must pay; and it provides compensation for most of the present sinecurists. Under this measure there will be no relief at all to the public for many years, and a very inconsiderable one at any future time. The whole bill is a deception, and we shall be much disappointed if it passes the Lords in its present shape.

THE Session of Parliament which is about to close, will not however come to an end without some bills of importance relating to The bill altering the law relating to Wills, the law being passed. The last week has shewn how much may be done by the work--by far the most important measure relating ing members of the House; and this fact to the law which has been brought forward in this Session,-will certainly pass pretty would seem to shew the necessity in a future Parliament of appointing a General much in its present shape. We have already Law Committee, before which all law bills stated our general approval of this bill, and should first be brought, and there discussed, we shall immediately bring its provisions and when passed through this ordeal, be before our readers, although it will not come proceeded with by the whole House. It is into immediate operation. idle to suppose that either branch of the legislature, where there is a full House, can attend to the details of a bill of this kind. They can discuss great questionsthey can settle great principles-but how is it possible for them to enter into the details The Imprisonment for Debt Bill will be of legal construction, or the minutiæ of legal distinctions. This Session of Parliament proceeded with, but we very much doubt has sufficiently shewn this; but in the pre- whether it will be carried through Parliasent thin state of the House these matters ment. It needs, at any rate, minute attencan be attended to, and we shall certainly be tion to all its clauses; and how can this now be given? Serjeant Talfourd has postglad to see some Standing Committee appointed in the next Parliament for the pur-poned his Copyright Bill until the next Parpose which we have mentioned. It should liament, when it will be introduced in a consist of all the lawyers in the House, and more complete form. Captain Pechell's Bill, such other members as would be most likely extending the Jurisdiction of the Sheriff's Court, has also been abandoned.

to assist their deliberations.

The measures of Lord John Russell for the amelioration of the Criminal Law, will also, in all probability, become the law of the land in this present Session. They will not, we understand, be opposed in either House.

There are some other Bills, for the state Having thrown out this hint, let us see what has been done in the present week. of which we refer our readers to our weekly We regret to find that the Common Law list; and, indeed, so far as the law is conOfficers Bill has passed the House of Com-cerned, the present Session will not, after mons. We have repeatedly adverted to this all, be an unimportant one.

bill. It professes to be founded on the report of the Commissioners, but departs from their recommendations in appointing three additional officers, for which the suitors VOL. XIV. NO, 406,

L

154

The Grievances of the Commissioners of Bankrupts.

THE GRIEVANCES OF THE COM-fold degree, as being a means whereby I shall MISSIONERS OF BANKRUPTS.a

THE complaints which we have for some
time heard in professional circles as having
been made by the Commissioners of the
Court of Bankruptcy, have at last found their
way to the public in the shape of the pre-
sent pamphlet. We are glad that Mr. Fane
has brought them forward; and we think
the profession will at once admit their vali-
dity, although perhaps they are of two deli-
cate a nature to be fully understood out of
our own pale. They are simply these :-
The Court of Bankruptcy was established
with much bustle and ceremony. Its Judges
and Commissioners were led to expect that
they would rank next after the Judges of the
land; and that this position should not be
confined to the Table of Precedency, but
would be carried through in a complete and
handsome manner. So far as the debates
in Parliament, and even the words of the
Bankruptcy Court Act went, all was well;
but no sooner had the Court been formed,
than this apparent intention seemed to fall
through. The Judges and Commissioners
found to their surprise that their position
in their profession remained as before. If
they happened to be Serjeants, they re-
mained in their place in Serjeant's Inn.
without gaining any step. If they happened
to be Benchers, they so continued; but if
they had only stuff gowns when appointed,
they remained still below the dais, and were
not invited to the Bench. They were not
even invited- which is not pressed by Mr.
Fane, but which we may mention-to the
Chancellor's breakfast on the first day of term,
although we believe they were at one time
nearly gaining this trifling distinction. Now
all this may not appear very grievous to
non-professional persons. The Chancellor's
chocolate is no better than it should be; the
feasts of the Benchers are of no great im-
portance as feasts; but professional honours
and distinctions are dear to every profes-
sional man.
This point is well stated by

Mr. Fane: :

"Folly, which sometimes calls itself philosophy, affects to despise the distinction of rank. I pretend to no such wisdom, if wisdom it be. I value professional distinctions for their own sake; I value them as the just rewards of honour and industry; but, if I am in a public situation, then I value them in a ten

be the better enabled to perform my public duties. The mass of mankind can judge only through the judgment of those whose office it is to affix the stamp of authority, and, if the stamp be withheld, whatever may be the sterling value, the coin is not current. I know indeed that it may, and probably will be contended, that the withholding of any practical recognition of the rank conferred by his Majesty upon the Members of the New Court, is not attributable to his Majesty's Government; and that although the Lord Chancellor and the King's Attorney General were parties to the resolution, and sanctioned it, they were acting as individual members of a private society, and are not acts or their votes, as such members. It canresponsible in their public capacity, for their not, however, be successfully contended, that the Law Societies are private societies; they are the depositaries of a great public trustthat of admitting or excluding the King's subjects from practising as advocates in the King's involves a power of taxation, and is the source Courts; their possession of which privilege of all their power, wealth, and consequence; as such depositaries, they are not a private society, but a public and privileged body, which ought to be in close and intimate alliance with the Crown, and is bound, upon every constitutional principle, not only not to oppose or discountenance, but to sanction and support every lawful act of the crown. But, if this argument were not conclusive, there is another which is obvious and unanswerable; the conferring of professional rank and precedency is part of the perogative of the Crown, and the Crown can at any moment issue such a patent as will be a reality, and not an unsubstantial nothing.'

Mr. Fane does not attempt to account for the hardship of which he complains. He confines himself to stating it, and protesting against it. He seems, however, to hint at what we will take the liberty of mentioning plainly. The grievances of the Commissioners spring from the same cause which occasions all the other grievances arising from the present state of the Inns of Court-the irresponsibility of the benchers. They may do what they please; they may refuse professional honours, or allow them, and there is no one to call them to account either for their profusion or niggardliness; and although we admit they rarely exercise their powers in an offensive manner, yet the present instance is one which we think shows that they should be controuled. We will state the steps which the Commissioners have taken in the matter:

"One of the Judges of the New Court, who a A Letter, addressed to his Majesty's At- happened to be a member of Serjeant's Inn, torney-General, by C. Fane, Esq., one of the clained to take rank in that learned body in Commissioners of his Majesty's Court of Bank-conformity to the provisions of the letters paruptcy. Ridgway. tent. His claim was rejected; and thus was

Where a Deed executed in Ignorance of Rights, will be set aside.

155

A DEED, EXECUTED IN IGNORANCE OF RIGHTS, WILL BE SET ASIDE.

any

WHEN a deed, settling property, is exe-
cuted by a party in ignorance of his rights
and interests in that property, a Court of
Equity will set it aside, and it is not neces-
sary that there should be
fraud existing
in the other parties to the transaction.
Thus, in the case of Willan v. Willan,
an agreement was decreed to be delivered
up, by Lord Eldon, C., on the ground, not of
fraud, but surprise, neither party under-
standing the effect of it; viz. a lease with
covenant for perpetual renewal at a fixed
rent, of premises held under a church lease,
renewable upon fines continually increas-
ing.

the first blow struck at the respectability of WHERE the New Institution. Subsequently, one of the Commissioners,-relying upon the plain words of the letters patent,-unable to believe that those words, so evidently in conformity to the public and parliamentary declarations of the King's Government, could mean nothing, thinking it possible, that the decision by the society of Serjeant's Inn might have proceeded upon some principle peculiar to that very ancient society, and connected with its ancient usages, and satisfied, that, at all events, it was his duty to make a formal claim,-addressed himself to the Law Society, of which he was a member, and preferred his claim to be invited to the Bench. His claim also was rejected, and, as he was informed by a letter from his Majesty's Attorney General, unamimously. At the commencement of the present year, I also determined to make a formal application to the society, of which I am a member. I did so, not because I had any reason to expect a fa- | vourable result, but because I thought that In Groves v. Perrin, the plaintiff marcircumstances would occur in the course of the ried the defendant in 1787. In 1792 be present Session of Parliament, which would deserted her and her children, and never afford me an opportunity of bringing the whole subject under the notice of the legislature and afterwards contributed to their support, the Crown; and I thought, that I could not The defendant lived with and had been suptake any step for that purpose with propriety, ported by her brothers, ever since her sepawithout having previously made a forinal appli-ration from her husband, and her conduct cation to have my apparent claim recognized. had been irreproachable. In October 1827, I therefore addressed a letter to the Lord Chan- a deed was executed by the plaintiff, settling therefore the Head of the Society of Lincoln's a share of his wife's (the defendant) in some Inn for the present year, in which, after cal property which had come to her by the ling his attention to the first clause of the Court | of Bankruptcy act, and the strong language of his Majesty's letters patent, I stated my claim and having endeavoured to enforce it by arguments deduced from the usages of the society, from which I drew an inference that it was one of their fundamental principles to recognise, as entitled to the place of honour within their own circle, those members upon whom the crown had thought fit to bestow honour publicly, I requested an answer.

cellor, who happened to be the Treasurer, and

"To this letter no answer was returned; not, I am sure, from any want of courtesy in the noble individual to whom it was addressed, but because, as, it may be presumed, the society felt that it was easier to adhere to their resolution, than to justify it."

We have done our best to endeavour to

introduce a reform in the Inns of Court-to render the Benchers responsible for their trust-to make the property of these societies available for the objects for which they were founded; and we have no hope of any better state of things until these points are gained. Until then there will be no remedy for the slights of which Mr. Fane so justly complains, which are not more easily endured at a time when a silk gown ensures a call to the Bench, and may almost be had for the asking.

death of a relation. The Vice Chancellor (Sir L. Shadwell), set aside the deed, although there was no evidence of fraud, on the ground that there was not a sufficient disclosure made to the plaintiff of what he was entitled to have.

The same principle has been acted on by Lord Brougham, C., in M'Carthy v. Decaix, who held that when a person agreed to give up his claim to property in favour of another, such renunciation would not be supported, if at the time he was making it he was ignorant of his legal rights, and of the value of the property renounced,—especially if the party with whom he dealt possessed and kept back from him better information on the subject. 'On the whole" said his lordship, it is sufficiently established that when Mr. Taite agreed to give up any claims to his wife's fortune, he was acting under a mispprehension in two most believed that Mrs. Taite had by law ceased material particulars; in the first place, he to be his wife, an impression which seems to have been the main-spring of his libe

66

rality,—and secondly, he was wholly igno

a 16 Ves. 72.

b 6 Sim. 576; S. C. 12 L. O. 421.

c 2 Russ. & Mvl. 614.

156

Such was the

The Law of Attorneys.-Proposed Alterations in the Law of Partnership. rant, or rather he was positively misinformed, I sioners to refer to the creditors' decision as to with respect to the amount and value of her how much should be allowed. property; and his ignorance was certainly law and practice when 6 G. 4, c. 16, passed: not shared, at least in an equal degree, by decision of the creditors, under the sanction the claims of apprentices were referred to the the parties with whom he was dealing.

It is to be remembered, however, that when family arrangements have been fairly entered into, without concealment or imposition on either side, although the parties have greatly mistaken their rights, a Court of Equity will not disturb the quiet which is the consequence of that agreement.d

THE LAW OF ATTORNEYS.

ARTICLED CLERK.

of the commissioners What then was the in-
tent of the 6 G. 4, c. 16, s. 49? Was it to in-
troduce new law altogether, or to give the
commissioners power of settling the amount at
once, without referring to the creditors? Sup-
pose then this question arose before the passing
of the 6 G. 4; then the commissioners would
have referred the question to the creditors;
the act introduces no further change than to
give the commissioners power without refe-
rence; it therefore appears to me both correct
and safe to construe the word "apprentice," in
s. 49, as including an articled clerk.
Court ought not to make any declaration as to
cancelling the articles; whatever may be the
consequence of this Court declaring the peti-
articled clerk is entitled to, without its being
tioner within sec. 49. Such consequence the
mentioned in the order." Ex parte Fussell, in
re Bush, 3 Mont. & Ayr. 67.

LAW OF PARTNERSHIP.

The

By the 6 G. 4, c. 16, s. 49, it is enacted, that when any person shall be an apprentice to a bankrupt at the time of issuing the commission against him, the issuing of such commission shall be and enure as a complete discharge of the indenture whereby such apprentice is bound to such bankrupt; and if any sum shall have been paid on be- PROPOSED ALTERATIONS IN THE half of such apprentice. it shall be lawful to prove for the same under the commission, according to the time which the apprentice has been with the bankrupt. It has very lately been decided that an articled clerk is an apprentice within this section, by Mr. Justice Cross and Mr. Justice Rose, Chief Judge Erskine dissenting. We extract a portion of the judgment of Sir George

Rose:

A modification of the Law of Partnership has been proposed in a pamphlet by Mr. H. S. Chapman, of the Middle Temple, called "The Safety-Principle of JointStock Banks and other Companies," which appears to us to deserve some notice. The author commences by stating that—

According to the English law of partnership, every partner is responsible to third parties for all the engagements of the partnership, not merely to the extent of his contribution to the common stock, but also to the full extent of his separate estate or private property.

"An agreement between two or more partners may modify or limit this liability as far as the relative position of such partners towards each other is concerned; but in relation to the community at large, the liability of partners is without limit.

Abstractedly, articled clerks and apprentices are not creditors of their bankrupt master, under the articles nor any of the covenants contained therein; there is nothing whereon to found a provable debt; nevertheless, such persons as the present petitioners have always, in practice, been treated before the commissioners, as creditors. Now the act is to be construed beneficially for creditors; and though that applies to the general body of the creditors, yet it removes out of the way of this applicant the difficulty of being in a situation adverse to the estate. When the 6 G. 4, c. 16, was passed, the claim of an apprentice to prove was universally admitted. In Ex parte Sandhum, Atk. 149, an apprentice asked to have a portion of his premium returned; proof was not allowed, but a reference to the creditors as to what sum should be returned; and on a subsequent occasion it became necessary to decide in a suit in equity what portion of "Without this limitation of liability, a numthe premium should be returned, and it was ber of individuals may associate together, asreferred to the master to report how much sume the title of a corporation, and govern should be returned. From thenceforth it be- themselves by bye-laws; but towards the pub came the universal practice of the commis-lic at large they preserve all the features of an ordinary partnership. A creditor, unless the

"By a special act of the legislature, or by a royal charter (which is an act of one branch of the legislature having the force of law), this liability may be limited to the amount of the capital invested or subscribed, so that shareholders are liable to the amount of their respective contributions, and no further. This constitutes a privileged trading corporation, properly so called.

d Gordon v. Gordon, 3 Swanst. 463, and association shall have availed itself of the act cases there cited.

about to be cited, may choose his remedy

Proposed Alterations in the Law of Partnership.—New Bills in Parliament.

against whomsoever among the partners he deems the richest, leaving that partner to recover from his co-partners, either at law or equity, as best he may be able.

"The act of 4 & 5 W. 4, c. 94, places a limitation upon this choice of the part of the creditor, by allowing a joint-stock company, or association, on fulfilling certain conditions, to 'sue and be sued in the name of one of its officers, without in any way affecting the ultimate liability of the several partners. The effect of this is to relieve individual partuers from special actions, until the joint estate of the association has been divided by the creditors, after which individual liability commences. Thus whilst unnecessary litigation is avoided, the ultimate security afforded by the separate estate of each partner is left unimpaired."

He then proceeds to point out the French Law of Partnership, so far as relates to

what are called Commandite Associations.

"Commandite associations consist of two or more individuals, of whom one or more undertake the management, and are held indefinitely responsible for all engagements, as in the case of ordinary partnersbips; and the others are mere shareholders, responsible only to the amount of their contributions, either paid up or contracted to be paid (qu'ils ont versé ou promis de verser) into the joint stock of the associations.

"The first, called commandités, may be designated managing partners; and the second, called commanditaires, non-responsible shareholders, or simply shareholders."

"When there are several responsible partners (commandités) the association, as between them and the public, is an ordinary partnership; but, as between the non-responsible shareholders and the public, it is a privileged

company.

"It is an essential condition of this species of trading association, that the non-responsible stock-holder (commanditaire) take no part in the management. If he perform any act of management (acte de gestion) his responsibility ceases to be confined to the amount of his contribution; he becomes liable indefinitely for all the engagements of the association in other words, he makes himself a responsible partner ―he ceases to be a commanditaire, and becomes

a commandité.

:

"This rule is without exception. A shareholder cannot be employed by the association even by power of attorney, and it seems to be a corollary from the same rule, that a clerk or servant cannot become a shareholder without incurring the full responsibility of a managing partner.

"In order to constitute a commandite association, it is necessary that in the deed of association it be agreed that such and such of the associates be excluded from management, and that their risk be limited to the amouut of their respective contributions. According to Pardessus, the ablest French writer on commercial law, this need not be stated in express

157

terms, no other explanation being necessary than that such and such are non-responsible shareholders; that expression being deemed sufficient "without the periphrasis which it would otherwise be necessary to employ."

"The law of France does not require that the deed (l'acte) of association be published. It may, like an ordinary deed of partnership, be executed in private, but it is imperatively necessary that an extract be published, stating, that among the associates there are so many shareholders of limited responsibility; but without indicating their names. The "extract" must also announce in what sums, or in what species of property (objects) their contributions consist, and whether they have been paid up or still remain to be paid up. If the publication of the extract be neglected, the association is deemed an ordinary partnership. (Pardessus, tome, 4 ème, p. 118.)

the highest importance, as it is the only mode "This annunciation is deemed by Pardessus of of informing third parties, who deal with the association, that in addition to the personal responsibility of the managing partners, the capital of the association is composed of such and such sums, of which a creditor can demand payment of the shareholders, unless these latter can prove that they have already paid up the whole amount of their contributions. A false annunciation is deemed an act of swindling (une escroquerie) and is punishable as such."

Mr. Chapman recommends the adoption of the principle of these associations to all kind of joint-stock societies in England, and we think that in many cases it would be useful to adopt the recommendation. He shews that in those companies in which a large capital is required, as well as skill, the plan of a union of many shareholders is highly advantageous. Skill, he considers to be the characteristic feature of private traders, and capital, that of public companies, and that Commandite" associations may unite the features of both; and he contends, particularly, that the plan may be successfully applied to joint-stock banks.

A Bill has just been brought in by Mr. Poulett Thomson, bearing somewhat on this subject, which we shall notice at an early opportunity.

NEW BILLS IN PARLIAMENT.

MISTAKES IN ACTS.

This bill has been brought in for the purpose of correcting mistaken references to his late Majesty in acts of this session of parliament. It recites that several acts were agreed upon by the lords spiritual and temporal, and the commons in this present parliament assembled, during the reign of his late Majesty King William the Fourth, of blessed memory, which had not received the Royal assent at the time of the demise of his late Majesty