Changes in the Law.-Suggested Improvements in Practice. shall be deemed and taken to have been made, drawn, accepted, given, or executed for an illegal consideration, and the said several acts shall have the same force and effect which they would respectively have had if instead of enacting that any such note, bill, or mortgage should be absolutely void, such acts had respectively provided that every such note, bill, or mortgage should be deemed and taken to have been made, drawn, accepted, given, or executed for an illegal consideration: provided always, that nothing herein contained shall prejudice or affect any note, bill, or mortgage which would have been good and valid if this act had not been passed. 2. Money paid to the holder of such securities shall be deemed to be paid on account of the person to whom the same was originally given.-That in case any person shall, after the passing of this act, make, draw, give, or execute any note, bill, or mortgage for any consideration on account of which the same is by the herein-before recited acts of the sixteenth year of the reign of his said late Majesty King Charles the Second, the tenth year of the reign of his said late Majesty King William the Third, and the ninth and eleventh years of the reign of her said late Majesty Queen Anne, or by any one or more of such acts, declared to be void, and such person shall actually pay to any indorsee, holder, or assignee of such note, bill, or mortgage the amount of the money thereby secured, or any part thereof, such money so paid shall be deemed and taken to have been paid for and on account of the person to whom such note, bill, or mortgage was originally given upon such illegal consideration as aforesaid, and shall be deemed and taken to be a debt due and owing from such last-named person to the person who shall so have paid such money, and shall accordingly be recoverable by action at law in any of his Majesty's Courts of Record. 3. Repealing so much of recited acts of 9 and 11 Ann. as enacts that securities shall enure for the benefit of parties in remainder.That so much of the said acts of the ninth and eleventh years of the reign of her said late Majesty Queen Anne as enacts that where such mortgages, securities, or other conveyances as therein mentioned should be of lands, tenements, or hereditaments, or should be such as should incumber or affect the same, such mortgages, securities, or other conveyances should enure and be to and for the sole use and benefit of and should devolve upon such person or persons as should or might have or be entitled to 291 such lands or hereditaments in case the grantor or grantors thereof, or the person or persons incumbering the same, had been naturally dead, and as if such mortgages, securities, or other conveyances had been made to such person or persons so to be entitled after the decease of the person or persons so incumbering the same, and that all grants or conveyances to be made for the preventing of such lands, tenements, or hereditaments from coming to or devolving upon such person or persons thereby intended to enjoy the same as aforesaid, should be deemed fraudulent and void and of none effect, to all intents and purposes whatsoever, shall be and the same is hereby repealed; saving to all persons all rights acquired by virtue thereof previously to the passing of this act. 4. Act may be altered this session.-That this act may be altered or repealed by any other act during this present session of parliament. in SUGGESTED IMPROVEMENTS IN PRACTICE. SERVICE OF PROCESS. Mr. Editor, You will much oblige me by affording room valuable Journal for another letter on your the subject of Law Reform, ere the period arrives, when parliamentary topics will render such matter inadmissible. The remedies by law process for recovery of debts, and the practice of the courts in rela tion thereto, having been ever available by roguish defendants and their crafty attorneys, for purposes of obstruction and resistance, and ever more favourable to their views than to those of the honest creditor; the legislature, a few sessions interfered by the enactment I alluded to in my former letter, the Uniformity ago, of Process Act, to amend the law in this respect. Amongst other matters there dealt with, was the service of process, which at that time a defendant might, by keeping out of the way avoid, and for ever deprive a plaintiff of his just debt. To remedy this manifest act of injustice, the judicial writ of distringas was invented, and prescribed by the third clause of this act (2 Gul. 4, c. 39), "In case it shall be made appear by affidavit to the satisfaction of the Court, that any defendant has not been served with any summons, and has not appeared to the action, and cannot be compelled to do so without some more efficaCourt to order a writ of distringas to be issued, cious process, then it shall be lawful for such &c., in order to compel the appearance of such defendant." 292 Suggested Improvements in Practice.-Correspondence. The form of the writ is set out in the schedule to the act; but by some strange blunder of legislation, it is allowed to be returnable in term time only, thereby following out the old principle of leniency to defendants, so much complained of. The sheriff is directed to levy 40s. of the defendant's goods and chattels, to compel (as the writ says) an appearance to the writ. This odd and absurd remedy (plainly shewing in its concoction the absence of assistance from the practical lawyer) was, however, a step in advance of the old plan of absolute service. It It is much to be regretted, however, that the act did not specify the exact terms upon which this writ could be granted. The matter is left in the breast of the Court, who have not yet settled any uniform practice in these cases. has been laid down, that to obtain a distringas, the process server must call four distinct times by appointment to endeavour to serve the writ, state on each visit the object thereof (evidently the most efficacious method of giving the defendant a hint to keep out of the way); that on his last visit he must leave a copy of the writ. On an affidavit of this kind, deposing also that, in the belief of the process server, defendant kept out of the way to avoid being served with the writ; a distringas was, a few days since, granted against a defendant by the Court out of which the writ of summons issued; but this week the same Court refused the writ on an affidavit precisely similar, and then laid it down that it must appear "that the defendant was at home and denied, or avoided heing at home, for the express purpose of not being served." I need hardly say such a proof by a process server is next to impossible; and therefore, if this rule prevail, the act may now be fairly considered" a dead letter." Whether such a construction of the case supposed by the act, viz.—" where a party cannot be compelled to appear without some more efficacious process," be correct, I leave to the judgment of the public. I feel convinced, however, that the act contemplated providing a mode of commencing an action against an obstinate defendant; but the Court has virtually denied its sufficiency for that purpose, and the public must now go to parliament for an act which will in itself provide the remedy required. SELECTIONS FROM CORRESPONDENCE. EVENING ATTENDANCE IN SOLICITORS' Sir, Number of the 13th instant, a letter signed Every body who is at all conversant with the routine of a merchant's Counting House must which occur twice a week, midnight not unfreknow full well, that on foreign-post-nights,” quently overtakes the weary clerk before his task is completed. I have thought it right to submit these few that by being circulated in your excellent observations to your consideration, trusting journal, they may tend to arrest that contagious spirit of discontent which I fear is now abroad amongst that respectable body of men, the law clerks. SUUM CUIQUE. INTERPLEADER ACT.-UNDER-SHERIFF. Sir, J. W., Solicitor for the claimant. In last week's Legal Observer I perceive there is a mistake in the report of the case of As a practical lawyer, I would suggest, that Ostler v. Bower, p. 273. The rule was not the act should direct an appearance to be en-disposed of on terms agreed on, but distered, by the proper officer, for the defendant, charged. The plaintiff was not identical with on an affidavit that the process server paid him the under-sheriff, but was the under-sheriff's three visits to serve the writ, without effect, and father and partner. on the last application, left a copy of the writ with a person at the house: the motion should be made a fortnight before the application, giving time for the copy writ to be sent him in any distant part; and to prevent misconstruction, a form of the affidavit should be appended to the act. Something of this sort must be done, or it will be useless to commence any action for recovery of a debt against an obstinate defendant. CIVIS. LAW SOCIETIES. If any of your readers know of a mutual Law Instruction Society in London, I would thank them, for the information of others and of me, to send you an account of its place and time of meeting, and the manner in which it is conducted. L. S. On Limitations to the Separate Use of an Unmarried Woman. 293 ON LIMITATIONS TO THE SEPA- | married woman, and gave rise to a very difRATE USE OF AN UNMARRIED ferent question from that raised by a limita WOMAN. OUR readers are aware that considerable con flict of opinion has lately prevailed on the A legacy was left to an unmarried lady to her separate use, independent of any husband she might marry, with power of appointment. She married without dealing with the property, and her husband became a bankrupt, and she then appointed the fund to the plaintiff. The present bill was filed to carry the appointment into effect; in opposition to which the assignees of the husband contended the property passed to them, subject to his wife's equity to a settlement. Mr. Wigram, (with whom was Mr. Parry,) in support of the demurrer, contented themselves with reading the present Lord Chancellor's judgment as Master of the Rolls, in the late case of Massy v. Parker, in which all the authorities were reviewed. (See this judgment verbatim, 9 L. O. 229.) Wherein that learned Judge held, that as the limitation to the separate use, like the limitation against anticipations, was wholly inoperative before the marriage, the very act of marriage constituted a gift to the husband. Mr. Knight, with Mr. Walker, in support of the bill, argued that none of the cases prior to Massy and Parker touched the present question, the only question hitherto being as to the effect of the words to prevent anticipation, which was a fetter on the disposing power of a tion merely to her separate use. And the opinion expressed in Missy v. Parker, if correctly understood to be adverse to such a limitation to an unmarried woman being of any avail upon her subsequent marriage, was at the least extra-judicial. But it was also evident, from the particular terms used by the late Master of the Rolls, that his observations had mainly reference to the anticipation clause, and had been misunderstood as applying to the general limitation. However, the very point was decided, or taken for granted, by Sir John Leach, in the case of Simpson v. Jones, 2 Russ. & Myl. 365; S. C. 1 L. O. 285, 302. In that case some leaseholds were bequeathed to the separate use of an unmarried infant, independent of any husband she might marry. Upon her marriage, during infancy, a settlement was made of the leaseholds, with power to the trustees to sell. The trustees having sold, a question arose whether the settlement was valid, as, it was contended, the lady, by reason of her infancy, was incapable of settling the property. This objection, which was held by Sir John Leach to be fatal to the power, could never have been raised had the limitation to the separate use of the lady while unmarried been simply nugatory, as the settlement would then have been supported as the act of the husband. The Vice Chancellor, during the argument, remarked, he had recently conversed with the late Lord Chancellor of Ireland (Sir E. Sugden), (a) on this subject, who he found agreed with him in opinion. He (the Vice Chancellor) had always understood it was competent for any person to limit property to the separate use of a woman; and the practice of the profession was without variance on the subject. Although it might be inferred, from some expressions of the present Lord Chancellor, in Massey v. Parker, that such was not his opinion, yet that case was certainly not a decision on the subject. That decision was not absolutely necessary; and, looking at the language of his lordship, it would appear he was rather addressing himself to the restraint upon alienation, than to the limitation to separate use. After observing upon the cases, all of which related to the anticipation clause, his honor added, if any authority was required, the deci sion in Simpson v. Jones afforded it. It was perfectly plain the objection to the power in the marriage settlement was perfectly futile, if property could not be given to the separate use of an unmarried woman. He should be sorry to be thought to have the slightest doubt on the subject; and if he were sitting in his chamber as a counsel, he would not have hesitated to say this was a perfectly good limitation to the separate use of the lady. He begged to a The difference of opinion in this respect between the present Lord Chancellor and the Vice Chancellor, is adverted to by Sir Edward Sugden in his recent pamphlet, p. 7. his judgment, that the Lord Chancellor had not decided otherwise. We trust that this case may be carried to the Lord Chancellor's Court, and that this very important question may be there finally settled. PRIVILEGE OF ATTORNEYS. If he be understood as taking for the foundation of he is not thereby deprived of his privilege of keeping the venue in Middlesex." But in Lowless v. Timms, 3 Dowl. Prac. Cas. 707, it was decided that his privilege only continues while he sues in person. appears by attorney he waives his privilege, and therefore the defendant may change the venue as a matter of course on the usual affidavit. In Dyer v. Levy, which was decided in last Hilary term, a decision on one of the Blackheath Court of Requests Acts was pronounced in conformity with those already mentioned. That was an application under the 10 G. 3, c. 29, s. 3, the Blackheath Court of Requests Act, for entering judgment in favor of the defendant, and giving him treble costs, on the ground that the plaintiff had only recovered a sum less than forty shillings. The plaintiff in that case was an attorney, and in answer to the objection founded on the Uniformity of Process Act, Mr. Justice Littledale said, "It is true, that by the Uniformity of Process Act the attachment of privilege is abolished, but the privilege itself is not taken away. The act of parliament having taken away that particular form of suing, did not mean to interfere with his privilege. By its provisions he is compelled to adopt the same form of writ as any unprivileged person; but he does not thereby waive his privilege, for there is no other form he can adopt. I think therefore that the case does not come within the provisions of the Court of Requests Act, on which this rule is founded." On the passing of the Uniformity of Process Act, it was at first supposed, that as attorneys must thenceforth sue and be sued like any other person, that therefore the privileges belonging to them when plaintiffs or defendants were abolished. If such were the intention of the act of parliament, it would be productive of great injustice. The object of the privileges bestowed on attorneys in the above cases, is not that a privileged class of persons should be constituted, who for their own private advantage could withdraw themselves from the ordinary mode of proceeding; but was to enable those who fulfilled the arduous and important duties attending on that branch of the profession to bestow more time upon them, and consequently to discharge them more efficiently. The privilege of the attorney is not his own private privilege, but the privilege of the client. In accordance with this latter view have been the decisions already pronounced since the passing of the act. We may consider those decisions, first, as they concern attorneys plaintiffs; and secondly, as they concern attorneys defendants. Next, as to attorneys defendants. In Keep v. Biggs, 2 Dowl. Prac. Cas. 278, and Pitt v. Pocock, 2 Cromp. & Mees. 146, it was decided by the Court of Exchequer, after consideration, that since the Unifor arrested on mesne process, although he may be sued with an unprivileged person: and Lord Lyndhurst, in delivering the opinion of the Court, said, "that an attorney, when sued with another person, is not now liable to be arrested, because under the new act there is a means by which one may be arrested, and the other served upon the same process." When that case was before First, as to attorneys plaintiffs. In Partington v. Woodcock, 2 Dowl. Prac. Cas.mity of Process Act, an attorney cannot be 550, it was decided that an attorney is entitled to retain his venue in Middlesex, notwithstanding the Uniformity of Process Act. In that case the decision was very important, because there the attorney had not duly entered his certificate within the limited time, pursuant to the 37 G. 3, c. 90, s. 27; and which act attaches a penalty of 50l. to the nonfulfillment of its provisions in that respect. There Mr. Justice Patteson observed, in answer to the objection founded on the act of parliament: 'I rather think an attorney is entitled to his privilege from the mere fact of his being on the roll; and that if he does not obtain and enter his certificate before he practises, that is a matter of application against him for any penalty he may thereby incur; but Mr. Baron Parke at chambers, he expressed an opinion that the attorney ought to have been served only. It may not be improper perhaps here to mention a case which occurred before the passing of the Uniformity of Process Act, on the subject of attorneys' privileges with respect to the Court of Requests, as it may perhaps furnish an analogy on a future de Privilege of Attorneys.-On the Removal of the Courts of Law. 295 cision. That was the case of Burn v. Pas- | Westminster. We are perfectly satisfied more, 1 Dowl. Prac. Cas. 17. In that case that the Houses of Parliament are most both plaintiff and defendant were attorneys, properly placed at Westminster; and we and the defendant was liable to be sum- conceive that their continuance there is now moned in the London Court of Requests. firmly and irrevocably settled, by the diviThe plaintiff, however, brought his action sion on the subject to which the House of in the Court of King's Bench, and recovered Commons came on the 10th of the present a less sum than 57., that being the amount month. But as we consider that the into which the jurisdiction of the Lon-terests of the large majority, both of the don Court of Requests was limited. An profession and the public, would be served application was accordingly made to enter by the removal of the Courts of Law to a a suggestion to deprive the plaintiff of his more central situation, we shall keep this costs. In answer to the rule it was con- subject in view, and re-urge the reasons tended, that as it was then decided an at- for it at all fitting opportunities. For the torney could not sue another by attachment present we shall give those portions of the of privilege, the attorney could not be taken recent debate which relate to our part of the to have waived his privilege, and therefore subject, referring to our former articles for was to be treated as if he had sued by at- further information. See 8 L. O. 497; 9 tachment of privilege. If he had so sued, L. O. 15, 30, 46, 67, 104. he would have been entitled to his costs; not having so sued being in consequence of the rule of law, and not his own will, he ought to be placed in no worse a situation. There Mr. Justice Littledale took time to consider, and afterwards gave his judgment to this effect: "I have consulted the other Judges on this point, and they agree with me in thinking that this rule ought to be made absolute. If neither the plaintiff nor the defendant were attorneys, the debt would be recoverable in the Court of Conscience; and if the plaintiff had sued in the Superior Court, he would have been deprived of costs by the act. But if the plaintiff does not proceed by attachment of privilege, he sues as a common person, and is not entitled to the privileges of an attorney. So also, if the privilege be lost, the plaintiff must be considered as a common person. It therefore appears to me that this rule must be made absolute, but without costs." The decisions since the passing of the Uniformity of Process Act, are certainly inconsistent with this view of Mr. Justice Littledale; and therefore it is conceived, that in the case of an attorney plaintiff against an attorney defendant, the former would not be liable to the provisions of the Court of Requests Acts. ON THE REMOVAL OF THE COURTS Ar the time of the destruction of the Houses of Parliament, we laid before our readers at considerable length, the reasons for the removal of the Courts of Law from Mr. Hume (among other things), said he might be accused of wishing for a radical change in this respect, because he would remove the courts of law from their present inconvenient situation. He would propose to build proper courts in the centre of Lincolns Inn Fields, in the vicinity of all the lawyers. Let them be all together. This would be much more convenient for the public and the lawyers themselves. He had scarcely ever seen so inadequate accommodation as the present courts furnished; and although a great deal of money had been expended in fitting them up, he did not think that any loss would be sustained; but that on the contrary, great public convenience would be obtained by getting rid of them altogether. Gentlemen would see from this, that he reckoned the vicinity of Westminster Hall as very little in favor of the present house. They were not the least allied to each other. Judges and lawyers were very proper persons to carry into effect the acts of the legislature; but they had no necessary connection with the proceedings of that body. They were altogether distinct. With regard to the vicinity of the courts of law, he hoped he had said enough to shew that they ought not to inof those who were interested in it. He knew terfere, from the comparatively small number that many other members would take the same view of the subject as he did. The Chancellor of the Exchequer.-His hon. Friend had very large plans; they embraced not only the quitting that spot, but also building the law courts in the centre of Lincoln's Inn Fields. Sir F. Pollock would not have troubled the House on the subject, had not reference been made by Mr. Hume to the circumstance of consulting the convenience of the members of the profession to which he Sir F. Pollock had the honor to belong. He could say for himself, and he thought also for the other members of the Bar who had seats in that House, that it was a matter of perfect indifference to them, whether the new Houses of Parliament were built in the neighbourhood of Westminster |