have no lunatics within that parish, and refuse to make any return. If an overseer is inclined to conceal having a lunatic pauper, he is not put on his oath, and the only remedy there is against him, is by fining him under the 37th section. A correspondent inquires whether an overseer is bound to make a return on oath as to there being any lunatics chargeable to his parish or not, and not simply to return a list of lunatics. Is any of our readers acquainted with a case on this point? The letters of "a Constant Reader;" R. H T; and " a London Solicitor," have been re ceived. The Legal Observer. SATURDAY, MARCH 26, 1842. "Quod magis ad Nos HORAT. THE LORD CHANCELLOR'S BANKRUPT LAWS AMENDMENT BILL. THE Lord Chancellor's Bill "for the Amendment of the Law of Bankruptcy," has just been printed. It differs from that of Lord Cottenham, in increasing the number of Commissioners of the Court of Bankruptcy for the purpose of executing fiats in the country, instead of transferring them to the intended Judges of County Courts. Amongst other alterations, the present Bill proposes to dispense with the petitioning creditor's bond, and to send the fiat direct to the Court of Bankruptcy. It provides for the arrest of the alleged bankrupt on proof of probable cause that he will leave the country. No person is to be made bankrupt on any act committed more than twelve months before the fiat. The petitioning creditor's debt is required to be 501. only, or where there are two creditors, not partners, 751.; or in case of three or more creditors, 1001. In lieu of Lord Cottenham's more comprehensive proposal, the persons to be rendered liable, in addition to the former traders are livery stable keepers, coach proprietors, carriers, ship owners, auctioneers, apothecaries, market gardeners, cow-keepers, brick-makers, alum-makers, limeburners, and millers.a The trader may be summoned before the Court of Bankruptcy, and if he does not appear, or does not within twenty-one days give security for the debt, he shall be a The late Lord Chancellor proposed to include attorneys, surgeons, school-masters, graziers, and farmers. deemed to have committed an act of bankruptcy. Persons adjudged bankrupt are to have notice before the adjudication is advertised, and be allowed five days to contest the fiat. If twenty-one days elapse after the adjudication has been gazetted, (the bankrupt being in this country) or three months, if in Europe, or twelve months elsewhere, the Gazette will be conclusive evidence against him. The mode of obtaining the certificate is thus prescribed: The Court is to appoint a public sitting, at which any creditors may be heard against the allowance of the certificate. The Court is to judge of the objections, and refuse or suspend the allowance, as the case may require. Then comes the important provision that the Lord Chancellor may appoint additional Commissioners of the Court of Bankruptcy, to act in the prosecution of fiats in the country; such Commissioners to be serjeants at law, or barristers of seven years' standing, and additional deputy registrars may also be appointed. Fiats may be directed to one of the Courts authorised by the act for the prosecution of fiats in the country, and bankruptcies now depending are to be removed to such Courts; and the travelling expenses of the Commissioners are to be paid out of the Bankruptcy Fund Account. It thus seems that the Lord Chancellor does not intend to have local resident Judges or Commissioners, but to send them on Circuit from the Court of Bankruptcy, and the London Commissioners are empowered to make general rules and orders, subject to the Lord Chancellor's approval. 2 F 418 The Property Lawyer.-Local Courts. The office of Chief Judge of the Court of Bankruptcy, and the office of one of the Judges, (Sir George Rose) now held by a Master in Chancery, are to be abolished. And the Court of Review is to be formed of one Judge only. The Lord Chancellor is also empowered to appoint an officer, to be called the Master, to tax all bills of costs; subject to review by the Commissioners in Bankruptcy. The bills of auctioneers, accountants, &c. are also to be settled by the Master. He is to be a barrister or solicitor of five years' standing. Then thirty official assignees are to be appointed for the purpose of conducting the country bankruptcy business in the manner adopted in London. have to observe," said his Honor, "that this Court has given full effect to an assignment of even military full pay, with respect to money which was actually in the hands of the agent for the party who had made the assignment, for in Spencer v. Cox and Drummond, 2 Anst. 535, n., an officer in the army had assigned his pay to the plaintiff to secure an annuity, and had given notice to the defendants, the agents of his regiment, to pay it over to the plaintiff. The officer being abroad on service, the plaintiff demanded payment of the arrears of the annuity from the defendants, and on their refusing he filed his bill. The defendants proved that officers in the army were at liberty to take up their pay from the regimental paymaster, and that the agent was answerable over to him. The Vice Chancel The clauses in Lord Cottenham's Bill, providing for the voluntary cession of pro-lor, however, decreed that the defendants perty by an insolvent and for compulsory cession at the instance of the creditors, are not in the present bill; neither is the provision for doing away with arrest on final process, except by the order of a Judge. THE PROPERTY LAWYER. OFFICIAL SALARY. should pay the money in their hands in discharge of the arrears of the annuity, and should discharge the growing payments of it out of such monies as they should receive on account of the assignor. But the Lord Chancellor varied the decree by ordering the defendants to discharge the annuity out of what should remain in their hands, after satisfying the demands of the paymaster; so that the Court gave the assignee the benefit of his lien with respect to the balance of the monies in the hands of the MASTER DAX'S LETTER WE very recently stated the principal cases relating to the assignability of official sala- agents." Sir L. Shadwell, accordingly ries, and among other conclusions to which made an order in the terms we have menwe came from them, was one, that "a comtioned, which was affirmed by the Lord pensation granted to a public civil officer Chancellor (Cottenham), his Lordship relyon the reduction of offices under the stat. ing particularly on the injunction being 4 & 5 W. 4, c. 24, is not assignable.' "confined to the sums in the Receiver GeneThis was so held in Wells v. Foster, 8 M. ral's hands. Tunstall v. Boothby, 10 Sim. & W. 149, by the Court of Exchequer. A 542. contrary doctrine, however, has been maintained by the Vice Chancellor of England in a recent case. The Commissioners of Customs by the direction of the Lords of the Treasury, granted to A. as a compensation for the loss of an office which he had held in the Custom House, 500l. a-year, WE lately submitted to our readers the payable quarterly by the Receiver General plan of Law Reform proposed by Mr. Dax, of Customs. A. assigned the allowance to one of the Masters of the Court of ExcheB. for a valuable consideration, and subse- quer; (see p. 384, ante ;) and we now proquently took the benefit of the Insolvent ceed to make some remarks on his sugges Debtors' Act. Sir L. Shadwell, in a suit tions. Amongst so many projects, it is by B. against A. and the assignees of his difficult to select one which shall meet all estate, but to which neither the Lords of points of the case; on the one hand conthe Treasury nor the Commissioners of ceding whatever may be safe to the advoCustoms were parties, restrained the Re-cates of change; and on the other, protectceiver General from paying over to the de- ing the due administration of justice. fendant monies in his hands on account of the arrears of the allowance, unless the Lords of the Treasury or the Commissioners of Customs should order the contrary. "I The letter to the Lord Chancellor is evidently written by a gentleman perfectly conversant with the subjects on which he treats, and he has taken a very compre Local Courts.-Income Tax and Certificate Duty. hensive view of them. Although each of the topics of reform embraced in Mr. Dax's letter requires and deserves separate consideration, yet we think they have been properly brought under one view, because the suggestion of adding another Judge to each Court, could only be borne out by shewing the necessity thereof, and the additional duties required to be performed. 419 additional Judges would prevent this pressure, and it would be much better if the Masters were to attend the Chambers in rotation, and hear parties on summonses in ordinary matters-leaving the Judges to decide matters of importance. We think the practitioners are much indebted to Mr. Dax for devoting his time to the consideration of these important subjects, and giving the result of his extensive knowledge and practical experience. THE INCOME TAX AND CERTIFICATE We have particularly to call the attention of our readers to Mr. Dax's suggestions by way of substitute for the scheme of Local Courts. We think that in whatever way such Courts are constituted, they will not answer the expectations of their supporters, but, on the contrary, will be productive of great mischief to the community. The decisions of such Courts are not likely WE, last week, stated our views concerning the to be satisfactory, and in the end the pub-income tax, so far as it concerns the profession, lic will find it better to pay a little more and particularly that large branch of it comfor the decision of their rights by compe- posed of attorneys and solicitors. We find tent Judges. If, however, inferior Courts that the Incorporated Law Society prepared are to be established, there ought certainly, in justice, to be an appeal to the superior a Petition to the House, which was presented Courts. We entirely approve of Mr. Dax's by Sir Thomas Wilde, setting forth the taxes suggestion that the inferior should be con- already imposed on attorneys, solicitors and trolled by the superior jurisdiction, and we proctors, which are not paid by the members trust it will be taken up by persons in of any other profession. The Petition is as authority. We agree also with the author of the letter, that if his suggestion of appointing additional Judges, and having a separate Court for the decision of actions to a limited amount, were carried out, it would of itself render Local Courts entirely unnecessary; and we think that if all actions originated by writ of summons in the superior Courts, power should be given to the Judges in case of disputed accounts, or other questions of minute detail, to send such matters before the Masters for investigation. This would be a great saving to suitors, and we think would be perfectly satisfactory, more particularly as the Courts would always have controul over their officers, and their decisions, when necessary, would be reviewed. follows : To the Honourable the Commons of the United The humble Petition of the Society of Sheweth, That your petitioners are not only liable in common with their fellow subjects to the indirect taxes upon articles of consumption, and to the assessed and other ordinary taxes, fession (that is to say) to stamps upon articles but also to fiscal burdens peculiar to their proof clerkship and admissions to practice, and to a direct annual payment to government for the stamps upon their certificates of practice. annum. That the payment upon certificates of attornies, solicitors and proctors, exceeds the sum of 85,000l. per annum. That the average revenue paid to goIt may be appropriate here to observe vernment in the ten years ending 1836, for that under the present system it is a sub-stamps upon articles of clerkship to attornies, ject of remark amongst the profession, that solicitors and proctors, and upon admissions to practice, exceeds the sum of 78,000l. per the way in which business is hurried over at the Judge's Chambers, is very unsatisfactory. The fault is not with the Judges, for they have not time properly to consider the matters before them, and particularly on the eve of the assizes; and in term time, one Judge from each Court is obliged to hurry from Westminster Hall to Serjeants' Inn to attend Chambers, and hear hundreds of persons within a few hours! How is it possible to do this satisfactorily? Now, That no one of the other professions is chargeable with similar stamp duties. That though your petitioners do not express any opinion upon the general policy of an income tax, they do humbly submit that attorneys, solicitors and proctors, should not be subjected to an impost on their income, which, with the stamps upon their annual certificates, |