6 Changes in the Law made during the last Session of Parliament. The act recites the second section of the the reform act; and that they would then | sider, further duties are allotted to the gladly leave political matters to their superiors, Puisne Judges in Bankruptcy. and themselves attend to their proper business; but in the mean time, and until the evils of which I complain predominate, it cannot be expected the public mind will be satisfied. PRO BONO PUBLICO. Oct. 18, 1833. last Insolvent Act, 7 G. 4 c. 57, whereby that Court is constituted; and also the first section of the Bankruptcy Court Act, 1 & 2 W. 4. c. 56; and that Judges have been appointed under the latter of these acts; and "that consistently with the vacation CHANGES MADE IN THE LAW IN necessarily allowed to the Commissioners THE LAST SESSION OF PARLIA-of the first mentioned Court, and with the MENT, 1833. No. XIII. time occupied by them while they are on their several circuits, intervals occur in the sittings, during which prisoners who would THE ACT FOR AMENDING THE BANKRUPTCY otherwise be entitled to their discharge, COURT ACT. 3 & 4 W. 4. c. 47. THIS act is a verification of the objections which we made to the Bankruptcy Court Act; and were we disposed to pride ourselves on our prophetic powers, we have here some reason for self-gratulation. From the first period at which the project of that bill was broached, we asserted that one of its chief faults was raising up a new Court, and giving them much too little to do; and more recently, in reconsidering the subject, we insisted that it was clear, that if the Vice Chancellor could dispatch the petitions in bankruptcy, together with all his other heavy business, it was unnecessary to appoint four Judges, whose only duty should be to hear those petitions; and we then hoped that the matter would receive attention in the proper quarter, and that two instead of four Judges would be appointed. It soon became notorious that the Court of Review was very little employed, and that our objections, which were also strenuously insisted on by the persons best acquainted with the subject, Mr. Basil Montagu and others, were substantial ones: and we certainly think it to the credit of the Lord Chancellor that he has given way to them, and endeavoured to make his own creation as perfect as possible. The vacancy caused in the Court of Review by the death of Mr. Justice Pell, was not filled up; and by two acts passed in the present session, the learned lord has endeavoured to find some further employment for the remaining three learned judges. By the act for remodelling the Privy Council, 3 & 4 W. 4. c. 41, stated in our sixth volume, p. 337, the Chief Judge in Bankruptcy is appointed a member of "The Judicial Committee of the Privy Council;" and by the present act, which we shall now con a See 3 L. O. 366, April 7, 1832. cannot obtain the same;" and "that there are not a sufficient number of such Commissioners to enable them to extend their circuits into Wales;" and that "the business of the said Court of Bankruptcy will allow time for the Judges of that Court, other than the Chief, some one or more of in the Commissioners of the said first menthem to discharge part of the duties vested tioned Court." It is therefore enacted, that the King may direct the Judges, other than the Chief, of the Court of Bankruptcy, to act as a Commissioner, or as Commissioners, at such times and for such purposes as may be specified in any such commission. the same powers and privileges as the By section 2, the said Judges are to have Commissioners of the Insolvent Debtors' Court, whether in London or on circuit. By sect. 3, the circuits of the Insolvent Debtors Commissioners are hereafter to be extended into Wales; and the Insolvent Court is empowered to order prisoners in any gaol in Wales to be brought either before one of the Commissioners or a Puisne Judge of the Court of Bankruptcy, acting by virtue of this act. By sect. 4, the Clerks of the Peace of the principality of Wales are to bring to the place of hearing petitions, the duplicate of petition, schedule, and other necessary books and papers, and shall be entitled to the fees and allowances allowed to Clerks of the Peace in England. By sect. 5, the Lords of the Treasury are authorized to direct the payment of the travelling expenses of the Judges and their officers. By sect. 6, the Court of Review may direct the Registrars and Deputy Registrars of the Court of Bankruptcy to attend the Bankruptcy Judges in the discharge of their duties under this act. By sect. 7, power is also given to the King, by royal warrant, to authorize any Municipal Corporations Commission.—Abstracts of Recent Statutes. one or more of the Judges of the Court of Bankruptcy to exercise the same jurisdiction and powers as by the 1 & 2 W. 4. c. 56, are given to any three of the Judges; and also to direct at what times the Court of Review, and the Judges and Commissioners of the Court of Bankruptcy, shall respectively hold their sittings. By sect. 8. the Court of Review is authorized to order that costs may be taxed by one of the Registrars or Deputy Registrars of the Court of Bankruptcy, instead of one of the Masters in Chancery. By this last section, it will be observed that sec. 5 of the 1 & 2 W 4. c. 56. is altered. 7 purposes, over the whole community within their municipium or free town. The enquiry to be instituted under the above commission appears, however, to embrace other objects than city and town corporations, as will be seen by referring to the operative words of the recital contained in J. G.'s query, by which the commissioners are also directed to enquire into the several local jurisdictions existing within the limits of all corporate towns ' in England and Wales,' &c. This power of course extends to all Local Courts at least this is what I understand to be the legal meaning of local jurisdictions.' I should observe, that I have not at present seen any copy of the commission Relying therefore upon J. G.'s recital, I consider that By this act it will be seen, that new, and the powers of the Commissioners (provided perhaps not very pleasant duties, are im- the commission be legal for all or any of its posed on the Puisne Judges of the Court of purposes), extends only to such municipal corporations as the word imports, viz., cities or Review, Probably their assent to the ad-towns; and also to all Courts possessing local ditional labour was obtained before the jurisdiction or the administration of justice, passing of the act: if it had not been, it within the limits of such corporate cities or might remain to be seen how far the om- towns. nipotence of Parliament could force a Judge to perform the duties of another Court; and whether, if he pleased to decline to act, he could be compelled to do so. tions. may be observed, that the present Master of the Rolls is expressly exempted from the new duties given by the Chancery Regu lation Act to his office, except with his assent, although they merely increase his labours in his own Court. It As to the great legal question touching the validity of these Commissions, and which has been disputed in former times, I refer J. G. to 1 Vol. Blac. Com. c. 18, title Corpora 21st October. S-n. ABSTRACTS OF RECENT STATUTES. MUNICIPAL CORPORATIONS COM MISSION. a TREATMENT OF INSANE PERSONS. THIS act is intituled "An Act to amend an Treatment of Insane Persons in England," THE primary object of this commission, ap-sent Majesty, for regulating the Care and pears to be an enquiry into such Corporations, as are comprehended under the term Municipal,' i. e. cities and towns having corporate powers or jurisdictions. The definition of the word 'Municipal,' warrants this construction. It is synonymous with municipalis, from municipium, a city or town corporate.b Towns corporate, are a species of lay corporations, of which there are others of a minor description, such as incorporated trading companies, and others for special purposes; but the latter are in the nature of private societies, having no jurisdiction beyond the management of their own affairs; whereas, cities and towns corporate (i. e. municipal corporations) are public bodies, having jurisdiction for various 1. That whensoever the justices in session shall, under the provisions of the said recited act, appoint a time and place for the visitors to meet for the purpose of executing the duties imposed on them by the said act, every such appointment shall be made as privately as may be, and in such manner that no proprietor or resident superintendent of any house to be visited shall at any time have notice of the day or time appointed for the visitation of such house. 2. The clerk of the Metropolitan Commissioners in Lunacy shall preserve every notice and copy of order and medical certificate transmitted to him when any patient is received into any house licensed under the said act, and also every notice of death, removal, or discharge of any patient or patients transmitted to him under the said recited act or this act, and that every clerk of the peace shall also preserve every duplicate copy of order Abstracts of Recent Statutes. and medical certificate and notice transmitted case such house shall have been licensed by the to him in every such case as aforesaid; and justices in sessions, to the clerk of the peace, that each of them the said clerk of the said then and in every such case such proprietor or commissioners and clerk of the peace shall, at resident superintendent shall forthwith transall times within five clear days next after he mit every such notice and copy of statement shall receive every such notice or copy of so omitted to be sent or transmitted to the order and medical certificate as aforesaid, en- clerk of the metropolitan commissioners or ter in a register to be provided for that purpose clerk of the peace, or to the clerk of the methe Christian and surname of the insane per-tropolitan commissioners and clerk of the son to whom such notice or copy shall relate, peace, as the case may require. and also of the persons by whose order and upon whose medical certificate or certificates such insane person shall be confined, and the house in which such insane person shall be confined, according to the form directed by the said act: Penalty for neglect, five pounds each offence. 3. Whenever any patient confined in any house licensed under the said recited act shall be removed or discharged therefrom, or shall die therein, the proprietor or resident superintendent of such house shall, within two clear days next after such removal, discharge, or death, transmit a written notice thereof, and (in case the patient so dying shall be a parish pauper patient, then) also a copy of the stateinent of the cause of his or her death, in the said act directed to be made, certified and according to the forms respectively prescribed by the said act, or as near thereto as may be, to the said clerk of the said commisioners, if the house wherein the patient shall then have died, or from which he shall have been removed or discharged, shall have been licensed by the said commissioners, but if such house shall have been licensed by the justices in sessions, then such proprietor or resident superintendent shall transmit one such notice to the clerk of the commissioners, and one other such notice to the clerk of the peace. 4. All copies of orders and medical certificates, and notices of admissions, and also of removals and deaths, which have been transmitted to the clerk of the metropolitan commissioners or to any clerk of the peace since the 11th August 1832, under the said recited act, and which have not been registered by the said clerk of the metropolitan commissioners or the said clerk of the peace, as the case may be, shall be registered forthwith by the said clerk of the metropolitan commissioners or clerk of the peace, as the case may require, in the same manner as in this act is provided for the registry of orders, medical certificates, and notices of admissions, removals, and deaths, hereafter to be transmitted to the said clerk of the metropolitan commissioners and clerk of the peace respectively. 5. Where any insane person shall, since the 11th Aug. 1832, have died in or been removed from any house licensed under the said act, and the proprietor or resident superintendent thereof shall not have transmitted notice of such death or removal, with a copy of the statement of the causes of death in every case where the insane person so dying shall have been a parish pauper patient, to the clerk of the metropolitan commissioners, and also, in 6. Every metropolitan commissioner appointed or to be appointed under the said recited act, being a practising barrister, shall be allowed and paid for the time he shall be employed in executing the duties of his office after the same rate, and in the same manner, and out of the same fund or funds, as by the said act is provided concerning the payment or allowance of commissioners being physicians: Provided, that not more than two of the said commissioners at any one time shall be capable of receiving such payment or allowance; and if more than two of such commissioners shall be practising barristers, such payment or allowance shall be made to such two of such barristers as the Lord Chancellor or other person intrusted with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, shall direct. 7. Every proprietor and resident superintendent of any house licensed under the said recited act who shall knowingly and wilfully neglect to transmit any notice, copy of order, medical certificate, or statement by this act required to be by him transmitted, shall be deemed guilty of a misdemeanor; and all complaints, informations, and prosecutions of and for offences against this act shall be made and prosecuted, and all fines, penalties, or forfeitures shall be recovered, levied, and applied, by such persons and in such and the same manner respectively as in the said recited act is provided respectively concerning the offences against the said act, and the fines, penalties, and forfeitures thereby imposed; and every provision whatsoever in the said recited act contained concerning actions and suits commenced and brought against any person for any thing done in pursuance of the said act shall be applicable and applied to all actions and suits which shall be commenced or brought against any person for any thing done in pursuance of this act, as if the same provisions were here repeated and applied to the said last-mentioned actions and suits. 8. The provisions in the said recited act contained concerning the meaning and construction of words and phrases in the said recited act shall extend and be applied to the like words and phrases in this act. Notices of New Books.-Superior Courts: House of Lords. NOTICES OF NEW BOOKS. 9 qualifications of every general rule. On the contrary, the author has, he would hope, sucAn Elementary and Practical Treatise on the ceeded in compiling such a statement of the Commencement of Personal Actions, and practice, upon which he professes to treat, as the Proceedings therein to Declaration, in may be readily comprehended, and remembered without difficulty, even by uninitiated the Superior Courts at Westminster, comprofessional students. To such, it is considered prising the Changes effected by the Uni-that this work will be found peculiarly adaptformity of Process Act (2 W. 4, c. 39), ed, being written upon the assumption of the and Recent Rules of Court. With an Ap-reader's previous ignorance, for the most part, pendix of the Statute, the Rules referred even of the terms from time to time employed. to, and appropriate Practical Forms. By The practitioner, to whom much of the elemenWilliam Atherton, Esq., of the Inner tary portion of the work may appear superfluTemple, Special Pleader. London: Saun-ous, will, at the same time, find a simple arrangement of the practice, which he must now ders and Benning. 1833. adopt, unencumbered with details of the former This is a useful book, on the Commence- practice, excepting so far as the present dement of Personal Actions, and the pro- of the recent Rules of Court which apply pends upon it. The Appendix of Forms, and ceedings up to and including the Declar- to the commencement of actions, may, peration. It also comprises the means of sav-haps, enhance the work, in a practical point ing the Statute of Limitations, and the proceedings to Outlawry. The following practical matters are also added: particulars of the plaintiff's demand, settlement of actions, end the practice by summons and order. of view. "The questions, to which so general a measure as the Uniformity of Process Act must have been expected to give rise, and several of which are still undecided, the author has stated, and considered at large and, although, in some cases, a certain conclusion can hardly as yet be arrived at, it has not been deemed either impracticable, or useless, to define where the diffi We do not exactly understand why the author has limited his labours to these subjects, unless it be (which we do not find stated in the present book) that he intends in a se-culties lie; and thus to apprize the practitioner, cond volume to complete the work. The more useful as a guide the treatise may be, up to the delivery of the declaration, the more will the practitioner regret that at that stage of his journey he loses the author's assistance. We shall leave Mr. Atherton to explain his own views, by the following extract from the preface: in what cases he may act without hesitation, and where his course is problematical. Very particular attention has been bestowed upon the language of those parts of the statute, of which the meaning has been considered doubtful: and the writer is not aware that, in this respect, his labours have been anticipated by any author earlier in the field.” The work appears to be carefully executed, and the authorities and practical forms diligently collected. The addenda to the book comprises the alterations recently made by the Rules of "A knowledge of the Practice of the Courts Court, of last Trinity Term, the Law Amendhas been thought to be almost, if not altoge- ment Act, 3 & 4 W. 4. c. 42; the Limither, unattainable from books: and this opi- tation of Real Actions Act, 3 & 4 W 4. c. nion, until a recent period, was at least plausi-27; and the Uniformity of Process Amendble. The practice differed widely in the various ment Act, 3 & 4 W. 4. c. 67. Courts in many respects it was founded upon obsolete technical customs; in others it was quite arbitrary. There was difficulty, also, in bringing questions of doubt to any satisfactory test; since the practice, where not declared by Rules of Court, or ascertained by unquestionable usage, lay entirely in the discretion of the Judges, aided, perhaps, by the traditions of their officers. The diversity here alluded to has recently been, in great measure, put an end to: completely so, in fact, as far as relates to the commencement of actions; the practice affecting which is considered in the following pages. The alterations, by which this uniformity has been effected, are simple in their principle, and are immediately derived from an act of the legislature, and from rules sanctioned by the Judges of the respective Courts. "In a treatise such as the following, it is now, in consequence, no longer necessary to burden or confuse the memory of the reader, by perpetual digression, or numerous nice SUPERIOR COURTS. Hause of Lords. RIGHTS AND LIABILITIES OF PARTIES.- A foreign sovereign having a right to sue A plaintiff having obtained an order to amend after answer is put in to his original bill, and after a cross bill is filed against him, 10 Superior Courts: House of Lords. is bound to answer the latter before he can | stated as made by the Vice Chancellor and compel an answer to his amended bill. affirmed by the Lord Chancellor, the King of The appellant's original bill, filed in 1827, Spain now appealed to this House. stated that one Justo de Machado, his agent, Wetherell, in support of the appeal, argued The Attorney General and Sir Charles appointed to receive certain indemnity funds, that the bill of the respondents was not techniset apart by the French Government, in pursuance of certain conventions between that cally or substantially a cross bill. It described Government and Spain, to satisfy the claims of the appellant differently from the description of the subjects of the King of Spain on France him in the original suit, whereas a cross bill is for damage done and losses sustained during only properly maintainable against the same the revolutionary war, and charged that Ma- plaintiff. It contained allegations and charges chado sold out the said funds in France, trans- which had no foundation in truth, and had no ferred the proceeds to this country, and de- relation to the matter of the original suit, and posited above 200,000l. of them with the therefore not necessary to the respondents' derespondents, Hullet & Co., in the name of one fence against it. It was morally impossible for Achilles de Pereira, Machado's secretary; and a foreign sovereign to swear an answer to a it prayed that the defendants might answer the bill in our Court. Being admitted to sue as a matters charged in the bill, and might pay into sovereign, he could not sink his political capathe bank of England, to the credit of the city in the natural person. The law of nations cause, the balance of the monies so deposited external to his kingdom; and to swear to an forbids the sovereign's taking an oath in matters answer before a commissioner from our Court would be tantamount to an abdication of soveof Chancery in the face of his own subjects, reignty, as it would be acknowledging a superior. The appellant had no personal knowledge of the matters inquired into by the cross bill, and he tendered an officer of his own government to put in an answer on his behalf, to give all the information that could be required, and to be liable to all the consequences, as residing within the jurisdiction and subject to the control of the Court. The rule of practice as to answers to cross bills was dispensed with in and married women,—and why not in the case cases of peers, corporations, infants, lunatics, of a king? There being no precedent in this case, the House might make one. with them and then in their hands. The respondents demurred to the bill, chiefly on the ground that a foreign sovereign is not entitled to sue in the Courts of Equity in England. But their demurrer on that point was overruled by the then Lord Chancellor, and his decision was confirmed upon appeal to this House, whereby it was established that a foreign sovereign may sue, on behalf of his subjects, in our Courts of Equity as well as at law.a The respondents then put in their answer to the bill, and in a few days after filed a cross bill against the King of Spain and others, stating that his Catholic Majesty had in his possession or power various documents and accounts, and also personal knowledge of divers transactions, the full communication and discovery of all which was material to their defence to his suit, and praying in the usual way that his majesty may answer all the matters in their cross bill charged against him. Sir Edward Sugden and Mr. James Rusbill of the respondents was strictly according sell, for the respondents, maintained that the to the principle of cross bills, and had for its The appellant, in the year 1830, more than object bond fide a discovery of matters essential a year and a half after the respondent's anto the defence of the respondents to the oriswer, obtained an order to amend his bill; that ginal suit. The appellant was bound to give order was set aside for irregularity,b on the to the respondents the justice he asked for application of the respondents, but was after- himself; and coming as a suitor in this counwards restored on the ground that the accept-try, he could not import his prerogatives with ance of the 20s. costs was a waiver of the irregularity.c The bill being accordingly amended, the respondents obtained an order from the Vice Chancellor, giving them a month's time to answer that amended bill after the appellant had answered their cross bill, and that order was affirmed, on appeal, by the Lord Chancellor. A motion was subsequently made to the late Lord Chancellor, to the effect that the appellant might put in an answer to the cross bill by an officer commissioned by him for that purpose, or that his own answer to it might be taken without oath. That motion was refused; and the order of refusal was, upon re-hearing, confirmed by the present Lord Chancellor. From this order, and from other orders made in both causes, among which was that above a See 1 Dow. & Clark, 169. b 13th New Orders. c 1 Russ. & Myl., 1—7. him, but should submit to the rules of our Court like all other suitors. The laws of England recognized no distinction between suitors. The law on this matter was fully laid down in Colvin's case, and in the case of the Columbian Government v. Rothschild. The law of nations had nothing to do with the matter, and the analogy with peers, corporations, infants, or lunatics, did not hold. The Lord Chancellor, who was assisted by Lord Wynford and Lord Plunkett in hearing the case argued, said there was no necessity to postpone their judgment. Although the King of Spain was justly allowed to sue in our Court in his political capacity, yet he did not import any privileges that could displace the practice as applying to other suitors. Lord Lyndhurst, in moving the judgment of this House upon d 7 Co. Rep., 29, 30. |