Page images
PDF
EPUB

Professional Grievances.- Notices of New Books : Articled Clerks Manual.

433

vanced against the old mode of administering

NOTICES OF NEW BOOKS. the law in inatters of bankruptcy, was, the confusion as well as indecorum, constantly occurriug whilst sitting in relation to the af-A Manual for Articled Clerks und other Law fairs of a bankrupt's estate, it being frequently Students : containing Courses of Study for the case that six meetings, under different

Conveyancing, Equity, Bankruptcy, Common estates, engaged the attention of the commissioners at the same time, and ergo, that the

Law, Special Pleading, Criminal Law, 8c. business was most improperly transacted, not with the New Rules and Regulations for the withstanding there were sometimes three com Examination of Attorneys and Solicitors, and missioners sitting at once. Under the early

Notes, shewing their practical effect ; also the administration of the present Court, it was, I

Questions at the Examinations, with Refeunderstand, the practice to appoint only one meeling for one hour, and there was thus an

rences to works of authority in which Answers opportunity for the Judge to give his undivided may be found. Second Edition, revised, attention to the affairs of the particular estate

with great Additions. London : Published which were to be adjudicated upon by him. for the Proprietors of “ The Legal Obser.

This fit and proper, and positively necessary, as well as justly prescribed original plan, has

ver.” Richards & Co., 1837. been departed from for the convenience of the The second edition of the Articled Clerk's commissioners, it is presumed, notwithstanding | Manu the Court itself is yet in its infancy; whereas,

ng Manual is now published. The object and instead of relaxing in the manner decsribed,

csribed nature of the work will appear from the it seems to me that the main object that ought statement which we subjoin of its contents. to have been steadily kept in view, should Since the first edition, the Common Law have been the greater perfection of the system, Judges made Regulations for the guidance in order that there might have been evidence of the Examiners. These are included in to resort to in favonr of the altered adminis

the present edition. Some questions having tration of the laws in relation to bankruptcy.

| arisen on the construction of the Rules and The fact is not so, and this is deeply to be deplored ; and in my judgment, fairly open to

n|Regulations, and the mode of proceeding, well-merited censure.

the result will be found in the notes apIn a visit yesterday to the Court of Mr. Com- pended to the Rules. The Master of the missioner Williams, I found a multitude of Rolls having adopted the course pursued at persons assembled ; and I venture to assert Common Law, except in some particulars, that a great deal of business was being trans. the new Orders and Regulations applicable acted which this amiable and excellent and

to the Court of Chancery, with explanatory anxious Judge could not be acquainted with, though he is supposed to be acquainted with

notes, have also been added to the Volume. all that is transacted, and in verification of it! Besides the Questions in the several does subscribe his name to every sheet of pa- | branches of Law and Practice contained in per which is filed ; and yesterday, the auto-the first edition, the actual Questions put graph in this respect only, would have well at the several Examinations have been colnigh occupied him exclusively, such was the lected, and references given to the several confusion consequent on there being many works of authority in which answers may meetings at one hour, in lieu of a solitary meeting ; the whole business appertaining to

be found. which, would have been vigilantly inspected,

v inspected. The whole has been carefully revised, and of course properly done.

and it is anticipated that the work will This evil, for a great one it is, may have prove deserving of a renewal of the favourarisen from the absence of some of the Com- able reception bestowed by the profession missioners from town; but really, whilst every on the first edition. liberal-minded man would accord some, and a

1 The following are the Contents of the sufficient time for recreation, I doubt whether it should extend to ten weeks at one period : 1 Volume :and this I know to be the case during the 1. General Advice and Directions. Necespresent summer. The suitors must, I apprecessary Qualifications for entering the Profeshend, suffer, and yet they ought not, since the sion.-Causes of Failure.—Hours for Study. appointment should be filled, and the duties of General Disposition.-Miscellaneous Literait discharged, in a plenary manner.

ture. I regret to have trespassed at such length on 2. On the General Course of Study. -Eleyour columns; but those columns, during the mentary Course of Study.—How Books should vacation, may well be appropriated to the be read. correction of everything which requires annend 3. A Course of Study on Conveyancing: ment in the practice of the profession; and Necessity of a Knowledge of Conveyancing: especially when the recipients of it will be the Its peculiar Importance to Attorneys and So. profession and the public.

licitors.--Liabilities for Negligence or Igno. rance in Matters relating to Conveyancing: | How its Principles are to be acquired. The

ΤΙΤΙΑ.

434

Notices of New Books : Articled Clerks' Manual.-Suggested Improvements.

LONG COURSE OF STUDY.-Books to be read., ality, &c.—Letter-Writing.-Business Lists. - THE Short Course.-Books to be read. - Daily Arrangements.-Entries of Business.Questions on Conveyancing and the Laws of Preserving Papers.--Accounts. Property, with References to the Books for 13. On the Urility of attending Law LecAnsicers.-Questions on Conveyancing pui at lures, and keeping a Common-Place or Notethe Examinations which have taken place, with Book. Greater impression of Oral Lectures. References to the Books for Answers

- Time occupied in Attendance.—Taking List 4. A Course of Study for Equity, with an of Decisions. Note the leading Doctrines.Introductory Sketch of its Nature and Objects. Read Authorities.-Common Place Book: Ex-The Meaning of the term Equity.--Its Ori-tracts.—Abridgment.-References. gin.-The Principles which guide Courts of 14. The New Rules and Regulations for Equity.-Books to study.—THE LONG COURSE. Examination of Allorneys, with Notes, shewing -The Short COURSE.—How the Reports the Course to be adopted. The Rules of Hilary should be read.-What Matters are entertained Term, 1836.--Regulations approved by the and relieved in Equity.-- Accident.--Mistake. Judges in Easter Term, 1836, for the Exami

-Account.-Fraud. The Specific Perfor. nation of Persons applying to be admitted as mance of Agreements.- Trusts.-Infancy.- Attorneys of the Courts of King's Bench, Questions on Equily, with References to the Common Pieas, or Exchequer, pursuant to Books for Answers.Questions on Equity put the Rule of Court made in Hilary Term, 1836. at the Examinations which have taken place, -Questions as to due Service to be answered with References to the Books for Answers. by the Clerk.--Questions as to due Service, to

5. A Course of Study for Bankruptcy and be answered by the Attorney.--Notes on the Lunacy.- Questions on Bankruptcy, put at the Common Law Rules and Regulations.—Course Examinations which have taken place, with Re- to be adopted for Examination ;-as to answerferences to the Books for Answers.

ing Questions of due Service :—for Admission. 6. On rarious other Studies ond Pursuits con- -Days for serving Notices.- Mode of Pronected with the Law - English History.- ceeding at the Examination.-Fees on ExamiBooks to be read.—The Civil Law: how much nation and Admission. is necessary.-Laws of other Countries.-Latin 15. New Orders ond Regulations in Chan. and French. -Short-hand.—Copying Prece-cery for the Examination of Solicitors, with dents.-Attendance in Court.-Debating So-Notes, explaining the Course to be adopted. cieties.-Chambers of Counsel.

The Orders of the Master of the Rolls of 27th 7. On the Formation of a Law Library. July, 1836.-Regulations for Examination of

8. A preliminary Skeich on the Examination Solicitors, approved by the Master of the Rolls into the Fiiness and Capacity of Attorneys.- on the 28th of July, 1836.—Questions as Statutes of 1403, 1445, 1606.-Rules of Court to due Service, to be answered by the Clerk. of 1617, 1633, 1654.–Statutes of 1729, 1822-3. -Questions as to due Service, to be answered -New Rules, 1836.

by the Solicitor.---- Notes on the Orders in 9. A Course for the Sludy of Common Law. Chancery.-As to Examination.--As to Ad-Active Practice.-Intervals for occasional mission-and Fees. Reading, how to be employed.-Books recom- Appendir of Forms under the New Rules.mended.-Method and System.--Elementary Notice of Examination.--Notices of admission. Books.-Business of Law Offices.—The prin--Affidavit of affixing, entering and delivering cipal Steps in an Action at Law.—Practical notices. Directions. — Examination of Witnesses. — Preparing Briefs.—Trials.- Questions in Pruclice.—THE LONG COURSE. - Common Law Treatises.—The Short COURSE.--Books to

SUGGESTED IMPROVEMENTS IN be read. --Questions on Common Law, with Re

THE LAW. ferences to the Books for Ansurers.- Questions on Common Law, put at the Examinations

LIABILITY OF EXECUTORS. which have taken place, with References to the Books for Ansicers.

To the Editor of the Legal Observer. 10. A Course of Study in Special Pleading, Sir, with an Outline of its Nature.-Definition of My attention has been lately drawn to the Pleadings. Their several kinds.-The Decla- state of the law as regards the liability of ration. - Joinder of Parties.- Joinder of executors who have distributed assets without Canses of Action.— Pleas. - Demurrers. - notice of the existence of clairns upon the Questions on Special Pleuding, with References estates of their testators. As the subject is to the Books for Answers.

an important one, 1 beg leave to lay it before 11. A Course of Study in Criminal Law.- your readers. Utility of the Study.-References to suitable In the case of The Governor and Company of Works. -Questions on Criminul Law which the Chelsea Waterworks v. Couper, Lord Kes. have been put at the Examinations.

yon, sitting at nisi prius, expressed it to be his 12. Advice lo Articled Clerks on the Course of opinion that where an executor has paid his Business in un Attorney's Office.-Duty of testator's debts and legacies, and paid over Attorneys to instruct their Articled Clerks, the remainder of his estate to the residuary Time for reading.–Office Drudgery.- Details legatee, and has had no notice of any other of Business.- Professional Habits.-Punctu-existing demand, provided he has not done it

Suggested Improvements in the Law.

435

100 precipitately, it was a good answer to an present widow, a legacy of 5000.., to which action on a bond. See Espin. N. P. 275. In Lady Knatchbull claimed to be entitled under this case, however, it appears that thirty years the will of her father, Mr. Hawkins, was ashad elapsed between the distribution of the signed to two trustees (Sayer and Bradshaw) assets and the claim made against the execu- upon trust to pay the interest to Sir Edward tors; but Lord Kenyon, whose authority even during his life, and after his decease, on trusts at nisi prius must be entitled to considerable for the benefit of the children of the marriage. weight, does not appear to have relied on that The settlement contained a power to invest the ground.

fund in the purchase of real estate, or of leaseThe case of Davis v, Blackwell, 9 Bing. 5, holds having fifty years to run; and also a is the next reported case that occurred upon power for the said Sir Edward and Lady the point. The facts were these :-The testa- Knatchbull, with the consent of her inother, if tor died in March 1829, his will was proved in living, to direct any sum not exceeding 20001. May 1830, and the executor, after discharging to be raised out of the fund, and paid as Sir some debts, paid over the residue of the assets Edward should think proper. to the residuary legatees, within six months Mr. Bradshaw, the co-trustee of Sayer, was after the date of the probate. The plaintiff, one of the trustees and executors of Hawkins's within two years after the date of the probate, will. In November 1801, the 50001. was paid brought an action for a breach of covenant in to Bradshaw, by transferring a sum of that a lease for the repairs of a house demised to amount from the account of the executors of the testator, which lease expired in December | Hawkins, with Messrs. Wright & Co., to an 1831. It appeared upon the trial, that no account then opened in the name of Bradshaw potice had been given to the executor of the alone, and on the 28th of that month and the state of the house in question, which had never 8th of December following, two sums, anjountbeen occupied by the testator; but a verdicting to 33871. 48., were paid by Bradshaw, who was found for the plaintiff.

was the acting trustee, to Sir Edward KnatchThe counsel for the defendant, on obtaining bull, who, on the 9th of December, wrote to a rule nisi for a new trial, cited the case of inform Mr. Sayer, the other trustee, that The Governor und Company of Chelsea Water-15301., part of the money, had been invested works v. Couper. On cause being shewn, the in the purchase of a freehold estate, and question was fully argued. The Chief Justice 18371. 48., further part, in the purchase of Tindal is reported to have stated that he was some leasehold tithes held for a term of not prepared to say, that, after such a length twenty-one years. The balance of the money of time had elapsed as in the case of The Chelsea was invested in the consols, in the names of Wateruorks Company v. Couper, the laches of the two trustees, in the January following, the creditor might not be deemed a waiver of and the stock thus purchased was sold out in his right against the executor; but that it did 1804, and the produce paid to Sir Edward. not appear to him that six months was a rea- Mr. Sayer died in 1814, Sir Edward Knatchsonable time for ascertaining the existence of bull in 1819, leaving a numerous fainily by his debts; and the other Judges concurring in third wife, and Mr. Bradshaw in 1823. Bradopinion that the executor had been 100 pre- shaw's executrix died sometime afterwards, cipitale in paying the residue to the residuary leaving the defendants, Fearnhead and another, legatee, the rule was discharged.

her executors. In Norman v. Baldry, 6 Sim. 621, the same Mr. Sayer's executors distributed his assets question came before the present Vice Chun- among his family and residuary legatees, withcellor. In that case the claim arose under a out the slightest knowledge of the above transpost obit bond, in which the testator had joined actions, or even being aware that he had been as surety. The testator died in March 1820. a trustee of the settlement. The event on which the bond became payable In 1830 Mrs. Sayer's executors were, for occurred in April 1831; the executors, how- the first time, applied to for information resever, had distributed the whole of the assets, pecting the trust fund, and his family after a never having heard of the bond until October diligent search among his papers, found the 1831. The case of The Chelsea Waterworks letter of the 9th of December 1801, above reCompany v. Corrper was quoted on the part of | ferred to. the defendants, the executors; but the Vice In 1833, the bill was filed by some of the Chancellor held that an executor was liable if children of the marriage, and the husbands of he paid legacies, notwithstanding he had no two of the married daughters, against the notice of a bond ; and he added, that he was representatives of Sayer and Bradshaw, but not disposed to agree to what was attributed without making the persons beneficially into Lord Kenyon in the case cited.

terested in their respective estates parties to The doctrine thus laid down by the Vice the suit. Bradshaw's representatives could Chancellor is supported by the decisions of give no information either from his papers or Lord Langdale and Lord Cottenham in the, as otherwise, respecting the transactions. Unyet unreported, case of Knatchbull v. Feurn- fortunately for Mr. Sayer's executors, they head, which each of those learned Judges could not discover any title deeds, conveyance, admitted was one of peculiar hardship. The or assignment, relating to the freehold and facts were shortly these :-By the settlement leasehold property, in which part of the funds inade in 1801, on the marriage of the late Sir were stated by Sir Edward Knatchbull to have Edward Khatchbull with his third wife and been invested; neither could they discover

[ocr errors]

436

Suggested Improvements in the Law.- Superior Courts: Vice Chancellor.

whether the power contained in the settleinent the profession at large, but more especially to raise the 20001. had ever been exercised. upon the solicitors, who will be supposed to It appeared, however, from the answers to a be actuated by interested motives.. ! cross bill filed by Sayer's executors, against The House of Lords would not, it is feared, Sir Edward Knatchbull's representatives and reverse either of the above decisions, even if others, that the freehold estate and leasehold they were appealed from; but presuming that tithes were vested in him, and.that the former, it were to do so, it is obvious that no general which he had devised to his widow for the rule could b.: laid down, at least for some benefit of herself and her family, had been years, as to what would be considered a presold to the trustees of the present Sir Edward's cipitate distribution of assets. Hence it is settled estates, and the money invested in clear that nothing short of a legislative enacttrust for Lady Knatchbull and her children. ment can effectually reinedy the evil conseIt also appeared by the pleadings, in the cross quences which are likely to result from the suit, that the late Sir Edward bad renewed the doctrine which is established by the cases Jease of his tithes, and that the lease existing referred to. at his death, was taken as part of his assets. The advertising for creditors under the pro.

Lord Langdale, on the cause coming on forceedings in suits for adıninistering assets, is further directions, thoughi the letter of the considered sufficient for the protection of ex9th of December 1801, was sufficient to fix ecutors against the clairns of creditors who Mr. Sayer's executors, and made a decree have neglected to make their claims. It would against them personally for the payment of therefore, I conceive, be neither unjust nor the whole fund with interest into Court. inconsistent with the doctrines of equity, if

In pursuance of this decree, Mr. Sayer's executors and administrators were to be prosurviving executor paid into Court 90001. and tected in a similar manner, by advertising in upwards. Lord Collenhain, however, on an the Gazette and other papers for creditors to appeal, which was heard at the close of the last make their claims within some given time. A sittings, thought that as the 33871. 48. was paid short act prescribing the nature of the adrer. over to Sir Edward Knatchbull, previously to tisements and the periods when they should the 9th of December 1801, Mr. Sayer's exe- be inserted, and declaring that executors and cutors ought not to be fixed without making administrators who have complied with its refurther inquiries, which he directed; but he quisitions shall be released from all future te. held that they were personally responsible for sponsibility, might be easily framed, and the produce of the stock, and he varied the would, I doubt not, meet with the support of decree accordingly.

the Lord Chancellor and the Master of the It was urged both at the Rolls and before | Rolls.

LANCE. the Lord Chancellor, that Mr. Sayer's executors ought not, under the circumstances, to be fixed; that the parties were not in a worse situation than they would have been if his

SUPERIOR COURTS. estate had been distributed under the decree of the Court; and if the executors were made personally responsible, no executor could with

Vice Chancellor's Court. safety distribute his testator's estate without the

INJUNCTION.—EX PARTE APPLICATIONS. sanction of the Court, and the case of The Chelsea Waterworks v. Couper, and Davis

The Court requires a full statement of facts v. Blackwell, were quoted. It was also urged

in applications ex parte for injunctions, upon the respective Courts, that the power to

and will hold a concealment of a material raise the 20001. ought to presumed to have

fact, a sufficient ground to dissolve the in

junction. been duly exercised.

We have therefore, not only the Vice Chan- Mr. Jacob and Mr. Wood moved to dissolve cellor, but also the Master of ihe Rolls and the an injunction granted on the 26th of Xay last on Lord Chancellor, holding, in opposition to the an ex parte application, lo restrain the Bristol dictum of Lord Kenyon, that executors who and Exeter Railway Company from proceeding huve distributed assets, whether precipitutely or with a line of railway, deviating as it was alnot, in the total ignorance of latent claims, are leged, from the original line, for which the personally liable to make good such claim. company obtained their act. The plaintiff was

While this remains the law of the land, it is the owner of a piece of land in the parish of obvious that no executor is ever safe, unless Uphill, a few iniles from Bristol ; through he distribute his testator's estate under the which it was originally intended to carry the decree of the Court. When that has been railway, and during the progress of the bill done, the party is compelled as in March v. through parliament, the company entered into Russell, reported in the Legal Observer of the an agreement with the plaintiff, that bis land 2d September 1897, to follow the assets in the should not be infringed upon, but that if they hands of the legaters. The consequence will found it necessary to cut through it, they be, that executors will be advised in the ina- would pay him a compensation of 50004. in jority of cases, to place the affairs of their tes consideration of his withdrawing his opposition tator under the direction of the Court, to the to the bill. The company under the ordinary annoyance and vexation of the parties inter clause inserted in all bills of this description, ested, the odium of which will be thrown upon which empowered a deviation on each side of

Superior Courts : Vice Chancellor; King's Bench Practice Court.

437

the original line to the extent of one hundred was done, in a slightly varied shape, to his yards, bad carried the railway round the cor- property. The true construction of the act ner of the plaintiff's paddock, by a deviation was given in the computation made by the of ninety-nine yards, and thereby avoided the plaintiff in his affidavit. necessity of cutting throngh his land. The His Honor The Vice Chancellor said lie plaintiff thereupon filed his bill, and obtained should certainly dissolve the injunction, and an injunction on an ex parte inotion, support with costs, upon une point. He thought it of ed by an affidavit that the deviation was con the very first importance that when ex parte siderably more than the act empowered the applications were made to the Court for incompany to, make, and that the deviation was junctions of a special nature, and when the not discovered till the 11th of May. The in- Court had no opportunity of knowing the case junction would never have been granted, but made on the other side, all the facts, which of for a gross misrepresentation, and suppression necessity belonged to it, should be stated with of several material facts from the knowledge the greatest accuracy. Though he did not of the Court. The chief question for the think there had been a wilful intention to supCourt arose on the construction of the devia- press a material fact, and though he did not tion clause. The evidence of the surveyor and impute wilful mis-representation to the person engineer of the company, as well as of several who made the affidavit, still he was of opinion persons engaged in proinoting the bill, stated the Court ought to have been informed, when it to be universally understood that the devia- the ex parte application was made, of that fact, tion of one hundred yards, was intended to be which appeared by the plaintiff's letter of the measured from the centre of the original line 19th of April. Without giving any opinion to the centre of the line of deviation. But the upon the variety of points raised in the course computation made by the plaintiff was from of the discussion, he thought the contradiction the extreme edges of the lines, and that was a manifested upon the letter and affidavit conmis-interpretation of the act, and that alone clusive of the question that the injunction had would form a ground for dissolving the injunc. been improperly obtained, and therefore, whetion. The breadth allowed for the railway ther the company had acted right or wrong, was twenty-two yards, and an extent of ten he should dissolve it with costs. yards was permitted on each side for the erec- Payne v. The Bristol and Exeter Railway tion of machinery for cuttings, or where it Company.-Sittings at Lincoln's Inn, August was necessary, for carriages to pass; and even | 3d, 1837. if the plaintiff's construction was correct, though it excluded the space taken up by the railway, the deviation thus permitted would

King's Bench Practice Court. actually fall within the limits. The plaintiff's

JUSTIFICATION OF BAIL.-INSOLVENT defendelay in making the application to the Court

DANT. after an admission of his knowledge of the intention of the company, formed another fatal

The Court will not suffer bail to be justified objection to the injunction. The plaintiff

in respect of a debt for which the defenswore in his affidavit, that he first discovered

dant has taken the benefit of the Insolvent the intention to deviate from the line on the

Act, and has been remanded. Ilth of May, but in a letter to one of the Bail was opposed in this case by Douling, agents, dated the 19th of April, he expres on the ground that the defendant had taken Jy complained of another line being staked the benefit of the Insolvent Act, 7 G. 4, c. 57, and marked out. It would be also for in respect of the debt for which he now sought the Court to consider how far it would extend to put in bail. It was sworn that the detenequitable relief to a party who sought to com- dant at this time was in prison under the order pel a defendant to commit an injury in order of the Court, baving been remanded in respect to obtain the amount of compensation coutin- of this and other debts, for twelve months, at gently stipulated on the completion of the the instance of the present plaintiff and other damage.

creditors. Mr. knight, in opposition to the motion, C.C. Jones, contrà, urged that this was no contended that the question of construction to objection to the justification, as the defendant be put on the act of parliament, was one of might be disposed to deny the propriety and such magnitude and importance to those whose justice of the debts in respect of which he was properties were subject to the desolating con- confined. The claim arose out of his having sequences of railroads, that it ought to be been guarantee for the debt of another, and solemnly decided by a court of law before this when he sought the benefit of the Insolvent Court proceeded to deal with it. The plaintiff, Act, although he might have had a good deconfiding in the honor of the company, had not fence, he might have thought it right to introthought it necessary to obtain protection for duce the debt into his schedule. He might his adjoining property, and now, by a quibble, besides avail himself of the Statute of Frauds. the company sought to take advantage of his Coleridge, J.-To what purpose could bail confidence and credulity. The letter of the be justified, after the defendant has confessed agreement had been kept, but the spirit of it the debt before the Insolvent Court, and has · was broken. The company had silenced the sought to take the benefit of the act?

opposition of the plaintiit, and now sought to C. C, Jones then urged, that as there was no „. avoid compensating him for the injury which affidavit by which the identity of the two debts

« PreviousContinue »