62 Superior Courts: Vice Chancellor : Queen's Bench. ing as they may have placed him in a position. Taylor, the Vice Chancellor held that more than twenty years was not a bar to the taxation of a bill, where a mortgage had been given pending the relation of solicitor and client, without proving specific errors. Lord Cottentlement of accounts, and long acquiescence, the transaction ought to stand, unless specific errors were proved. I did not understand his Lordship to say, that if the bill of costs were proved to be erroneous, the Court would not open it so far as to do justice between the par cannot assume that the items in this bill, which was settled in 1823, and, to some extent, confirmed by the sale in 1825, and has been ac quiesced in for so long, are fraudulent. I shall therefore dismiss the bill, without costs, so far as it seeks to set aside the purchase; refer it to the Master to take an account of what (if anything) is due to the plaintiff in respect of the purchase money; and, in taking such account, let the Master enquire, and state to the Court, what is the bill by which the 11007. mentioned in the mortgage is made up, and which (if any) of the items contained in such bill, are improper. Let the master tax the bill of costs subsequently to the mortgage, and take an account of the subsequent money transactious; with liberty to state special circumstances. Further directions and costs reserved. Edwards v. Meyrick, gent. July 18th, 21st, in which his duties may have clashed with his interests, and may have given him a knowledge which was not possessed by his client, and which may have given him such influence and ascendancy over that client, as, notwithstand-ham reversed that, observing, that after a seting the existence of the relation of attorney and client, might leave the parties subsequently at arm's length from each other. Upon the question of value, I may observe, that Lord Eldon in Montesquieu v. Sandys, says, that if the evidence showed that the price paid fell short of the real value by no more than one-ties. Lord Eldon says, that where a bill has third, and if, to that circumstance were added been paid and acquiesced in, and security given fraud, he could not say that he would suffer for it, and the errors in it appear to be so gross the transaction to stand; but he, by no means, as to amount to fraud, the Conrt will, after a intimates, that, where the transaction is, in number of years, open it altogether; but, he every other respect, fair, and no advantage is says, after it has been paid, the Court will not taken of the relation of attorney and client, open it, merely because there are some charges the amount, though less than that, would af-in it which would not be allowed on taxation. fect it. This purchase is made in February, One-eighth would be all that could be taken 1825; in May, 1835, a bill for making a rail-off according to the present evidence, and I road through this part of the country receives the royal assent. In consequence of this, the probability had arisen, of coal being worked at a period less remote than was anticipated, and of coal speculators giving a higher price for the property than they would otherwise have done Can I, then, as against the defendant, hold that his situation imposed on him the obligation of proving that he gave notice that a railroad might be made, and that possibly the coal under this land might become workable, and that, if it was worked, the land would be increased in value? That is to say, was he bound to acquaint him of this, which was a purely speculative matter? Considering as I do, that this Court is bound to watch strictly transactions between attorney and client, still I think the Court ought not to allow a contingent advantage, which was in the contemplation of one of the parties at the time, to be made a ground for imputing|22d, and 29th, 1842. fraud to the attorney, because of his noncommunication of it to his client. I must, therefore, follow the order of Lord Eldon in Montesquieu v. Sandys, and dismiss so much of the bill as seeks to rescind the contract, but dismiss it without costs. The bill charges minute and specific errors in the bill of costs, Trover for a chattel cannot be maintained upon a demand to deliver the chattel in the sume which, with other items, made up the sum secured by the mortgage. I think the result good plight and condition in which it was would be, that rather more than 100l. would when it came into the possession of the dehave to be taken off the whole bill of 800. I fendant. A demand on which to found a do not mean that that is the result of the conversion so as to maintain trover, should evidence. If that were So, no doubt be a general, and not a restricted demand. the plaintiff would be entitled to have Trover for a gun. The cause was tried the bill taxed. If the transaction were re- before Lord Denman, C. J., at the last assizes cent, the mere question would be, whether at York. The gun in question had been left by the allowance of the bill of costs in the mort- the plaintiff with a person named Cross to be gage would prevent the taxation at all? If sold. Cross lent it to a person named Todd, recent, no doubt it ought to be taxed. As to who lent it to the defendant, who shot with it, acquiescence, I do not understand the answer and, as it was alleged, burst it. The chief as setting up time as a bar to the taxation. question was, whether there had been such a The case stands thus, that specific errors are demand and a refusal as to enable the plaintiff shown to exist in a bill, and to an amount to maintain trover. The demand proved was which would make it most improper, that in a written notice in the following terms: "I taking the account of what was due on the pur-hereby give you notice that the gun which you chase money, those sums should be allowed, and that the plaintiff should be deprived of an opportunity of proving the errors." In Waters Queen's Bench. TROVER. received from Todd, and which he received from Cross, and which Cross received for the purpose of making sale thereof, is my property; and I Superior Courts: Queen's Bench. 63 hereby require you to deliver the same to me | averred that the name and date were there, so in the same good plight and condition as you as to shew that the engraving was within the received it from R. Todd." The plaintiff had provisions of the statute. For want of shewing been nonsuited on the ground that this was not that to be the case, the allegation that the print a notice which would maintain trover. is within the statute is not sufficiently made Mr. W. H. Watson now moved for a rule to out to support the objection raised by the plea shew cause why this nonsuit should not be set against the plaintiff's right to recover. aside and a new trial granted. Lord Denman.-It seemed to me that as trover is founded on a demand and refusal, the demand ought to be general. Here the demand was to restore the gun in the same good plight and condition in which the gun was lent to him. The refusal is merely a refusal to do that which the notice demands. It is not a refusal altogether to deliver the gun, but merely to deliver it in the same good plight and condition. Mr. Justice Williams.—I am of opinion the return of the gun in statu quo is not that sort of demand on which a conversion may be alleged if the gun is not delivered. Mr. Justice Coleridge, and Mr. Justice Wightman fully concurred. Rule refused. Rushworth v. Taylor, M. T., Q. B. F. J. COPYRIGHT.-ENGRAVING. In a plea pleaded to bring a contract relating to an engraving within the provisions of the statutes applying to the publication of engravings, the defendant must shew that the name of the publisher and the date of the publication were on the plate when it was made the subject of contract: and a general averment that the plate is within the operation of the statute, is insufficient. Assumpsit for non-performance of a contract. The declaration alleged, that in consideration that the plaintiff would advance a certain sum of money to enable the defendant to finish the engraving of a picture of the Duchess of Richmond, the defendant promised that when the engraving was finished he would bring it to the defendant, and would give him the sole right of printing from the engraving for the period of fourteen years, and the right to take 50 per cent. on the sale of the profits of the prints taken from such engraving. The declaration went on to make the ordinary averments, and allege a breach in the non-delivery of the engraving. The defendant pleaded that the engraving was an engraving within the intent and meaning of the statute relating to prints and engravings, and that the defendant had not published the said engraving, and the promise in the declaration mentioned was made to enable the defendant to publish, sell, and dispose of the same, and for no other purpose; and that the said, promise was not in writing as required by the said statute. There was a demurrer to this plea. The Attorney General, in support of the demurrer. The statutes in question require that the name of the person publishing the print, and likewise the date of its publication, shall be upon it. To bring a print within the statute as alleged in the plea, it should be a 8 Anne. c. 19. The Solicitor General, contrá.-There is not the same strictness required in a plea of this sort as there would be in a declaration for penalties under these statutes. Enough has been alleged on the plea to shew that the contract related to a matter, which, if made the subject of a contract, must be so by writing. Per Curiam.-The objection to the plea must prevail. The party seeking to bring himself within the operation of the statutes, inust do so in a complete and perfect manner. Judgment for the plaintiff.-Colnaghi v. Warne, M. T. 1842. Q. B. F. J. CHARTER.-BYE-LAWS. A charter gave certain persons, whom it incorporated, the right to dismiss their officers at their discretion. This discretion must be exercised on matters of imputation, against which the officer has the means of defending himself. A bye-law required that these persons should exercise the power of dismissing an officer on complaint made in writing against him, and duly allowed by them. These persons dismissed the officer upon some charges which were not put into writing till they were specified in the letter which contained his dismissal. Held, that this was no compliance with the bye-law, and that the dismissal was bad. A charter gave these persons the right of making bye-laws which were to be assented to by the Earl of W. and the Bishop of D. At the time a particular bye law was made there was no Earl of W. in existence. Quære, whether such bye law was good. This was a proceeding by mandamus, tried at the last assizes for Durham, when a verdict was given for the Crown. The mandumus was applied for in order to compel the defendants to restore the prosecutor to his office as master of the school. This school had been established by charter of Queen Elizabeth, and the government of it was vested in the four churchwardens for the time being of the parish, who had full power, according to their discretion, to appoint and remove the schoolmasters and other officers connected with the management of the school. This charter was fully set out in the plea, and the defendants also stated circumstances of alleged misconduct on the part of the prosecutor. The finding on these allegations was in favor of the prosecutor. The prosecutor traversed the return and all the charges contained in it, and set out a bye law made by the governors subsequent to the grant of the charter, and by that bye law it was provided that the governors should not exercise the power of dismissing the master unless a complaint was made in writing against him, and unless that complaint was duly allowed by 64 Superior Courts: Queen's Bench.-Editor's Letter Box. ten governors before the master was dismissed. The question raised on this state of the pleadings was, whether this bye law was good, and whether the governors had not improperly dismissed the master in this instance, as there was no complaint shewn to have been made in writing against him and decided upon by the governors according to the provisions of the-bye law. avowed under the deed: Held, that the distress was justified. Replevin. The defendant avowed under a deed executed in pursuance of a power, and by which, the deed being executed on the 29th of Aug. 1832, payment of a sum therein mentioned was to be made on the 29th of February then next ensuing. It was insisted for the plaintiff, that this must be construed to mean the first 29th of February that really did occur, and not to the February in the year ensuing, which had no 29th day in it. The defendant, however, had a verdict. Mr. W. H. Watson now moved for a new trial on this ground (among others,) and contended, that the power of distress did not arise till a 29th of February really occured. Per Cur.-If there had been any duubt in the phrase, the Court must have put on it a construction to be adopted according to the rules of law, as shewn in cases of a similar kind, namely, that of taking the strict meaning of the words themselves; but where such a construction would make nonsense of the passage, it must be construed in the most natural way. So construed, it is clear that the avowry was good; on this ground, therefore, the rule was refused. Chapman v. Beecham, M. T. 1842, Q. B. F. J. Mr. Wortley moved for a role to shew cause why the judgment should not be entered for the defendants, notwithstanding the verdict, or why there should not be a new trial. The finding on the issue relating to the alleged inisconduct of the master is wholly immaterial. The real question depends on the legality and force of the bye law. This bye law is not of force; it was not made according to the provisions of the charter, which gives the governors the right to make bye laws. Those provisions require that all laws made by the governors should, before they were of any force, receive the assent of the Earl of Westmoreland and the Bishop of Durham for the time being. At the time the bye law in question was made, there was no existing Earl of Westmoreland. The law itself was therefore void, and could not be held to restrain the power of the governors, which by the terms of the charter, was to depend on their discretion. But supposing that the law was not void, then it was clear that it had been, in substance, complied with, for the letter of dismissal recited a complaint, which included the charges that had afterwards been set forth in the plea. This was, therefore, a complaint in writing, within the meaning of the bye-law, which did not state any particular time at which that complaint was to be made. Mr. Justice Williams.-There is no ground in this case for us to grant a new trial. The letter of dismissal is supposed to contain, so as to satisfy the words of the bye law, a complaint The legal privileges in the English colonies in writing against the prosecutor; but it is im- are, we believe, the same with respect to barpossible to maintain that argument, or to say risters and attorneys, as in England; but certhat the fact of writing the discharge of a man tificated conveyancers, we understand, are unfrom his office, on account of a matter men-known in the Colonies. They owe their growth tioned in that discharge, amounts to a specific in England to the war-tax on legal practitionstatement of that matter by way of charge ers, and the favour of the benchers of our against him. Inns of Court. The other Judges concurred. Lord Denman, C. J.-Whether the bye law is a good and valid bye law may be a difficult question; but it is, at all events, clear that the discretion of the governors must be exercised upon some complaint, against the imputation of which, he has had the means of defending himself. Rule refused.-The Queen, on the prosecution of the Rev. George Wray v. The Governors of the Free Grammar School of Darlington, M. T. 1842. Q. B. F. J. REPLEVIN. A deed executed on the 29th of August, 1832, authorized a distress to be levied, if a certain payment was not made on the 29th of February next ensuing. A distress was made on the last day of February in the year 1833, and in replevin the defendant THE EDITOR'S LETTER BOX. WE are not aware of any case in which it has been decided that a barrister employed to prepare a conveyance of property, or do any other conveyancing business, can maintain an action for his charges, with or without a special contract on the subject. The recent case of a physician may be considered as bearing on the question. C. A. C. inquires, whether a lord of a manor, tenant in common, can hold a court without the concurrence of his co-lords? He likens it to an advowson belonging to tenants in common. The letters of an "Old Subscriber," Y. Z. “Stet," " 'Leguleius," ," "N. S.," and "C. S.” have been received. They shall be attended to on the first opportunity. The correction of a name in the list of applicants for admission should be made to a judge at chambers, and the correction will then be noticed in our list. The Quarterly Analytical Digest of all reported Cases since August last, is now published, and completes the volume for the present year. We have deemed it absolutely necessary to publish a double number this week, in order to give the new Bankruptcy Orders, which are now in actual operation. NOTES ON THE NEW BANKRUPTCY | purpose. Quare, must it be made before the Lord Chancellor ? AND INSOLVENCY ACTS. We have already given a full account of the acts of last session, relating to bankruptcy and insolvency,* 5 & 6 Vict. c. 122, and 5 & 6 Vict. c. 116; but as they have just come into operation, and their effect is not as yet fully understood, we purpose again adverting to them. We shall take the bankruptcy act first. The first section simply provides that the act shall come into operation on the 11th of the present month. The same section enacts that "all laws, statutes, and usages, inconsistent or at variance with the provisions of the act are repealed: provided always, that the same shall continue in force in all respects whatsoever." A provision of this nature, more, perhaps, than any other, shews the necessity for some digest of the statute law. In an act not otherwise drawn in a slovenly manner, all that the legislature can do, is, to repeal all that is contrary to the act, leaving judges to determine what is contrary, and thus in fact to make, and not to expound, the law. By the previous law (6 Geo. 4, c. 16, s. 13), the petitioners for a fiat to prevent malicious applications, must have been bound in a security of 2007. to make the party amends in case they did not prove him a bankrupt; but by s. 3 of the present act, the bond may be dispensed with by the Lord Chancellor; and in such case it shall be lawful to issue the fiat without any such bond. It is apprehended, however, that a special application must be made for this • See 24 L. O). 369–396. VOL. XXV.- No. 752. By s. 4, and the first of the general orders, (ante, p. 35), fiats under this act, if directed to the Court of Bankruptcy, shall be sent by a messenger to the office of the chief registrar in Basinghall Street; and if directed to any district court of bankruptcy, shall be sent through the general post to the deputy registrar. missioners have power over the body of the purpose quit England, or to remove or conceal his may be arrested. But by s. 6, he may apgoods with intent to defraud his creditors, ply for his discharge, and an appeal as to this is given to the Court of Review. By s. 30, search warrants may be granted as to property reputed to be stolen or concealed by the bankrupt. By s. 7, no person shall be liable to become bankrupt upon any act committed more than twelve months. An alteration in the law relating to what are called “concerted acts of bankruptcy," is made by s. 8, which enacts, that no fiat in bankruptcy shall be deemed invalid by reason of any act of bankruptcy having been concerted between the bankrupt and any creditor or other person, except where a petition shall have been already presented. Another alteration is made by s. 9, with respect to the amount of the petitioning creditor's debt. By stat. 6 Geo. 4, c. 16, s. 15, the petition must have been made by E 66 Notes on the New Bankruptcy and Insolvency Acts -Points in Equity. one creditor to the amount of 1007., or by two creditors to the amount of 150l., or by three or more to the amount of 2007. But now, the judgment debt of any such creditor, or of two or more persons being partners, may amount only to 50l., the debt of two creditors to 701., or three or more creditors 1007. By s. 10, the persons therein named are added to the list of persons liable to become bankrupt. Ss. 11 to 19, provide a new process against traders, by which they may become bankrupt, and which may be considered a summary mode of trying all demands for payment of money. They are capable, as we conceive, of very extensive application. It is only necessary to recapitulate them here, but we direct our readers' attention to them. Under them, any creditor of a trader, making affidavit of his debt and of his having required payment, may require the Court to summon the trader. Forms of the summons are given in the schedule. If the trader shall not attend to the summons, or shall refuse to admit the demand, and shall not depose that he believes that he has a good defence thereto, and shall not pay or compound the debt within a certain time, or give bond for its payment, this shall be deemed an act of bankruptcy (s. 13). So, if a trader shall sign an admission of a demand in the form prescribed, and shall not pay, secure, or compound it within a certain time, this shall be an act of bankruptcy, (s. 14). If a trader shall admit part only of a demand, and not make deposition of a good defence to the residue, and shall not pay, secure, or compound for sum admitted, and as to residue, shall not pay or compound, or enter into bond to pay any sum recovered with costs; this shall be an act of bankruptcy (s. 15). By s. 16, the Court may enlarge the time for an admission of the demand. By s. 17, an admission of debt, signed elsewhere than in court, if attested by attorney of trader, may be filed, and have the same force as an admission signed by a trader on his appearance in court under this A trader summoned on affidavit of debt, is to have such costs as the court shall think fit (s. 18); and whenever a creditor (plaintiff) shall not recover the amount sworn in his affidavit of debt filed against a trader, if such affidavit be made for such amount without probable cause, the trader (defendant) shall be entitled to costs (s. 19). summons. By s. 20, a trader not paying, securing, or compounding for a judgment debt, upon which the plaintiff might sue out execution POINTS IN EQUITY. RELIGIOUS EDUCATION. WE rarely have to cite from the law reports any opinions but those relative to points of law and equity; but the following judgment relates to matters of more general interest. It has been decided by it, that where a charity had been instituted for the common benefit of a parish, and the parishioners, on an information filed for the regulation of the charity, agreed that education should form part of the scheme; Sir K. Bruce, V. C., although the parishioners fused to sanction a system of education in were of various religious denominations, rewhich it was proposed that particular selections from the Scriptures should be read, and the schools should be closed on Sundays, and in which no special provision was made for the religious creed of the schoolmaster. "As the term Education," said his Honour, "is properly understood, by all the parties, to comprehend religious instruction; that religious instruction is an essential point to be considered. In my judgment, this scheme does not provide for religious instruction in the sense in which the expression ought to be understood. Its effect is not that it does not the doctrines of the Church of England, "but provide for religious instruction according to that it does not provide for what I am able to consider religious instruction at all. If education, of course including religious instruction, is to be provided for, I apprehend it must be according to the doctrines and principles of the English Church. I know no other standard or guide to which the Court can resort; and dissenting, as I do, from the present scheme, as far as it relates to purposes of education, I must send that part of the scheme back to the master for the purpose of review, unless some other course can hereafter be suggested to the Court. If education is to be part of the scheme, it is clear, in my judgment, that, whatever may be the particular course of instruction pursued, or whatever may be the course as to exemption, if any, from any particular points of instruction, the masters, mis |