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entered into for an illegal purpose; where the agreement being by an agent omits the usual and proper stipulations in favour of the principal; where the contract has been procured to be entered into by fraud, duress, surprise, misrepresentation, concealment, or even a common mistake, where the whole material parts of the contract cannot be carried into execution (3 L. C. 43, 121); where the terms are doubtful, or the purchaser has been deceived in any material respects (see Dart, Ch. 18, ss. 8, 9, 3rd edit.).

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VIII.-Two administration suits.-Where two administration suits are instituted by different creditors, both will be allowed to proceed until one obtains a decree, and then on application of the defendant in that suit the court will ceedings in the other suit; if the different courts, a transfer of the suit should be obtained (Duffort v. A., 5 W. R. 241; 3 L. C. 297). It must be shown that all the relief claimed in the second suit can be obtained under the decree in the first; and in general the plaintiff in the second suit is entitled to his costs up to notice of the decree in the other suit.

to be stayed

IX. Decree, binding - Non-appearing defendant abroad. Where a decree is made in a cause in which a defendant who is abroad has not appeared, an office copy of it should be served on the defendant or his solicitor, and if the decree be not absolute, a notice should be served therewith to the effect that if the defendant wishes to set aside the decree, application must be made to the court within a limited time. If the decree and notice be served, the decree will be absolute after the time mentioned in the order, if the defendant does not set aside the decree; if not served, it will be absolute within three years (Orders, 1845, pl. 68, 81–90).


X. Summons at chambers.-Relief may be obtained by summons at chambers in administration cases. Thus creditors, or legatees, or next of kin may proceed by summons against the executors administrators of the estate of a deceased person in respect of personal estate only, and 80 may creditors only against the real estate of the deceased (15 & 16 Vic. c. 86, ss. 45, 47; 1 L. C. 54, 262, 408; First Book, 288).

XI. Service of bill.-A bill may be served by delivering a copy to the defendant, or leaving it at his dwelling-house with a servant there (Pycroft v. Williams, 5 Week. Rep. 464; 3 L. C. 399 So the court on application may direct substituted service in such manner and in such cases as it shall think proper (15 & 16 Vic. c. 86, s. 5; Hope v. Hope, 23 Law Tim. Rep. 198; Bone v. Angier, 4 Week. Rep. 609; Steele v. Gordon, 24 Law Tim. Rep. 207; 1 L. C. 92, 307; 3 Id. 128; Reed v.

Barton, 5 W. R. 793). Where the defendant is abroad, the court may order service out of the jurisdiction (33rd Order of May, 1845).

XII. Settled Estates Act.-The 19 & 20 Vic. c. 120, has for its object the empowering the Court of Chancery to authorise leases and sales of settled estates, where such leases and sales shall be deemed in the words of the preamble proper and consistent with a due regard for the interests of all parties entitled under the settlement (which includes a will, or other instrument by virtue of which any hereditaments are limited in trust by way of succession), and also to enable persons in possession of land for certain limited interests to grant agricultural or occupation leases thereof, at rack-rent, for a reasonable period. The following conditions are to be observed in the execution of the act, with regard to granting leases of settled estates:-First, the lease must be made to take effect in possession at or within one year after the making, and be for a term of years not exceeding for an agricultural or occupation lease twenty-one years, for a mining lease, or a lease of water, water mills, wayleaves, waterleaves, or other rights or easements, forty years, and for a building lease ninety-nine years, or where the court is satisfied that it is the usual custom of the district and beneficial to the inheritance to grant building leases for longer terms, then for such term as the court shall direct. Secondly, oh every such lease must be reserved the best rent, or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, payable halfyearly or oftener, without taking any fine or other benefit in the nature of a fine. Thirdly, where the lease is of any earth, coal, stone, or mineral, a certain portion of the whole rent or payment reserved must be from time to time set aside and invested as hereinafter mentioned—namely, when and so long as the person for the time being entitled to the receipt of such rent is a person who by reason of his estate, or by virtue of any declaration in the settlement, is entitled to work such earth, coal, stone, or mineral for his own benefit, one-fourth part of such rent, and otherwise three-fourth parts thereof; and in every such lease sufficient provision must be made to insure such application of the aforesaid portion of the rent, by the appointment of trustees or otherwise. Fourthly, no such lease is to authorise the felling of any trees, except so far as necessary for the purpose of clearing the ground for any buildings, excavations, or other works authorised by the lease. Fifthly, every such lease must be by deed, and the lessee must execute a counterpart; and every such lease must contain a condition for re-entry on nonpayment of the rent for a period not less than twenty-eight days after it becomes due. The leases

may be required to contain such special covenants as the court shall deem expedient (sec. 3). The court may itself determine the form of particular leases, or vest the power in trustees (sec. 7). Tenants for life may grant leases for twenty-one years, provided the best rent be reserved that can reasonably be obtained without fine or other benefit in the nature of a fine (sec. 32), which are to be valid against the persons mentioned in sec. 33.

XIII. Production of papers not directed.-Production of documents will not be ordered where-1, they are privileged communications; 2, where they are the defendant's title deeds, and relate exclusively to his title, and not to the plaintiff's case; 3, where the defendant has not the sole and uncontrolled right over the documents, but some other person, not a party to the suit, has an interest therein (Taylor v. Rundell, Cr. and Ph. 111; Wroughton v. Barclay, 11 Jur. 274; Bolton v. Liverpool, 1 My. and Ke. 88; Combe v. London, 6 Jur. 571; Peile v. Stoddart, 13 Jur. 225, 373; Flight v. Robinson, 13 L. J. Ch. 425).

XIV. Trustees paying trust moneys into court.-On paying trust money, or transferring trust stock into court, the trustees make and file an affidavit stating the facts, and after the payment or transfer, they give notice to the parties mentioned in the affidavit as being the persons interested in, or entitled to, the trust money or stock (2 L. C. 161, 300, 373; 3 Id. 184, 286, 317; 12 Jur. pt. 2, pp. 241, 249, 345; Key Exam. Equity, 68, 69).

XV. Getting trust moneys, &c., out of court.-In order to obtain payment of trust moneys which have been paid into court, the cestui que trusts, if the amount be under £300, may apply at chambers, but if above that amount, they must apply to the court by petition. In either case the trustees must be served with notice of the application. No bill can, without leave, be filed, in respect of the fund paid in, or transferred (Goode v. West, 15 Jur. 1025; 14 Jur. 52; Key Equity, 69; Ord. 12th Nov., 1856, pl. 3; 3 L. C. 170).

BANKRUPTCY (ante, p. 311).

I. Traders. The persons liable to the bankrupt laws are traders, and the Bankruptcy Consolidation Act, 1849, contains an enumeration of several trades (see 1 L. C. 140). In addition, the statute contains a general description of a trader, as a person "seeking his living by buying and selling," or 66 using the trade of merchandise, by way of bargaining, exchange, bartering, commission, consignment, or otherwise, in gross or by retail" (Key, Bankr. 12; 1 L. C. 140-145; Henley's Bankr. 3, 3rd edit.; Exp. Lavender, 4 D. and C. 484).

II. Adjudication, how obtained.-An adjudication

may be obtained by the trader himself, if he can show £150 assets, or by a creditor to the amount of £50 (1 L. C. 262, 284-289; First Book, 217). In either case a petition for adjudication is presented, duly verified, to the proper court, and on due proof, in the case of a creditor petitioning, of his debt, the trading, and an act of bankruptcy, an adjudication is made (12 & 13 Vic. c. 106, s. 101).

III. Proofs to obtain adjudication.—In the case of a creditor petitioning for adjudication, there must be proof of the debt of the petitioning creditor, or other creditor prosecuting the petition, of the trading, and of the act of bankruptcy (Key, Bankr. 47). Witnesses may be summoned to give evidence (12 & 13 Vic. c. 106, s. 101). The petitioning creditor's debt is investigated, and all securities exhibited, together with a debtor and creditor account (Rule 11 of 19th Oct., 1852.

IV. Parties to prove the facts.-In general the petitioning creditor attends and proves his debt, and the trading and act of bankruptcy are proved by witnesses; but by Rule 12 of 19th Oct., 1852, the personal attendance of the petitioning creditor, and of the witness or witnesses, to prove the trading and act of bankruptcy, upon the opening of the petition for adjudication, may be dispensed with, on special cause proved to the satisfaction of the court.

V. Proof Creditor holding security.-Where a creditor holds a security given by the bankrupt alone for his debt, he must, before proving, give up such security (Henley's Bankr. 104 et seq., 3rd edit.; Key, Bankr. 104). If, however, the creditor hold as a security for his debt a mortgage or other security of property not belonging to the bankrupt, and not given by him, the creditor may prove his debt without affecting such security. The reason is, that having taken the precaution of requiring the security of a third person, he is not to be deprived of it by a petition against his debtor, and particularly as the creditors would not be benefited by his relinquishing his security.

VI. Stamps and fees.-This is a curious question for an articled clerk to be required to answer: the best memory will certainly have the best chance. There is payable, on every petition for adjudication or arrangement, &c., the sum of £10; on every declaration of insolvency, trader-debtor summons, and admission or deposition by the trader-debtor, 2s. 6d.; on every bond with sureties, 5s.; on every search (except for a sitting or meeting), 1s.; on every allocatur for costs, a certain per centage; on office copies, 1d. per folio of ninety words. The official assignee has to pay a certain per centage to the credit of the account intituled "The Chief Registrar's Account" (1 Law Chron. 138, 139).

VII. Affidavits sworn abroad.—Affidavits made in

Scotland or Ireland should be sworn before a commissioner for taking affidavits, or before a magistrate of the county, city, town, or place where any such affidavit is taken, or elsewhere before a magistrate, and attested by a notary, or before a British minister, consul, or vice-consul (12 & 13 Vic. c. 106, s. 243; 1 L. C. 000; Exp. Bird, 22 L. J. Bankr. 4). VIII. Proof-Partners.-Debts owing by one partner alone may be proved under a petition for adjudication against two partners, but only in the first instance, as against the separate estate of the debtor, the rule being, that where partners become bankrupt, and there is separate as well as joint property, and also joint and separate creditors, distinct accounts are kept of the joint estates, and also of the separate estates; and what is found to belong to the separate estates, is applied, in the first place, in or towards satisfaction of the debts of the respective separate creditors; and in case there be any overplus of the joint estate, after all the joint creditors are paid and satisfied their whole demands, the shares of the bankrupts in such overplus are to be applied in or towards satisfaction of their separate creditors; in case there is any overplus of the separate estates, after all the separate creditors shall be paid and satisfied their whole demands, the overplus of such separate estates is to be carried to the account of the joint estate, and to be applied in or towards satisfaction of the joint debts (Mont. and Ayrt. Bankr. Pract. 318; Exp. Green, 1 Deac. and Chitty, 382; Exp. Bolton, Buck, 7; Henley's Bankr. 174, 3rd edit.). A separate creditor is not entitled to interest out of the surplus till the joint creditors are paid (Exp. Minchin, 2 Glyn and Jam. 287; Archb. Bankr. 411, 8th edit.).

IX. & X. Grant of certificate.-Before a bankrupt applies for his certificate he must have passed his last examination (12 & 13 Vic. c. 106, s. 198). The commissioner acting in the prosecution of the bankruptcy grants the certificate of conformity, but any creditor may be heard to oppose same on giving three clear days' notice of his intention to oppose. In order to obtain a certificate the court (commissioner) appoints a public sitting for the allowance thereof; an advertisement thereof is then inserted in the London Gazette, and notice thereof given to the solicitor of the assignees, twenty-one days before the sitting. The assignees, or a creditor having given due notice, are then heard to oppose, and the court either grants, or refuses to grant, or suspends the certificate. The certificate, if granted, may be (1) one of a first class, which is granted where the bankruptcy has arisen from unavoidable losses and misfortunes, or (2) one of a second class— i. e., where the bankruptcy has not wholly arisen from unavoidable losses and misfortunes, or (3) the

certificate may be of a third class, which is where the bankruptcy has not arisen [in any part] from unavoidable losses or misfortunes (see 12 & 13 Vic. c. 106, s. 199, and Schedule Z.).

XI. Arrangements.-A trader may obtain a discharge from his debts without bankruptcy, by petitioning for protection, or, as it is called, for arrangement under the provisions of the Bankruptcy Consolidation Act, or by arrangement by deed under the same act. In each case a large proportion of the creditors must assent, upon which the minority will be bound (1 L. C. p. 77).

XII. Bankruptcy statutes.—Another test of a good memory. The principal statutes relating to bankruptcy during the last fifty years are the 6 Geo. 4, c. 16; 1 & 2 Will. 4, c. 56; 3 & 4 Will. 4, c. 47; 5 & 6 Will. 4, c. 29; 1 & 2 Vic. c. 110; 2 Vic. c. 11; 2 & 3 Vict. c. 29; 5 & 6 Vic. c. 122; 7 & 8 Vic. c. 96; 8 & 9 Vic. c. 102; 8 & 9 Vic. cc. 102 and 127. The several joint-stock acts relating to bankruptcy: 10 & 11 Vic. c. 102; 11 & 12 Vic. c. 86; 14 & 15 Vic. c. 52; 15 & 16 Vic. c. 77; 16 & 17 Vic. c. 81. The short particulars of these acts may be seen 1 L. C. 6-8.

XIII. Statute for private arrangements. This is another question for very good memories. The arrangements which take place under the control of the court are by virtue of the Bankruptcy Consolidation Act, 1849, ss. 211-223, and those by deed are by the same statute, secs. 224-229.

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XIV. Joint-stock companies. In order to obtain an adjudication of bankruptcy against a joint-stock company, a creditor not having a judgment, &c., must (7 & 8 Vic. c. 111, s. 7) file an affidavit of debt, of a proper amount, in a court of law, and sue out a writ of summons, which must be served on the chief clerk, &c., of the company. If the company do not, within one calendar month, pay, &c., such debt, or make it appear to a judge that it is their intention to defend the action upon the merits, and enter an appearance accordingly, the company will be deemed to have committed an act of bankruptcy (see Exp. Gillett, 28 Law Tim. Rep. 68, 53; 3 Law Chron. 187, 193, 254, 267, 333). By ss. 5 and 6, creditors having a judgment or decree, &c., may serve a fourteen days' notice requiring payment. So by s. 4, the company itself may resolve that it is unable to meet its engagements, and that shall be an act of bankruptcy. Now, however, the affairs of joint-stock companies are usually wound up under 11 & 12 Vic. c. 45; 12 & 13 Vic. c. 108; 19 & 20 Vic. c. 47; and 20 & 21 Vic. c. 14.

XV. Members of Parliament.-The consequences to a member of Parliament from his being found bankrupt are, that he is incapable of sitting or voting for twelve months, unless the petition for adjudica

tion be within that time superseded, or the debts paid in full; if this be not done after twelve months, the commissioners are to certify to the speaker, whereon the seat is vacated, and a new writ is to issue (52 Ger, c. 144, ss. 1 and 2; 2 Steph. Com. 340, 2nd edit.; Mont. and Ayrt. Bankr. Pr. 116, 716, 2nd edit.). During the time of his privilege he is not liable to be arrested or imprisoned, except in cases made felony or misdemeanor. This is by sec. 66 of the Consolidation Act, which enacts that if any trader, subject to the bankrupt laws, having privilege of Parliament, shall commit any act of bankruptcy, he may be dealt with under that act in like manner as any other trader, but he is not to be subject to be arrested or imprisoned during the time of such privilege, except in cases made felonies or misdemeanors by that act. This liability to arrest, in cases of misdemeanor, is new: the 6 Geo. 4, c. 16 (now repealed), only subjected a member of Parliament trader to imprisonment in cases of felonies.

CRIMINAL LAW (ante, p. 311).

I. Embezzlement and larceny.-Embezzlement is where one in a public trust, or as a servant, receives and fraudulently appropriates money or goods received for public purposes or for his master, without the same having been in the possession of the party entitled thereto (Dickinson's Quart. Sess. 261, 355, 5th edit.). Embezzlements by persons employed by the party whom they defraud are distinguished from larceny properly so called (see definition, 14 Jur. Dig. 54), as being committed in respect of property which is not at the time in the actual or legal possession of the owner (Reg. v. Butler, 2 Car. and Kirw. 340; Reg. v. Aston, 2 Id. 413; Reg. v. Hawkins, 14 Jur. 513).

II. Conspiracy, effecting object.—An indictment for conspiracy may be supported, although the unlawful object for which it was entered into be not effected; for the offence is deemed to consist rather in the guilty combination or agreement, than in the act by which it is carried into effect (9 Co. Rep. 56 b; Rex v. Best, Salkeld, 174; 4 Steph. Com. 294, 2nd edit.). It is, indeed, usual to set out the overt acts, i. e., those acts which may have been done by any one or more of the conspirators, in order to effect the common purposes of the conspiracy. But this is not essentially necessary (Rex v. Gill, 2 Barn. and Ald. 204; Rex v. Seward, 1 Ad. and Ell. 706; 5 Qu. Ben. Rep. 49; Archb. Crim. Plead. and Evid. 675, 10th edit.).

III. Attempts to commit felony.-An attempt to commit a felony, if done under such circumstances, that, had the attempt succeeded, the defendant might have been convicted of the felony, is a mis

demeanour (9 Geo. 4, c. 31, s. 25; 14 & 15 Vic. c. 100, s. 9; Key Exam. Crim. Law. 46).

IV. Simony.-Simony is the corrupt presentation. of any one to an ecclesiastical benefice, for money, gift, or reward (Cro. Eliz. 790). It was by the canon law a very grievous crime, but whether it was an offence punishable by the common law has been doubted (2 Bl. Com. 278; 5 Taunt. 745; 3 Steph. Com. 70, 2nd edit.), and although the clerk who committed simony was always subject to ecclesiastical censures, these were not efficacious enough to repel the notorious practice of the thing; particularly as they did not affect the simoniacal patron; so that several acts of Parliament have made the offence operate as a forfeiture of the right of presentation, which thereby is vested pro hâc vice in the crown (3 Steph. Com. 120, 1st edit.; p, 70, 2nd edit.; 1 L. C. 178). By 31 Eliz. c. 6, if any patron, for money, or any other corrupt consideration or promise, directly or indirectly given, shall present, admit, institute, induct, instal, or collate, any person to an ecclesiastical benefice or dignity, both the giver and the taker shall forfeit two years' value of the benefice or dignity; one moiety to the King, and the other to any one who will sue for the same and the presentation of the clerk shall be void. A bond may be taken to secure the resignation of a living in favour of any one person whomsoever, and in favour of any two persons, being the near relations of the patron (9 Geo. 4, c. 94; 3 Steph. Com. 121, 1st edit.; p. 73, 2nd edit; 1 L. C. 178.

V. Arrest by constable on suspicion.-A constable is justified in arresting a person reasonably suspected of a felony, though not if of a mere misdemeanor, except it be in the night time, under the 2 & 3 Vic. c. 47, ss. 63-65 (Bowditch v. Balkin, 19 Law Journ. Ex. 337).

VI. Objecting to validity of indictment.—Where an indictment is so defective that no judgment can be given upon it, even should the defendant be convicted, it will be quashed. The application is made to the court where the bill is found, except in cases of indictments at the sessions, or in other inferior courts, in which cases the application is made to the Court of Queen's Bench, the record being previously removed there by certiorari. The more usual course is to bring a writ of error (Archb. Crim. pl. 63-65, 8th edit.; 7 Term Rep. 373; 8 & 9 Vic. c. 68; 9 & 10 Vic. c. 24; 16 & 17 Vic. c. 32; 17 Jur. 1097; Key, Exam. Crim. L. 115, 116).

VII. Offences by bankrupt.—By the Bankruptcy Consolidation Act, 1849 (the 12 & 13 Vic. c. 106), 8. 251, if a bankrupt wilfully fail to attend to pass his last examination on the day appointed, after notice to him and in the London Gazette, he will be guilty of a felony, and be liable to transportation for

life, or for such term, not less than seven years, as the court before which he shall be convicted shall adjudge, or will be liable to imprisonment, with or without hard labour, for any term not exceeding seven years (see as to penal servitude, ante, p. 138). By s. 252 of the Bankruptcy Consolidation Act, "if any bankrupt shall, after an act of bankruptcy committed, or in contemplation of bankruptcy, or with intent to defeat the object of the law relating to bankrupts, destroy, alter, mutilate or falsify any of his books, papers, writings, or securities, or make or be privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his creditors, every such bankrupt shall be deemed guilty of a misdemeanor, and on conviction be liable to imprisonment for any term not.exceeding three years, with or without hard labour." By sec. 253, if any bankrupt shall within three months next preceding the filing of the petition for adjudication, under the false colour and pretence of carrying on business and dealing in the ordinary course of trade, obtain on credit from any other person any goods or chattels with intent to defraud the owner thereof, or if within such time or with such intent he knowingly remove, conceal, or dispose of any goods so obtained, every such bankrupt is guilty of a misdemeanor, and may be imprisoned for not more than two years, with or without hard labour.

VIII. Appeals from justices.-By the 20 & 21 Vic. c. 43 (ante, pp. 142, 144), it is provided (s. 2), that after the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the superior courts of law, to be named by the party applying; and such party, who may be called “the appellant,' shall, within three days after receiving such case, transmit the same to the court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, who may be called "the respondent." By s. 3, "the appellant, at the time of making such application, and before a case shall be stated and delivered to him by the justice or justices, shall in every instance enter into a recognisance before such justice or justices, or any one or more of them, or any other justice exercising the same

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jurisdiction with or without surety or sureties, and in such sum as to the said justice or justices shall seem meet, conditioned to prosecute without delay such appeal, and to submit to the judgment of the superior court, and pay such costs as may be awarded by the same; and thereupon the appellant, if then in custody, shall be liberated upon the recognisance being further conditioned for his appearance before the same justice or justices, or if that be impracticable, before some other justice or justices exercising the same jurisdiction who shall be then sitting, within ten days after the judgment of the superior court shall have been given, to abide such judgment, unless the determination appealed against be reversed."

3. 4.

IX. Quarter sessions—Jurisdiction.— The quarter sessions had jurisdiction to try all felonies and all misdemeanors, except perjury and forgery, at the common law; but in capital felonies it was not usual to proceed at the sessions. And now, by the 5 & 6 Vic. c. 38, s. 31, neither the justices of the peace acting in and for any county, riding, &c., nor the recorder of any borough, shall at any session of the peace, or at any adjournment thereof, try any person or persons for any treason, murder, or capital felony, or for any felony, which, when committed by a person not previously convicted of felony, is punishable by transportation beyond the seas for life, or for any of the following offences:-1. Misprision of treason. 2. Offences against the Queen's title, &c., or against either House of Parliament. Offences subject to the penalties of præmunire. Blasphemy, and offences against religion. 5. Administering or taking unlawful oaths. 6. Perjury, or subornation of perjury. 7. Making, or suborning any other person to make, a false oath, affirmation, or declaration, punishable as perjury, or as a misdemeanor. 8. Forgery. 9. Unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, or fern. 10. Bigamy, and offences against the laws relating to marriage. 11. Abduction of women and girls. 12. Endeavouring to conceal the birth of a child. Offences against any provision of the laws relating to bankrupts and insolvents. 14. Composing, printing, or publishing blasphemous, seditious, or defamatory libels. 15. Bribery. 16. Unlawful combinations and conspiracies, except such over which such justice or recorder respectively have or has jurisdiction to try, when committed by one person. 17. Stealing, or fraudently taking, or injuring, or destroying records or documents belonging to any court of law or equity, or relating to any proceeding therein. 18. Stealing, or fraudulently destroying or concealing, any wills or testamentary


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