order calling on John Norman to show cause why he should not be committed to prison for contempt in disobeying an order of the court. The case having been adjourned to the present court day. T. Smallwood now supported the application. It appeared that John Norman, who had petitioned the court as an insolvent debtor in January, 1850, obtained a final conditional order of protection, the condition being that he should pay to the clerk of the court 257. per annum, by quarterly payments, to be applied in discharge of his debts; he duly paid four in stalments, the last payment being made on the 5th January, 1851; since that period he had made no payments, and there was now due under the order a sum of 751. Smallwood now contended that the neglect of the insolvent to make these payments, as required by the order, was an act of disobedience and contempt which was punishable by imprisonment. The question was whether the court had jurisdiction to commit for disobedience of its orders or not. This however was incident to every Court of Record; there could be no doubt that the County Court was a Court of Record, so far as the proper and legitimate business for which it was originally intended was concerned. The question then arose, was it a Court of Record in insolvency matters which were now transferred to its jurisdiction? By the stat. 5 & 6 Viet. c. 116, and the 7 & 8 Vict. c. 96, the jurisdict on in protection insolvency cases, was vested in the Courts of Bankruptcy. By the stat. 10 & 11 Vict. c. 102, sect. 4, the jurisdiction was transferred to the County Courts, the 6th section of the last-mentioned statute providing that every County Court shall have and exercise the like power and authority in all respects, as the commissioners of the Courts of Bankruptcy have heretofore exercised, and shall each singly form a court for every purpose under those acts. It was therefore clear that whatever power the Court of Bankruptcy possessed, was by the statute vested in the County Courts. By the 66th section of the 5 & 6 Vict. c. 122, the Courts of Bankruptcy were made Courts of Record, and every power they possessed was, by the stat, 10 & 11 Vict c. 102, vested in the County Courts, and therefore as one of the incidents appurtenant to the jurisdiction in insolvency cases, those courts became, for the purpose of such cases, Courts of Record; that being so it only remained to consider whether disobedience of the order of protection was a contempt of court. Smallwood insisted that it was, and pressed His Honour to issue an attachment against the insolvent. Powell for the insolvent, was stopped by the court. HIS HONOUR in delivering judgment said, he concurred in the argument adduced by Smallwood that the court was a Court of Record, and had power to punish contempt by disobedience of its orders, by imprisonment; but the question in this case was, had the insolvent been guilty of such an act of disobedience as amounted to contempt; he (the Judge) thought that was doubtful. The final order was only conditional, and if the insolvent neglected to comply with the terms upon which it was granted, it became null and void. The insolvent could not plead it in law to any action which might be brought against him, nor would he be protected from arrest, that was the penalty he incurred by disobeying the order of the court. It was, he thought, doubtful whether such a disobedience was a contempt, the point had not been decided in any of the Superior Courts, and the bankruptcy and insolvency commissioners were divided in opinion upon the question. Under those circumstances, and entertaining the doubt he had upon his mind, he should decline to commit the insolvent in the present case. The rule was accordingly refused. On the application of Powell, the court granted the defendant the costs of the motion. DRAYTON, February 13, 1854. (Before UVEDALE CORBETT, Esq.) BRADBURY v. COLLIER. Practice Costs. Claim for work, 51. 5s. 4d. No notice of set-off being given, but the plaintiff's attorney consenting to waive notice, the plaintiff's advocate's fee allowed, though the set-off reduced the amount recovered to 41. 78. Baker for plaintiff. Grimley for defendant. STAFFORDSHIRE. HANLEY, January 26, 1854. Action fur damage done by fowls-Evidence. Challinor appeared for the plaintiff, and J. A. Stevenson for the defendant. The plaintiff is a farmer, and brought the action against the defendant, another farmer, for 6. for damage done by defendant's fowls. Challinor stated that the object was not to procure vindictive damages, but to put a stop to the injuries complained of. John Doxey deposed that he was in the employ of the plaintiff. In November a field of wheat was sowed, Before the 23rd of November, saw the defendant's fowls-five hens and a cock-" scratting" about the place, picking the wheat. Drove them off several times and complained to Rhodes' daughter. On the 23rd November gave Rhodes' daughter a piece of paper from Mr. Wedgwood. Went again in December, and the daughter said she would keep the fowls off. Saw them on the 4th of December. Went with another paper after that. Cross-examined by Mr. Stevenson:-Other people keep fowls. Wheat was ploughed and harrowed in. Did not know how deep the fowls scratched. Samuel Day, another servant of Mr. Wedgwood, had seen the fowls come from Mr. Rhodes' to the field, and scratch many times. Three hours at a time. Let them remain to see if anybody would fetch them. Cross-examined: --Saw the hens pick up wheat on the footpath through the field. Did not see any rooks in the field. The plaintiff said he had seen the fowls in the field. Calculated the damage done from the number of fowls, and the time they were there. Thought the fowls would eat half a bushel of wheat, which would produce 51. worth of corn. Each fowl would, at the lowest, eat a pound of wheat a day. Some would eat their own weight in a day. Sent two notices to Rhodes, of which those produced were copies. The notices were then put in. Cross-examined:-The fowls were in about three weeks. His calculation was based on that. Had not seen any other fowls there. Reckoned his crop at forty Never heard of any one near Wheatley Moor having twenty bushels an acre, but they did not farm as he did. Did not know whether the wheat was up. bushels an acre. Stevenson asked whether His Honour thought there was any case? His HONOUR said that it was not proved that there was any damage in the case. Mr. Wedgwood had been too premature in bringing this action. There was no proof that the crop was deficient. Every one knew fowls would eat snails and worms, and they might have done more good than harm. There was, however, another point in the case which would have to be decided at some time. That was, how fowls were to be fenced against. In this case there was not any evidence at all. It was not told him how the fowls got into the field, or what fences there were His Honour commented on the way in which plaintiffs got up cases for the County Court. It might be a great compliment to the judge of a County Court to suppose that he was able to know everything without being told, or that the way was to get up a case, and throw it at the judge's head. There was no evidence to support this case, and it must be dismissed. Stevenson applied for defendant's costs, which His Honour granted. Stevenson mentioned a case in which hunters had done good to corn. His HONOUR remarked that hunters were not cocks and hens. Subsequently His Honour said neighbours ought not to quarrel about fowls. The way was to warn them off, and if they did not keep them off, to shoot them. If you find them there again said His Honour, "have a shy at them." His Honour added he gave that advice, as pigeons might be shot if they were not picked up and made a profit of, and as neither pigeons nor hens could be fenced against, he did not see any difference in that respect. and without any charge having been made by any one against the plaintiff, took the plaintiff into custody upon their own bare and unfounded suspicion, not for the purpose of taking him before a magistrate, but for the purpose of creating evidence against him by putting questions to the plaintiff as to where he was, and what he was doing at a particular time; and further, upon such bare suspicion, proceeding to search the house and person of the plaintiff. The defendants had information of a house robbery having been committed, but the only ground for their suspecting the plaintiff, was, that some one had supposed he had heard the plaintiff's voice exclaim to some one else, "d-n it mind what you are about," at the time that footsteps were heard of men running near the house robbed. The plaintiff lived immediately near the spot, and was in fact standing at the end of an entry smoking his pipe there. This raises, no doubt, a most important question, and one which has given rise to much subtlety of decision, and the cases have gone, no doubt, very far indeed in protection of official persons-perhaps the most intelligible of these decisions is the one of Booth v. Clive (20 L. J. 151, C. P.), in which Cresswell, J. says: "The true principle by which we must be guided is this-did the defendant proceed in the cause honestly, believing that his duty as judge called upon him to do so?" Let us apply the same question here. Did the defendants, as constables, arrest the plaintiff honestly, believing that their duty as constables called upon them so to do? There is a wide distinction, which has always been recognised, between what is done under mere colour of official authority, and what is done, though mistakenly, by virtue of such authority; can any constable be reasonably supposed to act under the bona fide supposition of duty, who apprehends a man without warrant or charge for the purpose of doing what the law of this land repudiates, and what no magistrate, judge, or higher functionary, would be justified in doing, viz.: for the purpose of eliciting evidence from the party against himself; what department of a constable's duty can reasonably be supposed as leading the constable to the belief that he is doing any thing but abusing his authority in so acting in his official character; it is not pretended that they did in fact act otherwise than illegally; from what then is it to be gathered that they bona fide supposed they acted rightly. Constables are constantly warned by judges that so acting is not within the compass of their duty, and the law is explicit as to what their legal course is as to apprehensions for felony. I must here repeat what I said in a case somewhat similar, that I cannot discover any circumstance in this case which could reasonably lead the defendant to suppose he was acting in discharge of his duty. A policeman has no right to do an act directly contrary to his duty and then claim the right of being considered as bona fide supposing it his duty. It was urged that the question of bona fides must not be tested by the reasonableness of the supposition, but by the mere testimony of the party himself; but I think that would be an extremely dangerous doctrine to hold; it is true a man may bona fide think he is acting legally when he has no reasonable grounds for so thinking; but if such his bona fides is to be judged of by my mind, he must present to me some grounds which to my mind must appear reasonable for his entertaining such belief; it is not enough for him to say I bona fide thought I was keeping the peace by knocking a man down who had committed no offence, or by seizing a man by the throat because he had red whiskers; he must give to me some reasonable grounds for his act before I can judge of its bona fides. I see no ground for granting this motion, for I see no reason why upon any future trial I should come to any different conclusion. Motion dismissed with costs. YORKSHIRE. BRADFORD, January 10, 1854. Dispute between Publisher and Author. Articles contributed voluntarily to a periodical, cannot be charged for because they have been inserted, unless there had been an employment of the contributor by the publisher. In an action for money lent and work done (to which was joined a claim in trover for a book) a set-off for such contributions was not allowed, plaintiff being allowed his full claim. This was a case for the recovery of 11. 11s. for money lent and goods supplied. The plaintiff was Mr. Squire Auty, printer, and the defendant, Mr. David M'Burnie, a person well known as a contributor to cheap periodical literature. The items which made up the claim arose in consequence of the plaintiff having lent 1. to the defendant, and done him printing to the value of 6s., and lent him a book which he had not returned. Some months ago the defendant, who had for some time frequented the plaintiff's printing office, borrowed a sovereign of plaintiff, stating that a relative was dead in Scotland, and he wanted to go thither. The sovereign was lent, the defendant promising to repay it in the course of the following week. Several weeks elapsed, however, and the plaintiff saw no more manded for having contracted debts without reason- them. The insolvent had been a tavern-keeper, and was opposed by a creditor, a wine merchant, in person. Mr. Tovey opposed on the ground of certain omissions in his petition; and, being unable to amend, the petiThere were various cases to tion must be dismissed. this effect in Macrae's Practice, p. 71. Sargood, for the insolvent, submitted that the sole object of the description was to identify the insolvent; and if the description was of such a character as to inform the world who the person was before the court, of the defendant, and then, after going to his house from the balance-sheet; and also of misdescription; the object of the Act was satisfied. It was not pre but principally for having contracted debts without sition. tended that any one had been misled; the description was, therefore, sufficient. Mr. Commissioner PHILLIPS thought the man should the Act of Parliament. The case seemed to be on all have described himself in his petition as directed by fours with that of Russell, cited at the bar. He should, therefore, dismiss the petition. Petition dismissed. PROTECTION CASE. It appeared from his statements that he entered upon the Clifton-Rock Tavern, Clifton-Hill, with a capital of 2s. 9d.; he borrowed 2201. of a person to whom he gave a judgment for 2301.; and the business not proving remunerative, the judgment was put in force, and swept off all the property, leaving nothing Costs of insolvent's attorney-Allowance for support of for the general creditors who had supplied the house with goods. several times, he saw the defendant. He alleged that denied the claim, stated that he had never employed the defendant; it was only after the defendant's repeated importunity that he had accepted a contribution from him, because he had bundles of manu scripts (and he produced a bundle in court), contributed gratuitously from writers in various parts of England, for which he could not possibly find room in his periodical. A witness (Mr. Waddington, news agent,) was also called to state that the defendant had recently told him, that if the plaintiff had not threatened to commence an action, he should never have said anything about a set-off. The defendant alleged that Mr. Justice Talfourd had held that if an article was inserted in a periodical, though nothing was said as to price or payment, the writer was clearly entitled to payment. His Honour said that every man was entitled to payment for his labour, but it did not appear in this case that there had been any employment of the defendant, nor did he set up a claim till this action was threatened. He gave a verdict for the plaintiff, who was ordered to pay 4s. per month. REPORTS OF INSOLVENCY CASES. Friday, Dec. 30. Re ROBERT WILLIAM MARSHALL. Dismissal of petition by County Court Judge. Effect of in vacating vesting order made by the Court in London. Quære: When a petition has been filed, and a vesting order made by this Court under the 1 & 2 Vict. c. 110, is the vesting order vacated by the dismissal of the petition in the County Court? Cooke moved for an order declaring the vesting order in this insolvency, dated April 1850, null and void, the petition having been dismissed in the County Court, April 1850. Mr. Commissioner MURPHY.-Is this motion necessary? Cooke.-I should have thought it unnecessary, the petition having been dismissed; but I understand the Chief Commissioner Law has expressed some doubt about it, and this motion is to make assurance doubly sure. Motion granted. October, 1853. An insolvent, who starts in business with 2s. 9d. only as Re WARNER. petitioner. Held, that the insolvent's attorney's bill of costs may be paid out of money in court belonging to the estate, under the proviso in 5 & 6 Vict. c. 116, s. 4, authorising an allowance for the support of the petitioner out of his estate and effects. Cooke applied for an allowance for the support of the insolvent under the 5 & 6 Vict. c. 116, s. 4. There were funds in court, and the insolvent's attorney had in the hope of being enabled to carry it on profitably, not been paid his bill of costs. His HONOUR.-The benefit! He had only got His HONOUR.-I must do justice. Mr. Tovey is as PROTECTION CASE. Monday, Jan. 2. (Before Mr. Commissioner PHILLIPS.) This insolvent had described himself in his petition an Duncan, for the opposing creditor, submitted that This insolvent, wanting money, borrowed 401. of a friend, and deposited an agreement for a lease with her as security for repayment. The creditor pressing for her money, insolvent sold the lease for 1007. and paid her, and also his rent, rates, and taxes. Dowse submitted that the allegation in the petition, that he had not parted with his property within three months of the date of the petition, was untrue. On the 22nd Nov. insolvent disposed of his lease for 100%., which he distributed on the 26th Nov.; and, four days later, he came to that court entirely denuded of his property. As this did not come within the exceptions in the petition, the allegation that he had not parted with property within three months of the date of the petition was untrue; and, according to the precedents in that court, the petition must be dismissed. Cooke, for insolvent, said that, although numerous petitions had been dismissed by the Chief Commissioner Reynolds and Mr. Commissioner Phillips (and the late Mr. Commissioner Harris), yet the present Chief Commissioner Law never dismissed petitions on this ground if the property had been fairly disposed of. whether the property was parted with fairly or disHe submitted that they should go into facts, to see honestly, and not dismiss it on mere technical grounds. Mr. Commissioner MURPHY said it appeared to him that this property was parted with with a view to this petition. He came to that conclusion upon the facts before him, as admitted by the insolvent. He held that to be fraud, and on that ground alone he would dismiss the petition. Petition dismissed. PROTECTION CASE. Monday, Nov. 28. (Before Mr. Commissioner PHILLIPS.) Re GEORGE STUBBS. Trader—Fishing-smack-owner. Held, that a fisherman owning fishing-smacks, which he uses for fishing purposes only, is not a trader as a "ship-owner," within the meaning of the bankrupt creditor, and upon the very same day consigned them laws. This insolvent had described himself as of the port of Barking, in Essex, "fisherman and fishing-smack owner." The insolvent owned two smacks, the Defence and Dispatch, which he had employed in fishing purposes only. They were however described as ships or vessels in the certificate of registry granted under the Act for the registering of British vessels in the deeds of mortgage upon them respectively; and, amongst the fishermen of Barking, smacks were spoken of in popular language as ships; and the persons who built smacks called themselves ship-builders. Macrae, for the opposing creditors, submitted that a smack-owner was a ship-owner, and, as such, a trader, within the meaning of the bankrupt laws; and, owing debts above 300%., his petition must be dismissed. It would doubtless be contended that the insolvent was simply a fisherman; but, if so, he ought simply to have described himself as such. He had gone further, and described himself as a fishingsmack owner, which he submitted was a substantive description. The evidence showed that these smacks actual custody or at large on recognisance of sureties; provided that notice of such proceeding on the part of the prisoner shall be given to such detaining creditor in such cases and in such manner as the (Before Mr. Commissioner MURPHY.) PROTECTION CASE. to the pawnbroker. The excuse was, that they were Tuesday, Dec. 6. Re JEFFRIES. (Before Mr. Commissioner MURPHY.) Discharge from custody before hearing by detaining creditor. a prison up to the day of hearing without any intermission, except on bail, cannot be discharged by the court. This insolvent, whose case was in the paper, ap were ships, and if they were so, the owner was a ship- An insolvent, not in actual custody within the walls of owners. Cooke, for insolvent, submitted that the word "ship" was a generic term, and used as such; but that a ship-owner was only a trader when his vessels were employed in a business subject to the bankrupt laws; but when employed in any other way, as a yacht for the purposes of pleasure, or employed in a business not subject to the bankrupt laws, as for the purposes of fishing, the owner would not be a 66 ship-owner" within the meaning of the bankrupt laws. Mr. Commissioner PHILLIPS thought that the purchase and use of smacks by a fisherman to be employed in his calling as a fisherman, did not make a fisherman a trader any more than the purchase of articles or stock by a farmer for the purposes of his farm constituted a trading. In the case of the fisherman, the posesssion of the vessels was merely ancillary to his principal employment or pursuit as a fisherman, and did not therefore constitute a separate or independent trading. Objection overruled. Contracting debts without reasonable expectations of payment-Debts for goods in trade. When an insolvent is opposed for contracting a debt without reasonable expectations of payment, and it appears that the debt was for goods in the way of his trade, the Court holds that, although he may be in embarrassed circumstances at the time, he has a reasonable expectation of payment from the sale of the goods; but, Held, that this presumption only applies when it appears that an insolvent has been carrying on a fair trading; and if it turns out that he has disposed of the goods in an improper manner, this presumption will not apply. This insolvent appeared for his hearing, and was opposed by counsel upon the ground that he had contracted a debt with his client without having any reasonable or probable expectation of paying at the time he contracted it. The debt was for goods supplied by the opposing creditor to the insolvent in the way of his trade. At the close of the case, Mr. Commissioner PHILLIPS said it appeared that the insolvent had obtained goods from the opposing under the following circumstances: Reed, his counsel, stated that the detaining creditor, to prevent his being discharged by the court, had sent a discharge to the prison on the Saturday evening previous, at half-past seven o'clock. The question was whether, under the circumstances, the court could pronounce an adjudication. He understood that, where an insolvent had been discharged no longer than twenty-four hours came up in custody, the proceed ings would be sustained, and the prayer of the petitioner granted. The hardship and the disappointment to the insolvent was very great, if the only effect of the proceedings was to denude him of his property without protecting him in respect of his debts. Mr. Commissioner MURPHY was informed by the registrar (Clark) that the rule as to twenty-four hours had always been contingent upon the insolvent remaining and coming up in actual custody, or being out on bail. He feared he had no power to interfere. The Act (1 & 2 Vict. c. 110, s. 38) applied only to cases where the insolvent was a prisoner in actual custody or out on bail with the sanction of the court. It was clear the man must be in actual custody during all the proceedings, or be should be inclined to strain a point. The registrar stated that, when a man came to the court in charge of the officer of the gaol, having only received his discharge the previous evening, the Commissioner would strain a point sometimes in his favour, but that was not a case like the present; and, as the Act clearly contemplated a being in custody, the being without the walls of the prison except by leave of the court was fatal. He could not, therefore, discharge the insolvent. An application was made to the court to appoint an assignee; but, the party proposed not being in the opinion of the learned Commissioner a proper person, he refused the appointment, intimating, however, that he had perfect power to make the appointment. He would leave the property in the hands of the provisional assignee. [Note. To prevent the spiteful exercise of the detaining creditor's power of discharge before hearing, of which this case is an illustration, the Chief Commissioner Law proposed, in his supplemental paper to the report of the Bankruptcy and Insolvency Committe of 1840, that the Act should be amended by the addition of the following clause:-"That if, at any time after the making of the order vesting the estate and effects of a prisoner, an order of discharge shall be given by a creditor in any suit in which the debtor shall be then detained, the same shall be void and of no effect, if such prisoner shall, on such discharge being notified to him, forthwith signify to the gaoler his desire that it shall be so void, whether such prisoner shall be in Re JOHN WARNER. Accepting accommodation bills. Where it appears that one of the parties to an accommodation bill is of ability to pay, and when the bill arrives at maturity makes the offer : Held, that it is a sufficient answer to a charge against the other party of contracting a debt without reasonable or probable expectations of payment. This insolvent was opposed by Bicker Caarten, upon the ground that he had contracted debts without reasonable or probable expectation of payment. It appeared that he had put his name to two bills for the accommodation of another person, and that when one of the bills became due he had received money from that person to take it up, and that he was also prepared to take up the other bill when it became due. The bills had been discounted by the Leicester Loan and Discount Bank, Leicester-square, and the first bill not being paid, the next day after it fell due they issued a writ; and, upon the insolvent's tendering the money immediately at the bank, they refused to take it there, saying it was in their solicitor's hands; and upon its being offered to the solicitor he refused to take it without the addition of 17. 12s. for costs. The other bill would be paid when it became due. Caarten submitted that, under these circumstances, the petitioner could not be held to have had a reasonable expectation of payment; and the fact of the other party being able to pay did not exonerate him from his personal liability so long as that liability existed. Mr Commissioner MURPHY.-Suppose a petitioner accepted a bill for Baron Rothschild, could it be said that he had no reasonable expectation that the bill would be satisfied when he put his name to it? Caarten.-If the bill was not paid, and the acceptor came to that court, the fact of Baron Rothschild's presumed ability to pay would make no difference. There was the case of Charles Abney Monat, in Macrae's Protection Insolvency Practice, p. 387, before the late Chief Commissioner, exactly in point. Mr. Commissioner MURPHY said that in that case there was neither payment nor an offer of payment when the bills came to maturity, and that made all the difference. He should always discourage a system of accommodation bills where any creditors had been injured by them; but when, as in this case, payment of one had been offered, and it had been sworn that the other would be satisfied when due, he could not say that the insolvent had no reasonable or probable expectation that they would be paid when he gave his acceptance. If the other bill was unpaid when it became due, the fact might again be brought under his notice upon the day for granting the final order. Objection overruled. Day named. Tuesday, Jan. 10. Re PERRY. Opposition by trustees of mutual assurance society. Held, that the trustees of a British mutual subscription and assurance class, not being members, may oppose a member of the class for having contracted a debt with the class by false pretences. Dowse appeared to oppose, on behalf of the trustees This insolvent came up to-day for his hearing, when of the British Mutual Subscription and Assurance Classes, who were not members, for having contracted a debt with one of the classes by false pretences. Sargood, for insolvent, took a preliminary objection to their right to oppose. The principle of these associations was this:-A body of men, limited or unlimited in number, as the case might be, formed themselves into classes, consisting, in this instance, of twenty-five persons, every one of whom subscribed to his class a pound a month, and, at the end of that period, the member who bid the highest interest, &c., obtained the loan of the 251. The repayment formed a joint-stock common fund, which was from time to time distributed, those who had not anticipated their capital obtaining payment in full and interest, and a bonus from the profits. Every borrower was bound to find two good securities, not only for repaying loans, but for keeping up a policy of assurance in the society of which these classes were offshoots. The trustees of these classes had only the legal estate vested in them; and, before they could be allowed to oppose, it must be shown that they were personally losers by the fraud. It was only the cestui que trust, or members of the class, that had the beneficial terest, and could oppose in respect of an injury. Dowse replied. The members of this class gave and vested their rights in the trustees. In joint-stock banks they were the parties who could sue, and, if necessary, go into equity. for repairs done to his house, he would be brought in this case, and, if so, the petition must be dis- Macrae submitted that the petitioner had already Mr. Commissioner MURPHY said he perceived from Mr. Commissioner MURPHY.-The trustees are not members, nor have they any interest in the profits. I will admit the opposition valeat ad quantum, and hear the case on the merits. The case then proceeded, when it appeared that the manager of the society reported that the sureties were not to be depended upon, and they had both since passed through the court. The insolvent had, however, made a statement that there were no judgments against his sureties, which he knew to be untrue, as he was clerk in a Co. C. and had them directly under his own cognisance. Mr. Commissioner MURPHY said, upon the preliminary objection he thought that the trustees had the same relation to the class as the assignees had to creditors in that court. He had admitted assignees to oppose in a case where a man had subsequently become bankrupt, and he should, on the same principle, give these trustees a legal locus standi, and accept them as representing the injury sustained by the class they represented. It was the converse of the proposition that injury done to the class was done to the trustees. Upon the merits he thought it was a case of vigilantibus et dormientibus. The manager reported the sureties were men of straw, but they accepted the insolvent's statement; and, as the latter had made a wilful misrepresentation respecting his sureties, he thought it was a case for the discretionary clause, under which the insolvent would be remanded for Macrae then objected that, as there had been a distress for rent, there should be evidence of the bonâ fide nature of the transaction. The practice of the Chief Commissioner Reynolds was to require the production of the condemnation papers, and the attendance of the parties making the distress. The Chief Commissioner Law, in ordinary cases, was content with the production of the condemnation and sale papers, duly verified. Sargood, for insolvent, repudiated this statement as to the practice of the court. Mr. Commissioner MURPHY said he would consult the Chief Commissioner Law as to his practice upon this point; and, upon a subsequent day (Jan. 13), the learned Commissioner stated that he had inquired of the Chief Commissioner Law as to his practice in reference to the production of the distress papers; and he understood that, when the bonâ fide nature of the distress was not strongly impeached, he was satisfied with the production of the distress papers; and, in order that there might be uniformity of practice, he should himself adopt that practice in future, and this case would be adjourned for that purpose. Macrae next directed the attention of the court to debts in old schedules were to be added in such cases Sargood, for insolvent, said that it had never been required in any court, so far as he knew, to insert in schedules under these acts the debts of a bankrupt who had obtained his certificate; and the insertion of debts in old schedules was repudiated by the Chief Commissioner Law: (Macrae's Insolv. Prac. 97.) Cooke (amicus curia) said that the words of the Bankrupt Consolidation Act, 12 & 13 Vict. c. 106, s. 200, were, that "the provisions of that Act should discharge the bankrupt from all debts due by him when he became bankrupt;" and so complete had that Act made the discharge, that it went so far as to enact (s. 204) that no subsequent promise by the bankrupt, not even an agreement in writing, should render him liable upon it. Mr. Commissioner MURPHY observed that Patteson, J., seemed to use the words discharged and extinguished as correlative terms; but, whether that was so or not, it must be obvious to those who studied these bankrupt laws, that the object of the Legislature in granting a certificate was to protect a bankrupt who obtained it henceforth from all legal process in respect of the debts to which it applied. The policy of the protection statutes was to protect from legal process for the recovery of debts; but it was clear to his mind that if that protection was already obtained, their provisions could have no application. This object being clear from the preamble of the statutes (5 & Vict. c. 116, s. 1), he should give that construction to the words "owing debts" which appeared to him most in consonance to the intentions of the Legislature. He should therefore hold that these statutes did not apply to such debts, and that they must be excluded from the schedule. Objection overruled. Adjourned to produce evidence as to bonâ fide nature of the distress for rent. IMPERIAL PARLIAMENT. COMMON LAW AMENDMENT. Monday, February 27. The Court will receive evidence to correct the amount of under the 1 & 2 Vict. c. 110, nor the final order under great eminence in their profession-to inquire into and a debt inserted in the schedule of a trader debtor upon the day for granting the final order. Where a distress for rent has been levied, the Court will require the production of the condemnation papers, including the original inventory and notice delivered by the bailiff distraining, with an account, verified by affidavit, of the manner in which the goods distrained were disposed of, and the appropriation of the money realised. The Court will not require the unpaid debts under a bankruptcy with certificate to be added to the amount, in estimating the amount of debts owing by a trader debtor petitioning under these statutes. Macrae appeared to oppose this insolvent upon the day for granting the final order, and produced a bill of costs due by the petitioner in respect of legal proceedings to recover a debt in the schedule, which brought the amount of the debts owing by the insolvent, who was a trader, above 300l., and submitted that the petition must be dismissed. Sargood, for insolvent, said that by reducing another debt in the schedule to the extent of 107., which was really owing by the insolvent's landlord these statutes, extinguished the debts, but only barred Justice of the Court of Common Pleas, another of whom was now the Attorney-General, and three others of report upon the best mode of reforming and simplifying the proceeding in actions at common law. Those gentlemen made their first report at the close of 1851, and the consequence of that report was that an act of Parliament was passed in the following session of 1852, for materially simplifying and improving the course of proceeding in actions at law, the report of the commissioners having been mainly confined to that stage of of pleading, a sort of interlocutory proceeding which the action which preceded the trial, namely, the course must take place in almost every case. The object was to get rid, as much as possible, of everything technical, and to put the course of procedure on the simplest footing. One main subject to which their attention was directed was, what was popularly called special pleading. Against special pleading there existed, he (the Lord Chancellor) believed, a most unfounded prejudice in hending what was meant by the practice. the minds of the people, from their not rightly apprepleading, when not abused, was the very best machiSpecial nery that could be adopted for rendering proceedings at law simple and inexpensive-the object being to force parties in litigation to bring the facts on which they differ to the simplest and most decided issue. That was the object of special pleading, and undoubtedly it might be, and was, subject to great abuse; but in its main features it had been an eminently useful instrument in the administration of justice. In proof of that (a) As to the insertion of debts barred by the Statute of he need only refer to a comparison between the course Limitations, see Macrae's Protection Practice, p. 101. solvency Practice, p. 94). The question in this case of proceeding in England and that in Scotland, in the latter of which special pleading was either not known persons might think too slow. What he proposed was, fendant's counsel did not signify his intention to call witnesses, the commissioners proposed that the plaintiff's counsel should have an opportunity of addressing the jury again at the close of his own case and after he had called his witnesses. The only objection to such a measure was the additional time it might occupy. That was no doubt a misfortune; but still, if justice required it, time must be found. He doubted, indeed, whether much more time would be required under the new than under the present system; because, when the plaintiff's counsel knew that no witnesses would be called for the defence, he would as a matter of strategy confine his opening speech to a mere general outline of his case, would not commit himself more than he could help by saying what he was going to prove, but would, as much as possible, reserve any remarks upon the case until his witnesses had given their evidence. Certainly it seemed but just that a party should have an opportunity of addressing the tribunal which was to decide upon his case, after he had put them in possession of the facts upon which he relied, as well as before. Of course the defendant must have the same privilege of addressing the jury after he had called his witnesses, as well as before. There were other alterations proposed by the commissioners of too technical a character to justify his entering upon them then; but there were some of a more striking character, and such as would, he believed, meet the approbation of their lordships. It would be in the knowledge of their lordships that you could not give in the evidence a document attested by witnesses without calling the attesting witness or witnesses, or showing that he or they were dead, or that there was some good reason why they could not be called. The reason of this rule was, that if the attesting witness was not called it was considered as giving rise to a suspicion on the part of the plaintiff that there was something lurking behind which would damage his cause, and that if the witness were called his evidence would not be favourable to the validity of the document. The commissioners proposed to abolish this rule, which was often productive of great expense; except in cases when, as in the instance of a will, the validity of a document depended upon its being witnessed in a particular manner; then it would still be necessary to call the attesting witness. There were other points, such as the describing of your own witnesses, upon which the commissioners proposed to render the law more consistent with what common sense might seem to dictate; but upon these he did not intend to trouble the House. He would proceed to another point. Their lordships were aware that the jury were now required to be unanimous in giving. their verdict. He did not propose to alter that. He believed that it would be most dangerous to allow juries to decide other than unanimously, because the natural indolence of the human mind was such, that if a question could be put to the vote, one juror would vote for A, and another for B, and the case would be soon disposed of, without its merits being really canvassed amongst them. At present they must discuss the merits of the case in order to arrive at unanimity. But because he insisted upon unanimity, he did not insist upon the machinery which was at present in force for securing it. It was all very well to enact, but not so easy to obtain, that juries should be unanimous; and for this purpose they were coerced by being locked up without fire, coal, candle, or anything to eat or drink until they had agreed to their verdict. Indeed, he believed that, strictly speaking, they were not entitled to be discharged, certainly not in cases of felony, except one of the jurors died, when, being only eleven, they could not, of course return a verdict, or unless it could be shown that there was danger to life involved in keeping them longer confined. He believed that that was a discreditable state of the law. He did not think that much practical harm had been done; but still he felt that when they were reforming the law, they were bound not to leave it any longer liable to the observation, that the person who, to succeed in a trial before a jury, was the one in whose favour were the strongest jurors, or those who, from having most recently satisfied their appetites, could hold out best. The commissioners proposed, and he intended to adopt the suggestion, that if the jurors did not agree, after having been locked up for twelve hours, they should be discharged, and of course a new trial must then be had. At present, too, the jury were not allowed anything to eat or drink; it was proposed, and he thought the alteration would be a good one, that they should have-not a good dinner, or a handsome cold collation-but such reasonable refreshment that it could not be said they had been starved into their de cision either in one way or the other. If the jury were not unanimous at the end of the twelve hours, and they were discharged, of course there must be a new trial, and the commissioners propose that the parties might proceed with it either at the same or at a future assizes or sittings of the court, according to circumstances. Another recommendation of the commissioners with reference to the conduct of the trial was, he thought, marked by great good sense. At present all evidence must be given upon oath, except by Quakers, Moravians, and Separatists, in favour of whose religious scruples Parliament had from time to time passed acts of Parliament, enabling them to give their evidence on affirmation instead of oath. Of course the jury might, if they thought fit, detract from the weight of their evidence because it was not given on oath; but both they and the court were bound to receive and listen to it. It |