Objections to the Country Fiats in Bankruptcy Bill. ditors and other parties connected with the account may be all now in their graves! 193 enactment to the creditors' assignee is still more obvious, when it is borne in mind that the official assignee will receive (though the creditors' assignee must not,) remuneration for his services, and that such remuneration is to consist of a poundage upon the amount of receipts from the estate, which will make it the interest of the official assignee to encourage attempts, no matter how speculative or expensive, to increase that estate. The itinerant commissioner is in like manner empowered to summon before him all persons whomsoever who can be shewn to have been at any period connected in any way with the estate, and this without any provision for, and in cases where the estate has been distributed, any means of paying the expenses of such witnesses, whether commissioners, assignees, solicitors, or creditors; and how properly soever the commission may prove to have been executed. And not only is the itinerant commissioner to have the power of committing to prison any person who may refuse to answer his questions touching the bankrupt's estate, (a power which no single commissioner of bankrupts has ever been allowed to exercise in the country,) but the bill proposes to invest the itinerant commissioner with a pow-pose by the Lord Chancellor. er of committing to prison for a period not exceeding a month, any person who shall "interrupt or obstruct him in the exercise of his duty:"-a monstrous power to be delegated to any such functionary, and one which the legislature wisely has hitherto never thought fit to confer on commissioners of bankrupt. The next important feature of the bill, is the appointment of a set of official assignees, who are to act as such under commissions or fiats, either alone or jointly with any creditors' assignee. Each itinerant commissioner is, at his discretion, to appoint one of such official assignees to any commission or fiat. On his appointment, the bankrupt's property of every description is to vest in such official assignee, and he alone is to have full power to sell and convert it into money, and to collect it at his discretion. The right to appoint an assignee is not taken away from the creditors, but it is obvious that, where there is an official assignee appointed by the itinerant commissioner, the power and authority of any assignee whom the creditors may appoint must be almost nominal. -The creditors are to be amused with the shadow of a power. The bill too proposes to perpetrate a piece of gross injustice to the assignee of the creditors; for after noticing that in all actions by or against assignees, the official assignee must sue and be sued jointly with the creditors' assignee, and is therefore responsible jointly with the latter for the costs, the bill enacts, in express terms, "that such official assignee shall not be liable to pay such costs, but that the assignee chosen by the creditors shall ALONE be hable to pay them." The injustice of this | Another objectionable feature of the bill is the proposed alteration in the taxing of solicitors' costs in bankruptcies in the country. Hitherto the costs incurred under each fiat have been taxed by the commissioners acting under that fiat; but it is proposed that the taxation of all costs under country fiats, shall be left to an officer of the court of bankrupcy, to be appointed for that purBut surely it is better-more just to all parties-that the taxation of the costs incurred under each fiat, should be left to the commissioners acting in that fiat, who, from first to last have had under their own eyes the matters in respect of which such costs are charged, than that it should be left to an officer of the court of bankruptcy, who learns the existence of such matters for the first time when the costs are submitted to him for taxation. The latter system not only presupposes the taxing officer to be possessed of all knowledge of all descriptions of practice, and of costs, in all the courts, but calls upon him to estimate, not fees merely, but a proper renumeration for skill exerted, labour bestowed, time expended, and results produced, none of which he can have witnessed, nor can so correctly, or adequately appreciate. It moreover deprives the present acting commissioners of a wholesome check upon the conduct of the solicitor. It substitutes for the present a less efficient mode of taxation, by removing it from those who have watched the progress of the business, and actually deprives the creditor of the ready appeal he at present possesses to a taxation in the office of a master in Chancery. Enough, it is presumed, has been said to shew that the proposed bill ought not to be allowed to pass into a law. Bankrupts' estates are now expeditiously and economically administered in the country. Mercantile men, who are sufficiently alive to their own interests, are not clamourous for or even desirous of any change. Neither House of Parliament is troubled with petitions on the subject; and not only is this 194 On the Bill for Abolishing Imprisonment for Debt.- Correspondence. new scheme uncalled for by the country, I but it seems to have no other object in view than to harass and annoy the assignees of old bankrupt estates; to add to the patronage of the Lord Chancellor, by the creation of new officers, (the payment of whose salaries will add to the burdens of the state,) and to furnish some more additional labour to the Court of Review. ON THE BILL FOR ABOLISHING To the Editor of the Legal Observer. debtor is about to abscond, he may be unable to prove it by the evidence of any one. Under the provisions of this bill, in case it the creditor's power over his debtor, who may should pass into a law, what will become of have a fixed income arising from a situation or an office, and who may live in furnished apartments? H. P. J. SELECTIONS FROM CORRESPONDENCE. OFFICE ATTENDANCE. The closing of the public offices precluding THIS bill having passed the House of Com- satisfaction of the country solicitors, induces the possibility of business being done to the mons, and depriving, as it does, the plaintiff of me to suggest some alteration which might his remedy over the person of his debtor (ex-be made in the attorneys' offices, as regards cept in certain fraudulent cases, and those within the 27th section,) and extending his power over the real and personal property, and otherwise altering the relative situations of creditor and debtor; its provisions ought to be well considered previous to passing the bill into a law. regulation to the following effect were adopted by the whole body of the profession, it would prevent the occurrence of the daily complaints. the attendance of their clerks. I have seen business of the greatest importance delayed till the following day, owing to the absence of the clerks, who are away a certain part of the day when their services are mostly required for the purpose of getting things ready for post, when in the evening they are seldom, if The seizure of money either on the person, ever, doing any thing by which their employ(as I take it) or in the house, is very objection-ers derive a benefit. I think that if some able, as there is no means of identifying it, and the debtor may be unable to prove the amount. The 2d and 4th sections, authorizing the sheriff to take all the debtor possesses, and give the same or a part thereof, to the creditor, and in case of any surplus, the creditor to pay it to the debtor, is also very objectionable, as authorizing more to be taken than what is due, and trusting to the creditor for a return of the surplus. If the sheriff is to seize all, he ought to be authorized only to pay what is due to the creditor, and return the defendant the surplus; the sheriff being under bond, there is a better security for the return of the surplus, than by the judgment creditor. Will not the third section embrace property sent to be repaired or altered? The 7th and 8th sections ought to give the judge a discretionary power, as to authorizing a judgment creditor to commence or prosecute actions for the recovery of debts due to his debtor, otherwise there may be a collusion between the creditor and the party owing the debt, to keep the debtor out of more money than he may owe to the creditor. And what effect will the 8th section have on the lien of the debtor's attorney, who may have commenced an action? "That they should compel their clerks' attendance the whole of the day, and allow them to leave earlier in the evening, which, when generally known, would be the means of the country clients receiving copies of proceedings, notices, and other informations the same day as received, which at times are of the greatest consequence. Should the agency ofces adopt this regulation, I think it would be found to work well. Sir, OFFICIAL INATTENTION. S. B. I attended to day at the Legacy Duty Office, for the purpose of paying duty for a client, and, after waiting a considerable time at the desk of one of the clerks, and witnessing him perform the important offices of inspecting the state and condition of his snuff-box, examining his watch, &c., he vouchsafed to look at me through the corner of his eye, and desired me to "hand up my paper;" which, after inspecting through his eye-glass, he desired me The power given by the 12th section to the to take to another person, to whom he directed Court of Review to appoint a special commis-ne by pointing his thumb over his shoulder. sioner where the debtor shall not reside in London, or within forty miles thereof, ought to be confined to the appointment of those persons who are commissioners under the Bankrupt Act, as being persons who may have more practical knowledge. The 23d section throws too much on the plaintiff to prove, as although he may of his own knowledge be able to swear that the Now, I care not much about the gentleman's airs, which may exactly meet the taste of those he is in the habit of associating with; but, alas, when I found my way to the desk he pointed out, no clerk was there, and, after wasting another valuable half-hour expecting his return, I was obliged to leave the office with my business unconcluded. Now, Mr. Editor, are these gentlemen to consider themselves the servants Superior Courts: Vice Chancellor; Rolls. Vice Chancellor's Court. SHIP.-ACCEPTANCE OF TITLE. In a bill for specific performance, charging acts of ownership as an acceptance of title, it appeared that the defendant took possession of the estate under an agreement distinct from the contract to purchase, and with a saving as to the title: Held, that the acts done to the estate did not amount to an ucceptance of the title without the usual inquiry. The plaintiff is the personal representative of the late Mr. John Farquher, of Fonthill Abbey, who died in 1826. The defendant is Mr. John Benett, of Wiltshire. The bill was filed for specific performance of an agree ment entered into by the latter with Mr. Farquher shortly before his death, for the purchase of an estate for 10,000. It appeared from the pleadings that after Mr. Farquher's death the defendant applied to the plaintiff, as his administrator, for possession of the estate, and which he obtained upon the terms that he would deposit the price in the hands of trustees until the title could be inquired into. If a good title could be made out, then the 10,000%. to be handed by the trustees to the plaintiff; if not, to the defendant. The bill charged that the defendant had exercised various acts of ownership over the estate, such as cutting down and selling timber on the estate, taking down houses and building others, acts which amounted to a waiver of all objection to the title; and the bill prayed for a reference to the master to inquire and report whether a good title was not made out of the estate, and whether the defendant had not exercised such acts of ownership as amounted to an acceptance of the title. Mr. Jacob argued that the acts done by the defendant altered the nature of the property, and such were held by this Court to be an acceptance of the title.' Mr. Knight, contrà.-The defendant did not take possession of the estate under the original contract to purchase, but a special agreement was entered into with the administrator of the vendor, until the inquiries incidental to the first contract were completed. Upon these inquiries depended the validity of that contract. Every act done by the defendant on the estate was for the improvement of the estate. That was not denied. If the estate was injured, the plaintiff had another 1emedy. The defendant did not object to, but concurred in, the first part of the prayer of the bill for the reference as to the title. 195 His Honour the Vice Chancellor was of opinion, that the agreement between the parties to the bill, and the acts done by the defendant in pursuance thereof, did not amount to an acceptance of the title, without the usual inquiry as to the validity of the title. By the terms of the agreement with the plaintiff, the estate was to be given up and the deposit taken back by the defendant, if a good title could not be made out. The taking possession of the estate in the meantime was the substance of the agreement, and the defendant while in possession might have found it necessary for the preservation of the estate to exercise acts of ownership incidental to his possession. Let it be referred to the master to inquire whether a good title can be made out. Fruzer v. Benett. Sittings at Lincoln's Inn, June 24, 1837. Rolls Court. BEQUEST TO SEPARATE USE. A bequest was given to trustees during the minority of a female, to be assigned to her absolutely for her separate use on attaining her age of twenty-one. She married and executed a settlement of the trust fund while still an infant: Held, that upon attaining her age of twenty-one, she took the bequest absolutely to her separate use, and the trustees were decreed to assign the same accordingly. age A testatrix bequeathed 8007. 5 per cent. bank annuities to persons named in her will, upon trust to accumulate the interest and dividends thereof during the minority of the plaintiff, then Miss Charlotte Yorke, and to transfer the said fund (with the accumulations thereof, to be vested in the purchase of stock,) to her absolutely on attaining her age of twenty-one, for her sole and separate use. The testatrix died in 1826. In 1831, Miss Yorke married Mr. Johnson; and some time of after, and while she was still under the twenty-one, she, with the consent of her husband, executed a settlement of the contingent legacy, by which the dividends of the stock were given to the husband or his assigns for his life; after his decease, to the wife and her assigns for her life; remainder to the children of the marriage, &c. Mrs. Johnson attained her age of twenty-one in 1834, and then, by her next friend, she filed a bill in Chancery for the purpose of securing a settlement of the bequest (then standing, with the accumulations thereof, in the names of the trustees, inthe 34 per cent. new bank annuities, exceeding altogether 11001.,) to her separate use, exclusive of her husband, and notwithstanding the settlement. The trustees and the hus band, and a child of the marriage, who under the settlement would take an interest in the fund, were inade defendants. The husband became bankrupt soon after the bill was filed. Mr. Pemberton and Mr. Chandless for Mrs. Johnson.-No question could be raised against the prayer of the bill on the settlement, for it 196 Superior Courts: Rolls; Equity Exchequer. was admitted that the plaintiff, being an infant when she executed that settlement, could not be bound by it; and again, as a married woman, she was under another disability. The only question was, whether the right of the husband prevailed over the terms of the bequest. It was true, that it was laid down in some recent cases, that a gift to the separate use of an unmarried woman-not in contemplation of marriage-was void as against any future husband, or the right of alienation by the woman herself. Burton v. Briscoea Woodmeston v. Walker; Stenton v. Hall; Brown v. Pocock;d Tyler v. Lake;e Massey v. Parker.f In this last case all the cases were cited and observed upon. The present case did not fall within any of them, and is not affected by the doctrine laid down in them. This legatee was an infant, not able to settle or otherwise dispose of the property by any act of her own, nor 'give it to the husband by the marriage. To the disability of infancy succeeded that of coverture, so that neither before nor after the vesting of the legacy had the plaintiff a power of disposing of it. If the Court should be of opinion that the case fell within the doctrine of the cases cited, still there were later cases, inconsistent with that doctrine, as Davies v. Thornycroft, and Stiffe v. Everett.h Mr. Teed, for the trustees of the fund bequeathed, and Mr. J. Russell, for the trustees of the settlement after the marriage, insisted, that on the authority of the cases no restraint against alienation could be annexed to a gift to an unmarried woman, but such gift would pass by every mode of conveyance. This was a bequest to the use of an unmarried woman, who afterwards married, and by the marriage the husband acquired all the wife's interest in the legacy. The donee of the gift being competent to enter into the contract of marriage the marital right carried her interest in the gift to her husband. Lord Langdale, M. R., postponed his judgment for the purpose of looking into the cases cited. His Lordship next day, said he had considered the case before him, and also the doctrine laid down in that of Massey v. Parker. The circumstances of the two cases were different, and he did not think that the present case fell within the doctrine laid down in Massey v. Parker. His Lordship stated the facts of that case and the principle of the decision. The interest of the woman in the legacy there given, was vested in her absolutely before marriage; but in this case, the woman was an infant at the time of her marriage, and her interest in the legacy was then contingent, and not being able to assign the legacy by any act of her own, she could not assign it by the act of marriage. When she attained the age of twenty-one years, upon which event the legacy became vested, she was then under another disability, being a married woman, in that very situation in which without breaking in on any of the cases cited, a gift to her separate use may be held valid; and if he were to hold the contrary, he should overrule the case of Simson v. Jones, which was a very strong case, and much in point. Johnson v. Johnson, at the Rolls, June 27th and 28th, 1837. and of the cases, see 10 Leg. Obs. pp. 122 and For short digests of the law on this subject, 273. Equity Exchequer. PRACTICE.-costs of investigating title. Held, that the purchaser of an estate sold at auction, by order of the Court, for the payment of the plaintiff's legacies, is entitled, on the title being found not marketable, to have all his costs of investigating it from the plaintiffs, who were to have them as costs in the cause, out of the fund in Court in the cause. In this cause, which was a suit by legatees for payment of legacies, charged on the testator's real estate, the estate was sold at auction, under a decree of the Court, and William Scott, being the best bidder, it was knocked down to him. The title to the estate, upon investigation, was found not to be marketable, and the purchaser was accordingly discharged, and his deposit returned; but his costs in respect to the investigation of the title were not paid. Mr. Koe applied for an order on the plaintiffs, who had the conduct of the suit, for all the costs and expenses incurred by Scott in investigating the title to the estate, and in respect to the purchase. The plaintiffs were bound to confirm the purchase, and as they could not do that, they were liable personally to the purchaser for his expenses, whether there was a fund in Court or not. Reynolds v. Blake,a Smith v. Nelson,Þ Mr. Simpkinson, for the plaintiffs, opposed the motion, so far as it sought to charge the plaintiffs personally with the costs. The estate was sold under a decree of the Court to satisfy the plaintiffs' legacies. It would be hard, if, instead of receiving payment of their legacies, they were to be saddled with expenses incurred in consequence of the decree of the Court. There was a fund in Court to the credit of the cause, out of which the party might have an order for his costs, if the Court should think he was entitled to them, and if they were to be held as legitimate costs in the cause. The costs in Reynolds v. Blake, were costs of a reference as to title only. The only case in which the Court gives a purchaser all his costs incurred in respect of the purchase, is where the biddings are opened, which the Court would not consent to, except upon Superior Courts: King's Bench Practice Court. terms of paying the purchaser all his costs properly incurred by him in respect to the purchase. Mr. Baron Alderson, after stating the facts of the case, said he was of opinion that the purchaser in this case ought to have all his costs, and that the plaintiffs ought to pay them to him. They may have them afterwards out of the fund in Court to the credit of the cause. Berrey v. Johnson.-Sittings at Gray's Inn Hall, June 22, 1837. King's Bench Practice Court. AWARD.-MIS-DESCRIPTION.—ENLARGEMENT The misdescription of the name of the umpire 197 affidavit of service of the copy of the award on John Smith was defective, as the award and umpirage was stated to have been made by Thomas Ward, instead of Thomas Wood. The affidavit, however, alleged the copy to be correct, and stated that the original, also correct, was shewn to Smith. Secondly, that the several enlargements were not shewn by affidavit to have been made. Thirdly, that before the submission to arbitration, Smith had disposed of the box No. 5, and therefore the arbitrator had no authority to make any order respecting it; and fourthly, that it was not shewn on affidavit that Reeves had paid the whole of the costs, the moiety of which was claimed from Smith by him. Davis v. Voss, 15 East 97; Wohlenburg v. Lageman, 6 Taunt. 251; and Halden v. Glasscock, 5 B. & C. 590, were cited. Wilson, contrà, cited Dickens v. Jarvis, 5 B. & C. 528. Cur, adv. vult. Littledale, J.-The first objection which has been made, I think is untenable; for there are cases in which the description of the name in the documents served, has differed in some slight degree from the real name of the party, as in Rex v. Calvert, 2 D. P. C. 276, and other decisions in that case pointed out. There, however, the process served was incorrect, and the defendant was consequently not held to be Wilson had obtained a rule, calling on John in contempt; but in this case the document Smith to shew cause why an attachment should which was served on Smith was right, for it is not issue against him for the non-performance not denied that it was a correct copy of the of the award made in this cause, pursuant to a award and umpirage. The defendant therereference made to two persons, by whom an fore, by his refusal to comply with its terms, umpire was to be selected. It appeared that the is in contempt. The only difficulty on this parties to the reference had been partners, and point is, the verification of the copy of the had carried on business at a place near the Lon-award; but as it is sworn to the Court that it don Docks, at a box No. 5. Disputes having is a copy, and is correct, and as it appears arisen, they mutually consented, by agreement, that Smith was shewn the original, which is dated 5th August, 1836, to refer them to ar- also correct, I think the name Thomas Ward bitration; and the order of reference was may be rejected as surplusage. With regard drawn up. Its terms were, that the award to the second point, it is true that there are should be made on or before the 5th Septem- several cases in which it has been laid down ber, but that the arbitrators, and the third per- that the fact of the enlargement must be shewn son whom they should appoint, should have the on affidavit; but in Dickens v. Jarvis, Bayley, power, by writing under their hands, to be in- J. says "I take it to be a matter of course, dorsed on the agreement, to enlarge the time that where a submission to arbitration conas often as they should think fit; and there tains a power to enlarge the time for making were also agreements that the umpire selected the award, and the enlargement of time is might make the award, and that the submission made a rule of Court, that it is sufficient for to arbitration should be made a rule of Court. the purpose of obtaining an attachment, just The arbitrators appointed one Thomas Wood as if the award had been made within the time to be the umpire, and after several enlarge- originally granted:" and in a subsequent part ments of the time had been made, he finally of the judgment he said, "Here the parties made his award and umpirage on the 9th agreed that an enlargement by the arbitrator April, 1837; and ordered Smith to pay to should be valid; and it must be presumed that Reeves the sum of 1057. 88. 10d., as well as a the Court would not make it a rule of Court moiety of 60l. 9s. 6d. for costs, and also to de- without a sufficient affidavit. If that were liver up to him possession of the box No. 5, in otherwise, every rule for an attachment for which they had carried on their business. It disobedience to a rule of Court, must be a rule was for non-compliance with these terms, that nisi." I concur in the opinion expressed by the present rule had been obtained. It was Mr. Justice Bayley. In the present case all shewn that the original submission, and the the various enlargements have been incorposeveral enlargements of time, and the appoint-rated in the rule of Court, and it must be supment of the umpire, had been made a rule of Court. C. Chadwick Jones now shewed cause, and made four objections.-The first was, that the posed that the Court proceeded upon proper grounds in making them so. As regards the third objection, that the box No. 5, was not specifically included in the submission, except |