Professional Grievances.-Notices of New Books: Articled Clerks Manual. 433 vanced against the old mode of administering the law in matters of bankruptcy, was, the confusion as well as indecorum, constantly occurring whilst sitting in relation to the affairs of a bankrupt's estate, it being frequently the case that six meetings, under different estates, engaged the attention of the commissioners at the same time, and ergo, that the business was most improperly transacted, notwithstanding there were sometimes three commissioners sitting at once. Under the early administration of the present Court, it was, I understand, the practice to appoint only one meeting for one hour, and there was thus an opportunity for the Judge to give his undivided attention to the affairs of the particular estate which were to be adjudicated upon by him. This fit and proper, and positively necessary, as well as justly prescribed original plan, has been departed from for the convenience of the commissioners, it is presumed, notwithstanding the Court itself is yet in its infancy; whereas, instead of relaxing in the manner decsribed, it seems to me that the main object that ought to have been steadily kept in view, should have been the greater perfection of the system, in order that there might have been evidence to resort to in favonr of the altered administration of the laws in relation to bankruptcy. The fact is not so, and this is deeply to be deplored; and in my judgment, fairly open to well-merited censure. NOTICES OF NEW BOOKS. A Manual for Articled Clerks und other Law with great Additions. London: Published THE second edition of the Articled Clerk's Manual is now published. The object and nature of the work will appear from the statement which we subjoin of its contents. Since the first edition, the Common Law Judges made Regulations for the guidance of the Examiners. These are included in the present edition. Some questions having arisen on the construction of the Rules and Regulations, and the mode of proceeding, the result will be found in the notes ap Rolls having adopted the course pursued at Common Law, except in some particulars, the new Orders and Regulations applicable to the Court of Chancery, with explanatory notes, have also been added to the Volume. In a visit yesterday to the Court of Mr. Com-pended to the Rules. The Master of the missioner Williams, I found a multitude of persons assembled; and I venture to assert that a great deal of business was being trans acted which this amiable and excellent and anxious Judge could not be acquainted with, though he is supposed to be acquainted with all that is transacted, and in verification of it does subscribe his name to every sheet of paper which is filed; and yesterday, the autograph in this respect only, would have well high occupied him exclusively, such was the confusion consequent on there being many meetings at one hour, in lieu of a solitary meeting; the whole business appertaining to which, would have been vigilantly inspected, and of course properly done. Besides the Questions in the several branches of Law and Practice contained in the first edition, the actual Questions put at the several Examinations have been collected, and references given to the several works of authority in which answers may be found. The whole has been carefully revised, 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 sufficient time for recreation, I doubt whether it should extend to ten weeks at one period; and this I know to be the case during the present summer. The suitors must, I apprehend, suffer, and yet they ought not, since the appointment should be filled, and the duties of it discharged, in a plenary manner. I regret to have trespassed at such length on your columns ; but those columns, during the vacation, may well be appropriated to the correction of every thing which requires amend ment in the practice of the profession; and especially when the recipients of it will be the profession and the public. JUSTITIA. The following are the Contents of the Volume : 1. General Advice and Directions.-Necescessary Qualifications for entering the Profession.-Causes of Failure.-Hours for Study.General Disposition.- Miscellaneous Litera ture. 2. On the General Course of Study.-Elementary Course of Study.-How Books should be read. 3. A Course of Study on Conveyancing.Necessity of a Knowledge of Conveyancing.Its peculiar Importance to Attorneys and Solicitors.-Liabilities for Negligence or Ignorance in Matters relating to ConveyancingHow its Principles are to be acquired.-THE 434 Notices of New Books: Articled Clerks' Manual.-Suggested Improvements. LONG COURSE OF STUDY.-Books to be read. |ality, &c.-Letter-Writing.-Business Lists. Daily Arrangements.-Entries of Business.— Preserving Papers.-Accounts. 13. On the Utility of attending Law Lectures, and keeping a Common-Place or NoteBook.-Greater impression of Oral Lectures. -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 Attorneys, 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 Equity, 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. 5. A Course of Study for Bankruptcy and Lunacy Questions on Bankruptcy, put at the Examinations which have taken place, with References to the Books for Answers. by the Clerk.-Questions as to due Service, to be answered by the Attorney.-Notes on the Common Law Rules and Regulations.—Course to be adopted for Examination ;-as to answering Questions of due Service ;-for Admission. 6. On various other Studies ond Pursuits con--Days for serving Notices.-Mode of Pronected with the Law -English History.- ceeding at the Examination.-Fees on Exami Books to be read.-The Civil Law: how much nation and Admission. is necessary.-Laws of other Countries.-Latin 15. New Orders ond Regulations in Chanand 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. 7. On the Formation of a Law Library. 8. A preliminary Sketch on the Examination into the Fitness and Capacity of Attorneys.Statutes of 1403, 1445, 1606.-Rules of Court of 1617, 1633, 1654.-Statutes of 1729, 1822-3. -New Rules, 1836. The Orders of the Master of the Rolls of 27th July, 1836.-Regulations for Examination of Solicitors, approved by the Master of the Rolls on the 28th of July, 1836.-Questions as to due Service, to be answered by the Clerk. —Questions as to due Service, to be answered by the Solicitor.-Notes on the Orders in Chancery.-As to Examination.-As to Admission-and Fees. 9. A Course for the Study of Common Law. -Active Practice.-Intervals for occasional Reading, how to be employed.-Books recom- Appendix 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 Pructice-THE LONG COURSE.- Common Law Treatises.-THE SHORT COURSE.--Books to be read.-Questions on Common Law, with Re ferences to the Books for Answers.—Questions on Common Law, put at the Examinations which have taken place, with References to the Books for Answers. 10. A Course of Study in Special Pleading, with an Outline of its Nature.-Definition of Pleadings. Their several kinds.-The Declaration. Joinder of Parties.- Joinder of Causes of Action. - Pleas. - Demurrers. Questions on Special Pleuding, with References to the Books for Answers. 11. A Course of Study in Criminal Law. Utility of the Study.-References to suitable Works.-Questions on Criminal Law which have been put at the Examinations. SUGGESTED IMPROVEMENTS IN THE LAW. LIABILITY OF EXECUTORS. To the Editor of the Legal Observer. My attention has been lately drawn to the In the case of The Governor and Company of the Chelsea Waterworks v. Cowper, Lord Kenyon, sitting at nisi prius, expressed it to be his 12. Advice to 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. too precipitately, it was a good answer to an action on a bond. See Espin. N. P. 275. In this case, however, it appears that thirty years had elapsed between the distribution of the assets and the claim made against the executors; but Lord Kenyon, whose authority even at nisi prius must be entitled to considerable weight, does not appear to have relied on that ground. The case of Davis v. Blackwell, 9 Bing. 5, is the next reported case that occurred upon the point. The facts were these:-The testator died in March 1829, his will was proved in May 1830, and the executor, after discharging some debts, paid over the residue of the assets to the residuary legatees, within six months after the date of the probate. The plaintiff, within two years after the date of the probate, brought an action for a breach of covenant in a lease for the repairs of a house demised to the testator, which lease expired in December 1831. It appeared upon the trial, that no notice had been given to the executor of the state of the house in question, which had never been occupied by the testator; but a verdict was found for the plaintiff. | 435 present widow, a legacy of 5000!., to which Lady Knatchbull claimed to be entitled under the will of her father, Mr. Hawkins, was assigned to two trustees (Sayer and Bradshaw) upon trust to pay the interest to Sir Edward during his life; and after his decease, on trusts for the benefit of the children of the marriage. The settlement contained a power to invest the fund in the purchase of real estate, or of leaseholds having fifty years to run; and also a power for the said Sir Edward and Lady Knatchbull, with the consent of her mother, if living, to direct any sum not exceeding 20007. to be raised out of the fund, and paid as Sir Edward should think proper. Mr. Bradshaw, the co-trustee of Sayer, was one of the trustees and executors of Hawkins's will. In November 1801, the 50007, was paid to Bradshaw, by transferring a sum of that amount from the account of the executors of Hawkins, with Messrs. Wright & Co., to an account then opened in the name of Bradshaw alone, and on the 28th of that month and the 8th of December following, two sums, amounting to 3387!. 4s., were paid by Bradshaw, who 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. Cowper. On cause being shewn, the question was fully argued. The Chief Justice Tindal is reported to have stated that he was not prepared to say, that, after such a length of time had elapsed as in the case of The Chelsea Waterworks Company v. Couper, the laches of the creditor might not be deemed a waiver of his right against the executor; but that it did 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 family by his debts; and the other Judges concurring in third wife, and Mr. Bradshaw in 1823. Bradopinion that the executor had been too pre-shaw's executrix died sometime afterwards, cipitate 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 question came before the present Vice Chuncellor. In that case the claim arose under a post obit bond, in which the testator had joined as surety. The testator died in March 1820. The event on which the bond became payable occurred in April 1831: the executors, however, had distributed the whole of the assets, never having heard of the bond until October 1831. The case of The Chelsea Waterworks | Company v. Corper was quoted on the part of the defendants, the executors; but the Vice Chancellor held that an executor was liable if he paid legacies, notwithstanding he had no notice of a bond; and he added, that he was not disposed to agree to what was attributed to Lord Kenyon in the case cited. The doctrine thus laid down by the Vice Chancellor is supported by the decisions of Lord Langdale and Lord Cottenham in the, as yet unreported, case of Knatchbull v. Fearnhead, which each of those learned Judges admitted was one of peculiar hardship. The facts were shortly these:-By the settlement made in 1801, on the marriage of the late Sir Edward Khatchbull with his third wife and in the purchase of a freehold estate, and 1837. 4s., further part, in the purchase of some leasehold tithes held for a term of twenty-one years. The balance of the money was invested in the consols, in the names of the two trustees, in the January following, and the stock thus purchased was sold out in 1804, and the produce paid to Sir Edward. Mr. Sayer's executors distributed his assets among his family and residuary legatees, without the slightest knowledge of the above transactions, or even being aware that he had been a trustee of the settlement. In 1830 Mrs. Sayer's executors were, for the first time, applied to for information respecting the trust fund, and his family after a diligent search among his papers, found the letter of the 9th of December 1801, above referred to. In 1833, the bill was filed by some of the children of the marriage, and the husbands of two of the married daughters, against the representatives of Sayer and Bradshaw, but without making the persons beneficially interested in their respective estates parties to the suit. Bradshaw's representatives could give no information either from his papers or otherwise, respecting the transactions. Unfortunately for Mr. Sayer's executors, they could not discover any title deeds, conveyance, or assignment, relating to the freehold and leasehold property, in which part of the funds were stated by Sir Edward Knatchbull to have been invested; neither could they discover 436 Suggested Improvements in the Law.- Superior Courts: Vice Chancellor. whether the power contained in the settlement to raise the 2000. had ever been exercised. It appeared, however, from the answers to a cross bill filed by Sayer's executors, against Sir Edward Knatchbull's representatives and others, that the freehold estate and leasehold tithes were vested in him, and.that the former, which he had devised to his widow for the benefit of herself and her family, had been sold to the trustees of the present Sir Edward's settled estates, and the money invested in trust for Lady Knatchbull and her children. It also appeared by the pleadings, in the cross suit, that the late Sir Edward had renewed the lease of his tithes, and that the lease existing at his death, was taken as part of his assets. the profession at large, but more especially upon the solicitors, who will be supposed to be actuated by interested motives. The House of Lords would not, it is feared, reverse either of the above decisions, even if they were appealed from; but presuming that it were to do so, it is obvious that no general rule could be laid down, at least for some years, as to what would be considered a precipitate distribution of assets. Hence it is clear that nothing short of a legislative enactment can effectually remedy the evil consequences which are likely to result from the doctrine which is established by the cases referred to. The advertising for creditors under the proceedings in suits for administering assets, is considered sufficient for the protection of ex Lord Langdale, on the cause coming on for further directions, thought the letter of the 9th of December 1801, was sufficient to fixecutors against the claims of creditors who Mr. Sayer's executors, and made a decree against them personally for the payment of the whole fund with interest into Court. In pursuance of this decree, Mr. Sayer's surviving executor paid into Court 9000/. and upwards. Lord Cottenham, however, on an appeal, which was heard at the close of the last sittings, thought that as the 33871. 4s. was paid over to Sir Edward Knatchbull, previously to the 9th of December 1801, Mr. Sayer's executors ought not to be fixed without making further inquiries, which he directed; but he held that they were personally responsible for the produce of the stock, and he varied the decree accordingly. It was urged both at the Rolls and before 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 estate had been distributed under the decree of the Court; and if the executors were made personally responsible, no executor could with safety distribute his testator's estate without the sanction of the Court, and the case of The Chelsea Waterworks v. Cowper, and Davis v. Blackwell, were quoted. It was also urged upon the respective Courts, that the power to raise the 2000. ought to presumed to have been duly exercised. We have therefore, not only the Vice Chancellor, but also the Master of the Rolls and the Lord Chancellor, holding, in opposition to the dictum of Lord Kenyon, that executors who have distributed assets, whether precipitately or not, in the total ignorance of latent claims, are personally liable to make good such claim. While this remains the law of the land, it is obvious that no executor is ever safe, unless he distribute his testator's estate under the decree of the Court. When that has been done, the party is compelled as in March v. Russell, reported in the Legal Observer of the 2d September 1837, to follow the assets in the hands of the legaters. The consequence will be, that executors will be advised in the majority of cases, to place the affairs of their testator under the direction of the Court, to the annoyance and vexation of the parties interested, the odium of which will be thrown upon have neglected to make their claims. It would therefore, I conceive, be neither unjust nor inconsistent with the doctrines of equity, if executors and administrators were to be protected in a similar manner, by advertising in the Gazette and other papers for creditors to make their claims within some given time. A short act prescribing the nature of the advertisements and the periods when they should be inserted, and declaring that executors and administrators who have complied with its requisitions shall be released from all future rèsponsibility, might be easily framed, and would, I doubt not, meet with the support of the Lord Chancellor and the Master of the Rolls. LANCE. SUPERIOR COURTS. Vice Chancellor's Court. INJUNCTION.-EX PARTE APPLICATIONS. The Court requires a full statement of fuels in applications ex parte for injunctions, and will hold a concealment of a material fact, a sufficient ground to dissolve the injunction. Mr. Jacob and Mr. Wood moved to dissolve an injunction granted on the 26th of May last on an ex parte application, to restrain the Bristol and Exeter Railway Company from proceeding with a line of railway, deviating as it was alleged, from the original line, for which the company obtained their act. The plaintiff was the owner of a piece of land in the parish of Uphill, a few miles from Bristol; through which it was originally intended to carry the railway, and during the progress of the bill through parliament, the company entered into an agreement with the plaintiff, that bis land should not be infringed upon, but that if they found it necessary to cut through it, they would pay him a compensation of 50007. in consideration of his withdrawing his opposition to the bill. The company under the ordinary clause inserted in all bills of this description, which empowered a deviation on each side of Superior Courts: Vice Chancellor; King's Bench Practice Court. the original line to the extent of one hundred yards, had carried the railway round the corner of the plaintiff's paddock, by a deviation of ninety-nine yards, and thereby avoided the necessity of cutting through his land. The plaintiff thereupon filed his bill, and obtained an injunction on an ex parte motion, supported by an affidavit that the deviation was considerably more than the act empowered the company to make, and that the deviation was not discovered till the 11th of May. The injunction would never have been granted, but for a gross misrepresentation, and suppression of several material facts from the knowledge of the Court. The chief question for the Court arose on the construction of the deviation clause. The evidence of the surveyor and engineer of the company, as well as of several persons engaged in promoting the bill, stated it to be universally understood that the deviation of one hundred yards, was intended to be measured from the centre of the original line to the centre of the line of deviation. But the computation made by the plaintiff was from the extreme edges of the lines, and that was a mis-interpretation of the act, and that alone would form a ground for dissolving the injunc. tion. The breadth allowed for the railway was twenty-two yards, and an extent of ten yards was permitted on each side for the erection of machinery for cuttings, or where it was necessary, for carriages to pass; and even if the plaintiff's construction was correct, though it excluded the space taken up by the railway, the deviation thus permitted would actually fall within the limits. The plaintiff's delay in making the application to the Court after an admission of his knowledge of the intention of the company, formed another fatal objection to the injunction. The plaintiff swore in his affidavit, that he first discovered the intention to deviate from the line on the 11th of May, but in a letter to one of the agents, dated the 19th of April, he expresly complained of another line being staked and marked out. It would be also for the Court to consider how far it would extend equitable relief to a party who sought to compel a defendant to commit an injury in order to obtain the amount of compensation coutingently stipulated on the completion of the damage. Mr. Knight, in opposition to the motion, contended that the question of construction to be put on the act of parliament, was one of such magnitude and importance to those whose properties were subject to the desolating consequences of railroads, that it ought to be solemnly decided by a court of law before this Court proceeded to deal with it. The plaintiff, confiding in the honor of the company, had not thought it necessary to obtain protection for his adjoining property, and now, by a quibble, the company sought to take advantage of his confidence and credulity. The letter of the agreement had been kept, but the spirit of it was broken. The company had silenced the opposition of the plaintiff, and now sought to avoid compensating him for the injury which 437 was done, in a slightly varied shape, to his property. The true construction of the act was given in the computation made by the plaintiff in his affidavit. His Honor The Vice Chancellor said he should certainly dissolve the injunction, and with costs, upon one point. He thought it of the very first importance that when ex parte applications were made to the Court for injunctions of a special nature, and when the Court had no opportunity of knowing the case made on the other side, all the facts, which of necessity belonged to it, should be stated with the greatest accuracy. Though he did not think there had been a wilful intention to suppress a material fact, and though he did not impute wilful mis-representation to the person who made the affidavit, still he was of opinion the Court ought to have been informed, when the ea parte application was made, of that fact, which appeared by the plaintiff's letter of the 19th of April. Without giving any opinion upon the variety of points raised in the course of the discussion, he thought the contradiction manifested upon the letter and affidavit conclusive of the question that the injunction had been improperly obtained, and therefore, whether the company had acted right or wrong, he should dissolve it with costs. Payne v. The Bristol and Exeter Railway Company.-Sittings at Lincoln's Inn, August 3d, 1837. King's Bench Practice Court. JUSTIFICATION OF BAIL.-INSOLVENT DEFEN DANT. The Court will not suffer bail to be justified in respect of a debt for which the defendant has taken the benefit of the Insolvent Act, and has been remanded. Bail was opposed in this case by Dowling, on the ground that the defendant had taken the benefit of the Insolvent Act, 7 G. 4, c. 57, in respect of the debt for which he now sought to put in bail. It was sworn that the defendant at this time was in prison under the order of the Court, having been remanded in respect of this and other debts, for twelve months, at the instance of the present plaintiff and other creditors. C. C. Jones, contrà, urged that this was no objection to the justification, as the defendant might be disposed to deny the propriety and justice of the debts in respect of which he was confined. The claim arose out of his having been guarantee for the debt of another, and when he sought the benefit of the Insolvent Act, although he might have had a good defence, he might have thought it right to introduce the debt into his schedule. He might besides avail himself of the Statute of Frauds. Coleridge, J.-To what purpose could bail be justified, after the defendant has confessed the debt before the Insolvent Court, and has sought to take the benefit of the act? C. C. Jones then urged, that as there was no affidavit by which the identity of the two debts |