bank called upon the defendant to pay the amount of the lost bill, it had offered him a bond to indemnify him against all future claim respecting it. He questioned the security of that bond, and compelled a reference to the Master to ascertain its validity; he had, therefore, very improperly refused a proper security, and must therefore pay the costs since the former hearing. Macartney v. Graham, M. R. Feb. 18. 1831.

DEVISE. CHARITY.

Robert How, the testator in this cause, bequeathed a sum of 2000l. to found two exhibitions in Balliol College, Oxford, but directed that the master and fellows of that college should confine the benefit of these exhibitions to the sons of clergymen of Somersetshire and Devonshire, who should be nineteen years of age, and properly qualified; and further requested that any relation of the testator should be preferred; and next to such person, the sons of those clergymen of the above-named counties who should have the smallest income; but if no such candidate should apply, then he directed that the funds should accumulate until they should do so. The exhibitions were refused by Balliol College under these conditions, and the present bill had been filed to establish the will; and on a reference to the Master, he had reported that Exeter College would accept the exhibitions, and had proposed as an alteration in the scheme, that the sons, not of the poorest clergymen in the said counties, should be preferred, but of the poorest of those who should apply. The cause now came on for further directions.

The Master of the Rolls approved of this alteration, and thought the plan proposed by the testator was so wild, that it could not be established by a court of equity, as a century might elapse before a person under it might apply. Attorney-General v. Lee, M. R. Mar. 11. 1831.

VICE-CHANCELLOR'S COURT.

WILL. PRACTICE.

In this case a will had been made in Ireland, and written in sheets, and one of the sheets was found separate from the others. On the hearing of the cause, the Vice-Chancellor had directed an issue to a court of common law, to try whether this sheet formed part of the will. This decree was appealed from; and Sir C. Wetherell and Mr. Pepys now applied to the court to stay the trial on the issue, until the appeal should have been heard.

Mr. Knight opposed the motion on the ground that the witnesses who could prove the facts were aged, and might die before the appeal could be disposed of.

The Vice-Chancellor was of the same opinion, and dismissed the application with costs. Miller v. Travers, V. C. March 11. 1831.

CANAL, RAILROAD.

Cunliffe v. The Manchester and Rochdale Canal

Company.

This case, which we alluded to in the report of Maudsley v. The same Company, No. xix.

317

p. 301, came on before the Vice Chancellor on a motion by the plaintiff, who was a share-holder, for an injunction to restrain the defendanst from applying the funds of the company in obtaining an act of parliament for converting the canal into a rail-road, which had been resolved on at a meeting of proprietors.

The Vice-Chancellor granted an injunction on the ground that the plaintiff was a partner, and that the funds of the company could not be so applied.

The case of Maudsley v. The Canal Company was different, as there the plaintiff had purchased after the resolution to apply to parliament, and with a full knowledge of it.

COURT OF KING'S BENCH.

THIRD COMMISSION OF BANKRUPT.

In an action for goods sold, the defendant, on a plea of bankruptcy, gave in evidence a commission of bankrupt, and his certificate under it. The plaintiff in reply proved a former commission, under which no dividend had been paid. Platt, for the defendant, contended that was no answer to the action.

Lord Tenterden C. J. held that it was, and referred to a recent decision in the case of Fowler Coster*, where, after an argument before the court in banco, and full consideration of all the authorities, the court held that a third commission issued against a trader, who had not paid any dividend under a first and second commission was a nullity. He had observed in that case, that frequent discharges under the bankrupt laws, were a great injury to the honest tradesman, and the legislature had therefore required the payment of 158. in the pound, under the first commision, to enable the man to trade again. It was the opinion of the whole court, after reference to all the authorities, that he Lord Chancellor had no power under the bankrupt act, to issue a commission for the distribution of effects, which were already vested in assignees under a former commission, and that such commission was a nullity. Anonymous, N. P. Sit. after H. T. 1831. K. B.

BANKRUPTCY.-CLAIM NOT PROVEABLE.

Assumpsit to recover 800l. under the following circumstances:- the plaintiff, who had been lessee or manager of the Opera House, gave up that establishment to the defendant on a certain arrangement. Part of that arrangement was, that the defendant should pay a bill of 800l. in the hands of Messrs. Chambers, Bankers, which had been accepted by the plaintiff, and this the defendant undertook to do. The defendant became bankrupt before the bill was due, and the plaintiff was obliged to pay the bill, and then brought his action against the defendant on his undertaking. The defendant pleaded his bankruptcy and certificate. The Judge who tried the case being inclined to the opinion, that this undertaking was not a debt which could be proved under the commission, and the verdict was therefore given for the plaintiff, with leave to the defendant's counsel to move to enter a nonsuit,

* 1 Lloyd v. Welsby's Merc. Rep. 203.

F. Pollock moved for a rule to show cause why the verdict should not be set aside and a nonsuit entered, on two grounds; first, that it was a debt which might, by the Bankrupt Act, be proved under the commission, in which case, the certificate was a discharge; and, secondly, that if the defendant's undertaking was not a debt proveable under the commission, then the plaintiff might have proved under that part of the act which related to sureties *, and he contended that by the agreement between the parties, the defendant had become the principal and the plaintiff the surety.

Lord Tenterden C. J. was of opinion that there ought to be no rule. The discharge of bankrupts from their liabilities by the certificate was purely a creature of the act of parliament; and the cases in which the bankrupt would be discharged must be limited to those distinctly set forth in the act. The certificate discharged the bankrupt from debts due from him at the time of the commission issuing; from debts for which he was undoubtedly liable at the time of the commission; and from debts which he was then undoubtedly liable to pay upon a contingency, of which proof was in a certain special way admitted. But this was no debt at all, but a mere undertaking to pay a bill if the plaintiff, who was the person liable on the face of it, should not pay. As to the second point, the plaintiff was clearly the person liable to the Messrs. Chambers on the face of the instrument; and, therefore, whatever might be the arrangement between the plaintiff and the defendant, the plaintiff was the principal and not the surety, and could not have proved in the character of surety. He was therefore of opinion that the defendant still remained liable on his undertaking, notwithstanding the certificate.

Littledale J. It was one of the purposes of the late Bankrupt Act to extend the cases in which the certificate should be discharged; but unfortunately for the defendant, there was no provision in the act which applied to his case. The act was confined to cases of debt only; and this was not a debt, but an undertaking.

Taunton J. was of the same opinion. Rule refused. Yallop y. Ebers, H.T. 1831. K. B.

LIABILITY TO PAROCHIAL RATE.

On a case for the opinion of the court, it appeared, that a person rented a house as a granary, in the parish of F., but always resided in the parish of G. The question for the determination of the Court was, whether he was liable to payment of parochial rates for the parish of F.

The court was of opinion that he was not. The parochial rates were payable by occupiers, and he did not occupy though he held. Rex v. Sharpe. H. T. 1831. K. B.

RETURN TO WRIT BY BAILIFF.

Sir J. Scarlett showed cause why a return of nulla bonú should not be taken off the file, on the ground that it had not been made by the 6 Geo. 4. c. 16. § 52.

The

proper returning officer. It appeared that about two years ago the plaintiff having obtained a judgment against the defendant, who had effects within the Liberty of Gower in Glamorganshire, sued out a fi. fa. indorsed to levy 1000l. The sheriff issued his mandate to the bailiff of the liberty, that bailiff then being a person of the name of Lewis Thomas, the appointee of the Duke of Beaufort under a charter granted by James I., in the fifth year of his reign, to Edmund Earl of Worcester, an ancestor of the present Duke, the latter had, by his bailiff, the return of all writs within the liberty of Gower. mandate was duly received by Lewis Thomas, but he becoming insane, no return to it was made. The Duke of Beaufort as the returning officer was ruled to return it, and his Grace having made default, a writ of distringas issued against him. In June last an application was made on the part of his Grace to set aside that writ, and to allow the new bailiff, Thomas Thomas, to make a return to the original mandate, nunc pro tunc, in any action. The plaintiff opposed the application, and the court directed the Duke or his bailiff to make such return as he might be advised. A return of nulla bona having been since made in the name of Thomas Thomas, the successor of the insane bailiff, a rule to show cause was obtained by the plaintiff, why that return should not be taken off the file, on the ground that the new bailiff was not the proper person to make the return, he not having been appointed to his office until after the mandate was returnable.

It was contended that the object of this application really was to compel the Duke of Beaufort to make the return in his own name, and that his Grace would never do as long as he could resist the proceedings. By the charter his Grace had the return of all writs within the liberty of Gower, but the returns were, by the very terms of the charter, to be made "by his bailiff." The return had been properly made in the name of the new bailiff, but the Duke of Beaufort had no objection to let a fresh return be made in the name of Lewis Thomas, the former bailiff, if that would satisfy the plaintiff. Ludlow Serjeant, and Talfourd also opposed

the rule.

J. Williams, Campbell, and Cresswell were heard in support of the rule. The Court had decided on a former occasion upon the construction of the charter, that the Duke was the returning officer. That question being determined, it was difficult to understand the reason of his Grace's objection to make the return in his own name.

Lord Tenterden C. J. We think that Thomas Thomas was not the proper officer to make the return, inasmuch as he was not the bailiff until after the mandate was returnable. The rule, therefore, for taking the return off the file must be absolute. Rule absolute.-Newland v. Cliff, H. T. 1831. K. B.

COURT OF COMMON PLEAS.
PUBLICATION OF DEPOSITIONS.

Wilde Serjt. showed cause against a rule of Taddy Serjt., calling on the defendant to show

cause why the secondary should not be restrained from giving to the plaintiff copies of the depositions taken at Bombay under a writ of mandamus, directed by this court to the chief justice of the supreme court of that presidency, for the examination of certain witnesses residing in India. The action was brought against the defendant for negligence in the disposal of goods belonging to the plaintiff. The affidavit on which the rule had been obtained stated, that although the court, in granting the mandamus, made it part of the rule, that the plaintiff might be a party to it if he pleased, yet the latter had declined to avail himself of that permission, and refused to bear any part in the expense; that he now sought to obtain copies of the depositions taken in obedience to the writ, which would have the effect of prejudicing the defendant's case. In opposition to that rule an affidavit was produced, stating that it was the invariable practice of all the superior courts, both equity, law, and ecclesiastical, to allow either party in the cause to have a copy of such depositions from the officer of the court, whether he were a party to the writ or commision under which they were taken, or not; and the learned serjeant contended that such practice was the sound construction of the 13 Geo. 3. c. 63. § 40. and 44., on which this proceeding was founded.

Taddy Serjt., in support of the sale, contended that, according to the true construction of the act, it was only the persons who had been parties to the application for the writ or commission, and not the parties to the cause generally, who were entitled to have copies of the depositions.

The court were unanimously of opinion that the practice proved to have invariably existed on this subject was in perfect accordance with the true and manifest construction of the act of parliament. Rule discharged. Dandson v. Nicholls, H. T. 1831. C. P.

ADDENDA TO ANSWER TO QUERIES IN NO. XVIII. p. 288.

Where there are two sets of bail, both must be excepted to, and notice given; otherwise the plaintiff cannot attach the sheriff or proceed on the bond. 2 B. & A. 604. 7 D. & R. 259.

IRELAND.

[We shall occasionally present our readers with important decisions in Ireland. We quote at present from the Law Recorder.]

CHANCERY COURT.

A MISTAKE IN A DECREE NOT RECTIFIED, ALTHOUGH THE DECREE WAS NOT ENROLLED,

French v. Morgan.

"Mr. Litton (with whom was Mr. Blacker) moved, that what could be considered a clerical error only in the report, and in the decree in this cause, should now be amended. They omitted to state an arrear of several years, due on the foot of the annuity deed. The decree was not enrolled, so there could be no objection on that score. The bill was filed for an arrear of ten years' annuity, due under an annuity deed, and the defendants alleged not only usury, but fraud. The case was heard by Lord Man

ners, who was satisfied there was no fraud, but he sent it to the Court of King's Bench to say whether the payment of the insurance, which was covenanted to be paid by the grantor, could be considered usury, and the Court decided it was not. Accordingly, his Lordship made a decree, declaring this annuity to be a good charge on the lands in the pleadings mentioned. The plaintiff charges, that one shilling was never paid, and the defendant admits that, and says he resisted the payment on the ground of gross fraud. The leaving out this arrear was quite an accidental omission, and when your Lordship has the facts in the answer, and that the answer appears on the final decree, the Court will not hesitate to correct what was merely left out by mistake.

Lord Chancellor.-You want, after a report and decree, that I should superadd so many payments.

Mr. Litton.-I think the Court may amend, from the authority of Wyatt's Practical Register. Lord Chancellor.-If that is the best case you can cite, you certainly are at liberty to make the best use you can of it.

Mr. Blacker.-We really do not seek to disturb any point of right or equity, but merely to amend the report and decree, and that by the usual thing to amend by, the record itself. If it is left as it is, it is quite an incongruous decree. On the very admission of the party, we are entitled to what we seek.

Mr. Richards (contra).-They are entitled to no favour. Their case was a suspicious case, for we applied to them for a copy of the annuity deed, and they refused to give it to us. This motion too is not made until after the death of our solicitor.

Lord Chancellor.-I should be laying a very bad precedent if I granted this motion. There is neither surprise nor mistake alleged. The motion must be refused, with costs. Dec. 14.1830.

AN ASSIGNEE WHO ONCE ACCEPTS THE SITUATION, MUST BE REMOVED AT HIS OWN EXPENSE.

Ex parte Bainbridge, In the matter of Palmer, a Bankrupt.

Mr. Creighton moved that Mr. Bainbridge should be discharged from being assignee, to which he was elected in conjunction with a Mr. White, and that Mr. White should continue sole assignee. There was no inconvenience from this, for although he had accepted of the trust by power of attorney, he had not otherwise interfered in the receipts of any money, or in any proceedings taken; but finding that the affairs of this bankrupt were involved in many different equity and other suits, in which it would be necessary the assignees should be parties, it is thought it would be much more convenient for him to resign the assigneeship, and almost all the creditors have agreed to his doing so, and to Mr. White being continued the sole assignee.

Lord Chancellor. He must be discharged on the usual terms, a meeting being called to choose another assignee, or to continue Mr. White as the sole assignee, and all this must be at Mr. Bainbridge's expense.

Mr. Creighton.-I think you will find there

320

is a distinction in 5 Mad. 70. when an assignee is moved for the convenience of the estate, and when he moves himself for his own convenience. It is here done by the consent of the majority of the creditors, and also of Mr. White.

Lord Chancellor. There is no one I see on the other side; but Mr. Bainbridge, unfortunately, has undertaken a trust without looking at the consequences, or the inconvenience that would arise from his doing so. He must, therefore, call a meeting of the creditors, who may take the option whether they will appoint a new assignec or not; and according to that option let him either convey to the new assignee, or release to the old one, and he must pay all the costs of the proceedings. Nov. 6. 1830.

MINOR CORRESPONDENCE.

METROPOLITAN REGISTRY.

I have waited for some time in the expectation of seeing your attention directed to an error in calculation, which occurs in the report of the commissioners on real property, and the strictures of all your correspondents on the subject of a general registry. The error I allude is this : - It is supposed that 500 deeds will be registered daily; and then it is asserted that this number will amount to one million annually. Now, in fact, it will not amount to one tithe of that number; as 365 X 300=109,500; and if Sundays, Good Friday, and Christmas Day are deducted, it will stand thus: 365-54 =311X300=93,300.

I do not know whether the commissioners

have founded any measure or theory upon the supposed million of deeds to be registered; but what becomes of the argument of your correspondent, in the Number for Saturday, Feb. 12? and where was his knowledge of the first rules of arithmetic, when comparing the size of a building which would be required, with that now erected in Dublin?

W. P.S.

"When More some years had chancellor been,
No more suits did remain;
The same shall never more be seen,
Till More be there again."

The poet was wrong, however. We need not go
far for an instance of a living judge to whom the
same merit may be as justly ascribed; and a
correspondent has enabled us to celebrate the
circumstance as melodiously:-
:-

"A judge sat on the judgment seat,
A goodly judge was he;
He said unto the registrar,

'Now call a cause to me.'
There is no cause,' said registrar,
And loud laughed he with glee,
'A cunning Leach hath despatched them all,
I can call no cause to thee.""

EVIDENCE OF SLAVES.

Both in Greece and Rome nothing was so common in all trials, both civil and criminal, as to resort to the evidence of slaves, which was always extorted by the most exquisite torments. Demosthenes says, (in Oratorem, orat. i.) that when it was possible to produce for the same fact either freemen or slaves as witnesses, the judges always preferred the torturing of slaves as a more certain evidence. Cicero, however, seems to think this evidence not so certain as the testimony of free citizens. Orat. pro Celio.

WITNESSES. -REMUNERATION.

The case of Collins v. Godferoy, reported in the Legal Observer, p. 235., decides the point, that an attorney cannot maintain an action for the loss of time, in attending as a witness in the courts of Westminster; but does the rule apply also to the assizes? If so, the decision bears exceedingly hard on the members of the profession. An attorney who is under subpoena to give evidence in a cause to be tried at the sittings in London or Westminster, may generally calculate on the probable period of his being wanted in court, and regulate his attendance there without its materially interfering with his general duties; but does it not appear unjust that a professional man should be compelled to abandon his clients, and special duties, to attend on a subpoena at the Cornwall or other distant assizes, where he may be detained a week or ten days, and yet receive no remuneration beyond his bare travelling and tavern expenses?

JUDGE ROOKE.

Judge Rooke, in going the Western circuit, had a large stone thrown at his head; but from the circumstance of his stooping very much, it passed over him. "You see," said he to his friends, "that had I been an upright judge, I might have been killed."

MR. CURRAN.

The Irish judge, Day, who was not overburdened with briefs when a barrister, obtained his promotion, through court favour, to the judicial chair of the county Dublin sessions-house at Kilmainham, and it was rumoured that he had declined all further bar practice. It was asked, on whom the chairman conferred the bar bag? (A phrase implying all his briefs, fees, and recommendations to practice.) Curran answered, that "the chairman would certainly keep it himself, for he was too generous a man to confer an empty compliment."

PERMIT me once more to intrude upon your notice in a matter of the highest importance to the country and to your Lordship. I may be first allowed to disclaim any want of confidence in your talents, integrity, or fitness for the situation into which your Lordship has elevated yourself. I have watched most carefully the whole of your conduct since you have held the great seal. I have scrutinised most severely all your actions and all your speeches, and am satisfied you have the good of the country at heart. I most cordially despise the attempts which have been made to detract from your noble efforts to relieve the administration of justice, from some of its burdens, and rejoice that your Lordship has been able so triumphantly to defend your conduct. No assistance is necessary to you, or it would be most heartily rendered; but you have only to follow up the rational and moderate reforms you have commenced, and singly you may take the field against all the foes that attempt to assail them.

It has indeed been said, my Lord, and the opinion has received the countenance of some persons whose words are entitled to some attention, that your Lordship's measures are, to use a familiar but expressive term, "a mere job;" that you have availed yourself of the absence of the Chief Baron to hurry through a measure which will displace almost all the persons whom he considered competent to fulfil the duties of office, and which will enable you to bestow on your own friends ten or twelve valuable appointments. All this I merely allude to in order to declare my sincere

NO. XXI.

belief that no such unworthy motive has actuated your Lordship. On the contrary, as I have said before, I am confident that your Lordship had the good of your country at heart when you proposed your late measures. My hopes then mainly rest on your Lordship, and I should be grieved if there were any real ground of complaint against you.

These being my feelings, my Lord, I have heard with great regret of a late decision of your Lordship, and of the words in which that decision was made. I allude, my Lord, to the case of Portman v. Mills, which came on before your Lordship for hearing on Thursday and Friday, the 17th and 18th of the present month. I understand, that throughout the whole of this important and difficult cause, considerable impatience was manifested by the Court; but that it was shown most conspicuously on a dispute between the counsel concerned in the cause whether the word "customary" was inserted in a particular agreement. I understand, your Lordship at the close of the discussion, hastily exclaimed, addressing one of the counsel who had been most strenuous in the argument, "Would to God, Mr. Lynch, that it (the word customary) had been there, as I should then have been spared all this discussion." I am told, moreover, that at the close of the argument of counsel, your Lordship, without one moment's hesitation, confirmed the decision of the court below, adding only these extraordinary words, "I shall not assign my reasons, nor can I ever do so when the arguments of counsel have been so long as they have been in this cause."

Now, my Lord, if these, or any others having the same meaning, were your words, allow me to say that if they are to be adhered to, there is an end of the administration of justice in this country. You will D. d