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98

Selections from Correspondence.

such a major purchaser now-a days is generally required by the conditions to enter into such a covenant with the minor purchasers, as is equivalent in effect to the rule I wish to see adopted by the Courts.

I hope this may meet the eye of some of your readers, who may be disposed to cominent on the matter, as it seems to me a very questionable doctrine which now prevails. W. F.

SELECTIONS

FROM CORRESPONDENCE.

MORAL EXAMINATION OF ATTORNEYS.
To the Editor of The Legal Observer,
SIR,

raise the character of the profession, while I have admitted that dishonesty is a disgrace not to the profession, but the man alone; I would remark, that I set out by alluding to the ge neral opinion of the public as to such conduct; and their inclination to attribute to the law as a calling the fault which resides in individual members of it. So that I cannot but think, that the enquiry I recommend would be useful in raising the character of the profession in the public estimation. And surely, though no one ought to be answerable for the misconduct of his fellow practitioner, or blamed for it; and though it cannot be shewn that the mal-practice of some of its members is a disgrace to the law as a calling, yet I think it will be allowed, that were the moral character of the candidates strictly inquired into, much of the public prejudice would be removed; and the blame and A correspondent (under the signature of E. censure of ill conduct (if such were then pracH.) has, in your Number for the 20th May, tised), would be thrown where it properly ought thought proper to quarrel with the observations to be, on the party guilty of it. I am asked which I made on the new rules, as to the ex- where I would draw the line? Perhaps this is amination of attorneys. And I must confess à point which it would be difficult to deterthat I am at a loss to know which part of his mine, but it is not impracticable. In the secommunication to notice first. I am content lection of any individual for a situation of to leave the consideration of the subject on the responsibility, we have invariably some stangrounds on which it now stands; but I cannot dard whereby we estimate his fitness. The avoid observing on one or two points on which public would never blame the examiners for E. H. has touched. E. H. says, I have sub-requiring at the hands of him, to whose mamitted that "the moral capacity" of the candidates should be inquired into, "to ascertain whether or not they would be likely to turn the ability which the rules require to an improper purpose." I simply asked what guarantee do the rules afford, that such ability will be directed to a proper end? I suggested that an enquiry into moral character might have a beneficial tendency; and I am still prepared to contend, that such an enquiry affords the only guarantee which can be given, that talent will be rightly applied. E. H. tauntingly asks, "What proof can he adduce of the honesty or dishonesty of a man who has not yet entered the profession, where alone such honesty or dishonesty can be exhibited?" This is really putting the matter on a broader principle than I advanced. Does E. H. mean to contend, that if I could prove a man's dishonesty in matters unconnected with his professional character, it would not afford a strong ground of suspicion as to his conduct when clothed with that character? I admit that "there are few, very few, who would intrust their affairs to an attorney, without having previously some knowledge of his general character and ability." But the fact is, there are dishonest clients as well as lawyers; and so, I suppose, E. H. would say, that if a man be only satisfied with his professional adviser, the object of the rules is attained. The case alluded to by me, in which the honest client becomes the dupe of a designing attorney, is left wholly unnoticed: there are many such cases; aye, and even where the client and lawyer go hand in hand in their scheme of rascality.

As to the error into which E. H. would rerepresent me as having fallen, by stating that an enquiry into moral fitness would tend to

nagement the most important of all public du-
ties are to be entrusted, the clearest evidence
that he is morally fitted to administer so res-
ponsible a trust. As to the cruelty and seve-
rity of the master, I look upon it as the last
argument which can be adduced in favour of
E. H.'s proposition. If men can be found who,
from motives of interest or otherwise, will cer-
tify (even as the system now stands) as to a
man's fitness for admission as an attorney, when
he is guilty of conduct, which, if publicly pro-
claimed, "would brand his name with a mark
of infamy for ever," the sooner that system.
is altered the better. It is this palliation of
crime,—this false delicacy as to its exposure,—
this whine about "severity," which perpetu-
ates the evil, and extends the effect. What party
could reasonably complain of the plan which I
recommend? It would rest with the candidate
himself, as to what certificate should be given
of his character.
HY. WN.

WESTMINSTER SMALL DEBTS COURT.

Sir,

Your correspondent I. H., in his letter at p. 39, of the present vol., appears to me to misapprehend the intention of the late act on this subject. I think on a closer perusal, he will find its object is not to compel plaintiffs to resort to the County Court for the recovery of debts from 40s. to 51., but merely to give them the option of so doing, should they be inclined. It extends the jurisdiction of the County Court to debts under 57., and then goes on to say, (see sec. 86,) "that nothing herein contained shall destroy, limit, or prejudice the jurisdiction of his Majesty's Courts of Record at Westminster, or other courts in cases wherein

Superior Courts: Lord Chancellor.

the debts shall exceed the sum of 40s., but the said Courts respectively shall have the same powers, privileges, and jurisdiction, as they had before the passing of this act."

Its object then must be to extend the juris. diction of the County Court, without diminish ing that of his Majesty's Courts of Record, and therefore, the only construction which the act will admit of, is, that it intends to leave it to the option of the plaintiff to which tribunal he chooses to resort.

SUPERIOR COURTS.

F. P. C.

Lord Chancellor's Court.

PRACTICE IN BANKRUPTCY.-SECOND FIAT.

99

eight days were allowed a petitioning creditor to prosecute a commission; and if in that time, and one day further, he took no proceedings, then a commission was to be granted on the application of the first new party applying, and to the exclusion of the original applicant. In the present case the full time had elapsed, a new commission was applied for, and in the course of being issued; and although the Court of Review had thought fit, on the matter being brought under its consideration, to direct that the fit to the first petitioner should be renewed, it was conceived that the second party had now the exclusive right to prosecute his fiat.

Mr. Seranston and Mr. Anderdon, for the original petitioning creditor, would not contend that the order of the Court of Review could be carried into effect by the prosecution of the two fiats, A fiat in bunkruptcy was not prosecuted for but conceived that this was not a case in which twenty-four days, and five days more elapsed their client was to be excluded under the order before a mistake, discovered on the twenty- of Lord Loughborough. The first fint had been fifth day, was rectified. At the expiration referred to the Blandford list, under an impres of the twenty-nine days another solicitor, for sion that the only acting commissioner of the a different creditor, applied for a new fiat, Poole list, was disqualified to act; but the mowhich was issued. The Lord Chancellor, on ment the mistake was discovered, an applica appeal, confirmed the fat to the new petition was made to the Court of Review for leave tioning creditor, and ordered the former to be annulled.

under the authority of the Court of Review in Bankruptcy, the case did not come within the order referred to, and the first petitioning creditor was still entitled to a preference.

to sue out a new fiat, and on that leave being given, new papers were sent for, and every preThis was an appeal from an order of the Court paration made to prosecute the commission. of Review in Bankruptcy, which permitted a The papers did not arrive till the twenty-eight petitioning creditor to sue out a new fiat days expired. As the delay had arisen from à against a bankrupt after the time for present-mistake, and as the error had been corrected ing a former fiat to the same creditor had elapsed, and a fut to a second petitioning creditor was bespoke against the same bankrupt. The bankrupt was a trader, residing at Poole, in Dorsetshire. On the 24th of April last, a solicitor applying for a fiat for a petitioning creditor, stated in the affidavit that the commissioner for the Poole list was a debtor of the estate, and that it would be expedient to direct the fat to the next nearest list. The fit was issued and so directed, but nothing was done till the 18th May, when it was discovered that the statement respecting the Poole commissioner was founded on a misapprehension; and, some proceeding being threatened by that commissioner, an application was inade for a new fiat, to be directed to the commissioner of the district. This application the Bankruptcy office refused to grant, without having a fresh affidavit and other papers. Fresh papers were accordingly sent for, but they did not arrive until the 22d of May; and on the morning of the 23d another solicitor appeared at the office, claiming a fiat in the name of another creditor, which was ordered. The Court of Review, on application of the first petitioning creditor, directed a new fiat for him. Mr. Bethel and Mr. Wright, for the creditor who applied for the second fiat, contended that as the first had not prosecuted his fiat within the legal period of twenty-eight days, there was a right in their client to have the inanagement of the proceeding, to the exclusion of the party originally petitioning. The order under which they claimed was that of Lord Loughborough, issued the 26th of June, 1793,a by which twenty

a See also an order of Lord Thurlow, 6 Dec.

The Lord Chancellor said the orders of the Court of Review were good for nothing, unless sanctioned by the authority of the Great Seal, and therefore the application made to that Court had no bearing on the question. It was clear both fiuts could not stand. The orders referred to were decisive on the point, that if a commission was not prosecuted in twenty-eight days, and a day further, the next applicant for a cominission was to be preferred. The course pursued by the second creditor was regular. No reason had been given for a departure from the orders in favour of the person who now sought to get rid of their effect. He had originally fallen into an error respecting the proper commission, and for twenty-five days he took no steps to correct his error, or prosecute the fiat; and after discovery of the error, he al lowed the whole time limited by the orders to elapse, without profiting by the discovery. There was no pretence for allowing the fiat to the first creditor to be proceeded with. That fint, therefore, must be annulled, and the se cond, issued to the next petitioning creditor, must stand. With respect to costs (for which the counsel for the second creditor applied). his Lordship gave leave to apply for them to the Court of Review.

In re Scott, at Westminster, May 27th,

1837.

1788, acted on in ex parte Masterman, 18 Ves. 298.

100

Superior Courts: Lord Chancellor; King's Bench.

PRACTICE. INQUISITION OF LUNACY.

brokeshire, which was an ancient Welsh county, and no part of the Lordship's marches in Wales; and at the assizes, they moved in ar

An Inquisition finding G. B. of unsound mind, incapable of managing his lands, &c. but capable of taking care of himself, is contradic-rest of judgment, that the 26 Hen. 8, c. 6, did tory and bad; but a new commission may be issued on the original petition.

not extend to all the principality of Wales, but only to the Lordship's marches, where the instatute was recited to be. The case was brought convenience intended to be remedied by that up by certiorari to this Court, and after hearing counsel, the Judges were unanimously of opinion, that the Justices of assize in the next English county had a concurrent jurisdiction throughout all Wales with the Justices of the

The Solicitor General and Mr. Shelford moved to quash an inquisition of lunacy, by which it appeared that the jury found George Bennett to be of unsound mind, and incapable of managing his lands, tenements, hereditaments, &c. but capable of taking care of himself, such a return to the commission was in-grand sessions, and consequently that the de

consistent and could not stand.

Mr. Wigram opposed the motion. The Lord Chancellor was of opinion, that the finding was bad, but rather than put the parties to the delay and expense of proceeding again from the beginning, he would direct a search to be made by the secretary of lunatics for any precedent for issuing a new commission on the petition for the former commis

fendants were well tried at Hereford. The death, and were executed in Kent Street by defendants thereupon received sentence of the officers of the Marshal. The punishment here was not discretionary. If it was, the Court would look at the record, and not being acquainted with the circumstances, would not sentence the party; but where, as in this case, the sentence must be pronounced at all events, this Court would pronounce it. In a case siOn a subsequent day, his Lordship said se-milar to the present, Rex v. Nicholls, the veral precedents were found at the secretary's office, justifying him in issuing a new commission on the original petition, and he therefore

sion.

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ordered that to be done in this matter.
In re Bennett, a lunatic. At Westminster,
May 31st, and June 3d, 1837.

King's Bench.

[Before the Four Judges.]

INFERIOR COURT.-ERROR.

Lord Chief Justice was of opinion, that this Court might give judgment or might quash the certiorari quia erronice emanavit, and send the case to the Court below, with directions as to what judgment ought to be pronounced. If an inferior Court pronounced a ridiculous judgment, as that any prisoner shall walk a certain distance with peas in his shoes, this Court would not let such prisoner escape, but would pronounce the proper sentence. This Court had itself pronounced the judgment in the case Where an inferior Court has pronounced of The King v. Lookup. In the case of The anerroneous judgment, and entered it of King v. Kenworthy, this Court sent the case record, this Court cannot alter that judg-to the Court below to give judgment, no judgment, nor remit the case to an inferiorment having been there properly given. In Court, but must reverse it. The King v. Ellis, the defendant was conA judgment recorded against burglars to be victed of an offence for which the punishment transported, is an erroneous judgment. In was discretionary, and that case would most the first instance, the judgment ought to probably be relied on by the other side, because have been judgment of death. the Court then reversed the judgment. But These defendants had been convicted at the that case differed from the present, for there Monmouth sessions of the offence of burglary, the judgment of the Court below had been and the Chairman, Lord Granville Somerset, at pronounced; while here, the judginent passed once passed upon them sentence of transporta-by the sessions was, in law, no judgment at all; tion, Bourne for seven years, and the two others for life. That sentence was recorded against them as the judgment of the Court. They then brought a writ of error, alleging for error, that the judgment recorded ought to have been judgment of death.

and this case, therefore, more nearly resembled the case of The King v. Kenworthy than that of The King v. Ellis. The punishment here was certain, not discretionary; the judgment of the Court below was altogether bad, and was therefore the same as if none had been given, and this Court might therefore, if the prisoners insisted upon it, at once proceed to give the proper judgment.

Mr. Peacock, on behalf of the prisoners, observed, that in all the cases cited where this Court had remitted to the Court below, or had itself passed sentence, no judgment had previously been given. Such was the case in The

The Attorney General for the Crown admitted the error, but contended that this Court was at liberty either to correct the judgment, and at once pronounce a proper judgment upon the prisoners, or to remit the case to the sessions, with directions to them how to deal with it. This latter course had been pursued in the case of The King v. Garside, and also in that of The King v. Athoe.b In the latter case, the defendants had been convicted at the Herefordshire assizes, for a murder committed in Pem-13 East. 412, n.

a 2 Adol. & Ell. 266,

Str. 553.

c 2 Strange, 1227, but much better reported

d 3 Burr. 1901.

e 1 Barn. & Cres. 711.
f 5 Barn. & Cres 395.

Superior Courts: King's Bench.

101

already been pronounced, and it would not be proper to call on the same Court to pronounce any other. Then the next question is, whether we can pronounce another judgment. Now on that point the case of The King v. Ellis is a decisive authority. I do not find any case in point shewing that we may pronounce such a judgment, and that case distinctly declares that we may not do so. His Lordship here read the argument of the counsel for the Crown in The King v. Ellis, and that part of Lord Tenterden's judgment applicable to this point:-" Here the Court below has passed a judgment, and that judgment being erroneous, we think there is no ground to send it back to be amended." His Lordship then continued: It never occurred to the very learned counsel who argued that case on the part of the Crown (the present Mr. Baron Parke) to contend that this Court could safely amend that judgment which it was called upon by writ of error to reverse: he contented himself with arguing that the case might be remitted to the Court below; but even on that point, this Court, in which there sat Lord Tenterden and Mr. Justice Bayley, decided against him. It is impossible to suppose that the present point would not have been taken by such a counsel, had there been the slightest ground to believe that it could have been put forward with any chance of success. It appears to me, therefore, that in the absence of all direct authority in support of such an argument, and with that implied authority against it, we cannot do what is now asked. The judgment of the Court below is for this purpose conclusive on us; and we must say, as the Court did in the case of The King v. Ellis, that the Court below having passed judgment, we cannot remit the case to have that judgment altered, but it must be reversed.

King v. Athoe and The King v. Nicholls. But here a complete judgment had been given and entered of record, and if that judgment was wrong, the sessions had no power to pass a fresh judgment. If the case now went back to the quarter sessions, and a fresh judgment was pronounced, there would be two judgments on the same record, which would be clearly bad. It would be equally bad, if such second judgment was passed by this Court. In The King v. Walcott, the judgment omitted an essential part of the punishment required by law, and was therefore held to be bad, and the Court would not permit any amendment. The King v. Garside was not at all in point. The judgment there was correct enough, and all that this Court did was to award execution of it. There was no error in that judgment; but here the error was admitted, and yet the Court was asked to give effect to the judgment. There was no case whatever, where a defendant having brought a writ of error on the ground that the judgment was erroneous, this Court had given the right judgment, and so amended the error of the Court below. The case supposed by the Attorney General as to the Court below giving judgment against a prisoner, to walk a certain distance with peas in his shoes, was a strong case to shew the impropriety of remitting to the Court below, or pronouncing judgment on a conviction made in it. If an inferior Court could be so grossly ignorant of law as to pass such a judgmeut, it would hardly be fit to receive or act upon the directions of this Court; and therefore the case ought not to be remitted to its jurisdiction, while it was equally clear that this Court ought not to pass judgment on a conviction obtained in an inferior Court that had so misconducted itself, for it must be manifest that such a Court could not be relied on for having given the prisoner a fair and legal trial. The case of The King v. Ellis, must decide the present. This Court cannot, in the present instance, either remit the case to the sessions, or pronounce judgment on the finding at the sessions; but was bound to reverse the judgment which had been unlawfully pronounced, and to order the prisoners to be discharged. Mr. Justice Patteson concurred.-If no Lord Denman, C. J., after stating the cir-judgment had been given, the Court might cumstances of the indictment, the conviction, perhaps, do one of the two things now dethe sentence, and the certiorari, said:-On the manded; but the judgment had been entered one hand, it is contended on the part of the here, and this Court could now only affirm or Crown, that though this judgment is clearly reverse it. He thought that the case of The wrong, we may remit the record and direct the King v. Ellis, was decisive on this point, and quarter sessions to pronounce a proper judg-that the judgment of the Court below must be ment, or that we may take upon ourselves to pronounce such a judgment as we know on the conviction had against these prisoners to be contrary to law. As to the first, it is clear that we have not power to do what is asked. It cannot be said that there is no judgment, as was the case in The King v. Athoe. If the Court below had in the first instance asked our directions as to the judgment, we might have given them; but here the judgment has

g 4 Mod. 395.

Mr. Justice Littledule concurred.-In Hawking's Pleas of the Crown, tit. Avoiding judgment, was this passage, "If the judgment of the Court below is erroneous, it must be reversed and the defendants discharged; but if only the award of execution is erroneous, that may be set aside and a proper execution awarded."

reversed, and the prisoners discharged.
Mr. Justice Williams concurred.
Rule for reversing the judgment absolute.-
Bourne and two others v. The King, T. T. 1837.
K. B. F. J.

King's Bench Practice Court.

ATTORNEY.-EXAMINATION OF ARTICLED CLERK QUESTIONS.-EXAMINERS' RUles.

If an articled clerk has not been furnished in due time with the questions, pursuant to

102

Superior Courts: King's Bench Practice Court; Exchequer.

the new rules for the purpose of examina- | examine the clerks, they must fix some period tion, in consequence of the London agent's within which the answers are to be sent in. negligence, the Court will allow him to Under all circumstnaces, however, the present send in his answers after the usual time, application may be granted, on condition of the on the terms of the London agent paying | London agent paying the costs of this applicathe expenses of the application."

Cowling applied on behalf of an articled clerk, to be allowed to send in his answers to the questions propounded by the examiners at the Incorporated Law Society, although the day for sending them in, as directed by ar rangements of the examiners, had passed. The affidavit on which the present application was founded, stated, that from the omission of the London agent to the attorney with whom the clerk's articles had been served, the questions to be answered had been sent down so late into the country, that it was utterly impossible for them to be answered in such time, as to be transmitted to be deposited before the day fixed by the examiners, before the actual time of examination. The questions had been answered, and had been transmitted now. The examination had not yet taken place, and therefore, no injury could result. It was also to be remembered that this rule, which required the answers to the questions to be sent in before a certain time, was a rule made by the examiners themselves, and not by the Judges. Perhaps the same strictness would not be applied to the construction of them, as to the rules made by the Judges.

Coleridge, J., thought that it was very inconvenient that persons interested in these rules would not make themselves acquainted with their provisions. They had now been in force more than a year, and yet several applications in the present term had been made, merely on the ground of the persons who had not complied with the rules, being unacquainted with their provisions. The Courts had determined that under those circumstances, where the deviation from the rule proceeded from ignorance merely, no relief would be given.

tion.

Rule granted accordingly.-Ex parte Holland, T. T. 1837. K. B. P, C,

Exchequer.

FORM OF ISSUE.-APPLICATION TO JUDGE.

The substitution of 1837 for 1836, as the dute of the writ of summons, and of the word de fendant for defendants, and the award of venire being directed to the "then" Sheriff, in the issue, are irregularities which should be amended on an application to a Judge at Chambers, and not to the Court.

Hoggins had obtained a rule for setting aside the issue for irregularity. The irregularities were, that the date of the writ of summons was stated to be Nov. 1837, instead of 1836, that the word defendant was used frequently instead of defendants, and that the conclusion was thereupon the then Sheriff is commanded,"

66

&c.

Cowling now shewed cause, and contended, that although the issue was irregular in these particulars, yet that the proper course would have been to apply to a Judge at Chambers to amend it at the cost of the plaintiff. The defendant's attorney had besides accepted the paper book, which was a tacit admission that it was properly made up.

Hoggins, in supporting his rule, urged, that as the record was framed from the issue, it was of the utmost importance that it should be cor. rectly made up, for it might be required at the trial to know the precise date of the suing out the writ of summons. In Peel v. Ward, 5 D. P. C. 169, the Court had set aside the issue, as well as the Judge's order to try the cause before the Sheriff, and the notice of trial, because the issue was irregularly drawn.

Cowling observed that the circumstances in this case, which had given rise to the omission in the present case, would not be considered as amounting to ignorance on the part of the person applying, and therefore did not come within the reason of the determination Alderson, B.-In that case the issue was of the Court, to which allusion had been made. drawn in such a forin, that the Judge had no Here, the fault arose entirely from the omis-power to make the order for trial before the sion of the London agent, and could in no Sheriff. Here the irregularity is merely an inway be attributed to the applicant; and the formality. rule in question was one of the examiners' rules only. The determination of the Court in question, could only be considered as applying to the rules which the Court had made.

Coleridge, J.-It is to be observed that the Court will not deal lightly with the rules made by the examiners, but will require strict obedience to them. If the examiners are to

a This is not strictly correct, for though the regulations were proposed by the Examiners, they were approved and signed by the Judges, and cannot be altered without their sanction. ED.

Hoggins. The issue should strictly follow the form given by the rule. The award of venire is besides incorrect, as it is directed to the "then" Sheriff.

Alderson, B.-Peel v. Ward is no authority for this case. The rule must be discharged with costs, and an application to amend the issue at the cost of the plaintiff must be made to a Judge at Chambers.

Rule discharged.—Iken v. Plevin and others, E. T. 1837 Excheq.

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