Contempts in Chancery.-Trust Monies employed in Trade. 51 some obscurity in the words of this statute, | having previously done such acts as the Court but there is none in its title. It was mani- shall direct, to be discharged out of custody; festly the intention of the legislature to provided that if any such defendant become extend the time for taking the oaths and entitled to any funds out of such cause, the performing the other acts required of per- the said Court, in the first instance, to the reimsame shall be applied under the direction of sons filling certain offices; and this being bursement of the Suitors' Fund. a remedial statute, we should so construe it as to give full effect to that intention. Rule refused. 8. That it shall be lawful for the Master visiting the Fleet, or to whom the case of a prisoner shall be referred by the Court itself, inter-to examine the prisoner, and all other persons whom he may think it proper to examine upon oath, and to administer an oath or oaths to any such prisoner and other persons accordingly; and to cause any officers, clerks, and ministers of any court of law or equity, to bring and produce upon oath before him, any records, orders, books, papers, or other writings belonging to the said Courts, or to any of the officers within As the question is of some public est, and may occur again, we have stated the authorities on it; and it appears to us that Mr. Salomons is protected by the last Indemnity Act, in not making the declaration required by the 9 G. 4, c. 17, down to the 25th of March 1836, (by which time a new Indemnity Act may be passed,) and that for the present he is admissible to the Court of Aldermen. CONTEMPTS IN CHANCERY. IN consequence of an occurrence in the term just ended, respecting prisoners in contempt of orders or deerees of the Court of Chancery, we shall print the Orders in Sir Edward Sugden's Act' (1 W. 4, c. 36) relating to the appointment of a Master to inspect such prison ers. These orders are the 7th and 8th. 7. That on the 30th day of January, the 30th day of April, the 30th day of July, and the 30th day of October, in every year, or if any of those days happen on a Sunday, then on the following day, one of the Masters of the Court of Chancery, to be named by the Court, shall visit the Fleet Prison, and examine the prisoners confined there for contempt, and shall report their opinion on their respective cases to the Court; and thereupon it shall be lawful for the Court to order, if it shall see fit, that the costs of the contempt of any such prisoner shall be paid out of the interest and dividends arising from the several government or parliamentary securities standing in the name of the accountant general of the said Court of Chancery, intituled "Account of Monies placed out for the benefit and better Security of the Suitors of the High Court of Chancery," and "Account of Securities purchased with Surplus Interest arising from Securities carried to an Account of Monies placed out for the Benefit and better Security of the Suitors of the High Court of Chancery," or out of any cash standing to either of such accounts, or to any other account which is now or hereafter may be standing to the credit of the suitors of the said Court of the same as such officers. No appointment of any Master was made by the Court on the 30th of October last, and some difficulty arose in consequence of this, which has since been obviated by the appointment of a Master. TRUST-MONIES EMPLOYED IN TRADE. WHERE a trustee mixes trust monies with his In the prior case of Brown v. De Tastet, Jac. 284; 4 Russ. 126, a bill was filed for an account of an intestate's assets, alledging that De Tastet had continued to carry on the intestate's trade with the capital of the intestate, his deceased partner; and the defendant having, by his answer, admitted the profits in the trade by the use of that capital, he was ordered to account for those profits: but this case was decided chiefly on its own circumstances, and the general question has never Chancery, (after and subject to the payment of come before the Court but in the first menall charges which by any act heretofore passed tioned case. As it is a point of very considerare directed to be paid thereout,) and to assignable importance, we shall extract what appears a solicitor and counsel to such prisoner, for putting in his answer and defending him in to us the most striking portion of the Lord Chanforma pauperis, and to direct any such prisoner, cellor's judgment, observing, that all the cases 52 Trust Monies employed in Trade. bearing on the point are mentioned, either in the | his own traffic? At first sight this seems arguments or in the judgment. The rule certainly appears to have been to give interest, and not an account of the profits. This is admitted by Lord Brougham, and the cases where it was given are cited. He then adverts to the general principles on which the Court acts: grossly absurd; and some reflection is required to understand how the Court could ever, even in appearance, countenance such an anomaly. The reason which has induced judges to be satisfied with allowing interest only, I take to have been this: they could not easily sever the profits attributable to the trust-money from those belonging to the whole capital stock; and the process became still more difficult, where a great proportion of the gains proceed"Wherever a trustee, or one standing in the ed from skill or labour employed upon the relation of a trustee, violates his duty, and capital. In cases of separate appropriation deals with the trust estate for his own behoof, there was no such difficulty; as where the rule is, that he shall account to the cestui land or stock had been bought and then sold que trust for all the gain which he has made. again at a profit; and here, accordingly, there Thus, if trust-money is laid out in buying and was no hesitation in at once making the trus selling land, and a profit made by the transac- tee account for the whole gains he had made. tion, that shall go not to the trustee who has so But where, having engaged in some trade himapplied the money, but to the cestui que trust self, he had invested the trust-money in that whose money has been thus applied. In like trade along with his own, there was so much manner (and cases of this kind are more nu- difficulty in severing the profits which might merous,) where a trustee or executor has used be supposed to come from the money misapthe fund committed to his care in stock specu-plied from those which came from the rest of lations, though the loss, if any, must fall upon the capital embarked, that it was deemed more himself; yet for every farthing of profit he convenient to take another course, and instead may make he shall be accountable to the trust of endeavouring to ascertain what profit had estate. So, if he lay out the trust-money in a been really made, to fix upon certain rates of commercial adventure, as in buying or fitting interest as the supposed measure or repreout a vessel for a voyage, or put it in the trade sentative of the profits, and assign that to the of another person, from which he is to derive trust estate. This principle is undoubtedly a certain stipulated profit, although I will not attended with one advantage; it avoids the nesay that this has been decided, I hold it to be cessity of an investigation of more or less quite clear that he must account for the profits nicety in each individual case, and it thus received by the adventure or from the concern. attains one of the important benefits resulting In all these cases it is easy to tell what the from all general rules. But mark what sacrigains are; the fund is kept distinct from the fices of justice and of expediency are made for trustee's other monies, and whatever he gets, this convenience. All trust-estates receive the he must account for and pay over. It is so same compensation, whatever risks they may much fruit, so much increase on the estate or have run during the period of their misapprochattel of another, and must follow the owner-priation; all profit equally, whatever may be ship of the property and go to the proprietor. the real gain derived by the trustee from his So it is also where one, not expressly a trustee, breach of duty; nor can any amount of profit has bought or trafficked with another's money. made be reached by the Court, or even the The law raises a trust by implication, clothing most moderate rate of mercantile profit, that him, though a stranger, with the fiduciary cha- is the legal rate of interest, be exceeded, racter, for the purpose of making him account-whatever the actual gains may have been, unable. If a person has purchased land in his less by the very clumsy and arbitrary method own name with my money, there is a resulting of allowing rests, in other words compound trust for me; if he has invested my money in interest; and this without the least regard any other speculation without my consent, he to the profits actually realized: for in the is held a trustee for my benefit; and so an most remarkable case in which this method attorney, guardian, or other person standing has been resorted to, Raphael v. Boehm, stated in a like situation to another, gains not for him-in 11 Ves. 92, and in 1 Mad. 300, (which, inself, but for the client, or infant, or other party deed, is always cited to be doubted, if not diswhose confidence has been abused. Such approved) the compound interest was given being the undeniable principle of equity, such with a view to the culpability of the trustee's the rule by which breach of trust is discou- conduct, and not upon any estimate of the raged and punished-discouraged by intercept-profits he had made by it. But the principal ing its gains, and thus frustrating the inten-objection which I have to the rule is founded tions that caused it; punished by charging all upon its tendency to cripple the just power of losses on the wrong doer, while no profit can this Court in by far the most wholesome and even accrue to him-can the Court consistently indeed necessary exercise of its functions, and draw the line as the cases would seem to draw the encouragement thus held out to fraud and it, and except from the general rule those in-breach of trust. What avails it towards prestances where the risk of the malversation is venting such malversations, that the contrivers most imminent; those instances where the of sordid injustice feel the power of the Court trustee is most likely to misappropriate; name-only where they are clumsy enough to keep ly, those in which he uses the trust-funds in the gains of their dishonesty severed from the Trust Monies employed in Trade.- Suggestions for Improving the Law. 53 trived to throw in the way of pursuit and detection, saying, you had better not make the attempt, for you will find I have made the search very troublesome?" The answer is, "The Court will try." The judgment must be affirmed; but, as this is a case of the first impression, without costs." rest of their stores? It is in vain they are told quity from being traced? Rather let me ask, of the Court's arm being long enough to reach when did any wrong-doer ever yet possess the them, and strong enough to hold them, if they hardihood to plead, in aid of his escape from know that a certain delicacy of touch is re-justice, the extreme difficulties he had conquired, without which the hand might as well be paralysed or shrunk up. The distinction, I will not say sanctioned, but pointed at by the negative authority of the cases, proclaims to executors and trustees, that they have only to invest the trust-money in the speculations, and expose it to the hazards of their own commerce, and be charged 5 per cent. on it; and then they may pocket 15 or 20 per cent. by a successful adventure. Surely the supposed difficulty of ascertaining the real gain made by the misapplication, is as nothing compared with the mischiefs likely to arise from adınitting this rule, or rather this exception to one of the most general rules of equitable jurisdiction." SUGGESTIONS FOR IMPROVING His Lordship then adverted to the analogous TAKING ADVANTAGE OF TECHNICAL Irregucases on this subject, and thus concluded: LARITIES. To the Editor of the Legal Obsever. Sir, "It was right that I should advert to these authorities at the same time I am ready to admit, that my opinion in the present case is founded much more upon principle than upon decision. In affirming the decree of His Ho-lately reported to have been taken against vaThe great number of frivolous objections nour, I am sure that I overrule nothing ever rious proceedings, (owing in some measure to actually decided, and that I only extend an the strictness of the late Rules), impress upon undeniable principle of the Court to a case the mind the propriety and justice of the folwhere its application appears to be peculiarly lowing remarks of Mr. Chitty, in his Practice called for by the most pressing considerations, of the Law, vol. 3, p. 426." Irregularities, both of consistency in principle, and expedi- arising either in practical forms, or in the time ency in practice. That the parties whose funds have been misapplied, should, in every ings in an action for the plaintiff or defendant, or manner of conducting the practical proceedcase, have their option of receiving either the and in every stage from the affidavit to hold to actual profits made, or interest at four or five bail, and the issuing process, whether serviceper cent., according to circumstances, appears able or bailable, to the levy of execution, and a rule exposed to no serious objection; and although the Court, moved by special circum- even the entry of satisfaction of the judgment stances, may allow rests with compound inter- on the record, constitute unhappily, too freest, yet this seems, generally speaking, much quent subjects of application to a Judge or to less advisable than an account of actual profits. become more liberal, or the temptation of obthe Court; and until professional men shall have Should in any case, a serious difficulty arise in taining costs, however small, from the oppotracing and apportioning the profits, this may nent, shall have been removed, or greatly be a reason for preferring a fixed rate of inter- limited by new regulations, it is to be feared est in that case. Nor can any argument be raised upon the inconvenience of going into the special circumstances of each instance; ral imperative rule, that no irregularity or ob"The Judges, who would introduce a genefor even according to the course pursued in the cases I have referred to, this kind of injection, either in pleading or practice, should quiry is indispensable. The authority of Lord be taken advantage of, unless the party obThurlow, (who leant less hardly against trus-notice of the objection, and afforded him a jecting shall have first given to his opponent tees than any other Judge), has laid it down, reasonable opportunity of rectifying it, without that more than four per cent. is never to be charged, without special circumstances proved; thanks of the profession, and of the public: of great increase of expense, would deserve the so that at all events, some inquiry is rendered the former, in consequence of being rendered necessary: and this may be safely stated, that more respectable; and of the public, in rethe last person who can be heard to argue spect of the amelioration in the administration from the difficulty of tracing or apportioning of justice." the profits of the misapplied funds, is the man whose breach of trust has caused the misapplication, and created the difficulty. When did a court of justice, whether administered according to the rules of equity or of law, ever listen to a wrong-doer's argument to stay the arm of justice, grounded on the steps he himself had successfully taken to prevent his ini will continue. E. W. CHANGES MADE IN THE LAW session of any person employed to convey let. DURING THE LAST SESSION OF (1835.) ters sent by the post of Great Britain, or from or out of any Post Office, or house or place for the receipt or delivery of letters or packets, or bags or mails of letters sent or to be sent by such post,any letter or packet, or bag or THE ACT FOR ABOLISHING CAPITAL PUNISH-mail of letters sent or to be sent by such MENTS IN CASES OF LETTER STEALING AND SACRILEGE. (5 & 6 W. 4, c. 81.) [10th September, 1835.] post, or shall steal and take any letter or packet out of any such bag or mail, every person so offending, and being thereof conThis is another of the series of acts lately victed, shall be adjudged guilty of felony, and passed, for the mitigation of the criminal law shall suffer death as a felon, without benefit of (the only one passed in the last session). It clergy: And that in and by the said recited recites, that by the 36 Geo. 3 (Irish), and by act it is further enacted, that if any person the 52 Geo. 3, 143, it is amongst other things shall counsel, command, hire, persuade, proenacted, that if any person whatsoever employ- cure, aid, or abet any such deputy, clerk, agent, ed by or under the Post Office of Great Britain, letter carrier, post boy or rider, or any officer receiving, stamping, sorting, charging, carry- or person whatsoever employed by or under ing, conveying,or delivering letters or packets, the said office, in receiving, stamping, sorting, or in any other business relating to the said of- charging, carrying, conveying, or delivering fice, shall secrete, embezzle, or destroy any let letters or packets, or in any other business reter or packet, or bag or mail of letters, with lating to the said office, to commit any of the which he or she shall have been entrusted in con- offences in the said recited act, and hereinsequence of such employment, or which shall in before mentioned, or shall, with a fraudulent any other manner have come to his or her intention, buy or receive the whole or any part hands or possession whilst so employed, con- or parts of any such security or instrument as in taining the whole or any part or parts of any the said recited act and herein-before describbank note, bank post bill, bill of exchange, ed, which shall have been contained in, and exchequer bill, South Sea or East India bond, which at the time of buying or receiving theredividend warrant, either of the bank, South of he or she shall know to have been contained Sea, East India, or any other company, society, in, any such letter or packet so secreted, emor corporation, navy or victualling or trans- bezzled, stolen, or taken by any deputy, clerk, port bill, ordnance debenture, seaman's ticket, agent, letter carrier, post boy, or rider, or any state lottery ticket or certificate, bank receipt other officer or person so employed as aforefor payment on any loan, note of assignment said, or which such person so buying or reof stock in the funds, letter of attorney for re-ceiving as aforesaid shall at the time of buying ceiving annuities or dividends or for selling or receiving thereof know to have been constock in the funds or belonging to any com-tained in and stolen and taken out of any letpany, society, or corporation, American pro. ter or packet stolen and taken from or out of vincial bill of credit, goldsmith's or banker's any mail or bag of letters sent and conveyed letter of credit or note for or relating to the by such post, or from or out of any post office, payment of money, or other bond or warrant, or house or place for the receipt or delivery of draft, bill, or promissory note whatsoever for letters or packets, or bags or mails of letters the payment of money, or shall steal and take sent or to be sent by such post, every person out of any letter or packet with which he or she so offending, and being thereof convicted, shall shall have been so entrusted, or which shall be adjudged guilty of felony, and suffer death have come to his or her hands or possession, as a felon, without benefit of clergy, and should the whole or any part or parts of any such and might be tried, convicted, and attainted of bank note, bank post bill, bill of exchange, ex-such felony as well before as after the trial or chequer bill, South Sea or East India bond, di- conviction of the principal felon, and whether vidend warrant, either of the bank, South Sea, the said principal felon should have been East India, or other company, society, or cor-apprehended, or should be amenable to jusporation, naval or victualling or transport bill, ordnance debenture, seaman's ticket, state lottery ticket or certificate, bank receipt for payment of any loan, note of assignment of stock in the funds, letter of attorney for receiving annuities or dividends or for selling stocks in the funds belonging to any company, society, or corporation, American provincial bill of credit, goldsmith's or banker's letter of credit or note for or relating to the payment of money, or other bond or warrant, draft, bill, or pro- | missory note whatsoever for the payment of money, every person so offending, being thereof convicted, shall be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy: And if any person shall steal and take from any carriage, or from the pos | tice, or not: And that by the 7 & 8 G. 4, c. 29; and by the 9 G. 4, c. 55, it is amongst other things enacted, that if any person shall break_and enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel shall break out of the same, every such offender, being convicted thereof, shall suffer death as a felon": And that it is expedient that a lesser punishment than that of death should be provided for the punishment of the offenders convicted of any of the offences so specified in the said acts: It is enacted, that so much of each of the said acts as inflicts the punishment of death upon persons convicted of any of the offences therein and herein before specified shall be, and the same is hereby repealed, and that from Unqualified Practitioners at the Sessions. and after the passing of this act, every person convicted of any of the offences in the said act so specified, or of aiding or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years. 55 clined stopping the case and directing an acquittal, but reserved that, and also another objection which I took, on the ground of misdirection. Both points were, on Tuesday, decided against me. Of this decision I do not, because I have no right, to complain; but I may remark, that no authority was cited, to prove that the objections were unfounded. As to the policy, or justice of suppressing the practice of non-professional men assisting prosecutors and defendants at the sessions, I will only say, that the practice has existed for ages; that several of the learned judges have, UNQUALIFIED PRACTITIONERS AT I have no doubt, taken hundreds of briefs from THE SESSIONS. To the Editor of the Legal Observer. Sir, IN the Legal Observer of November 7, you cite an opinion, supposed to have been expressed by me, in the course of my address to the jury, in the case of Rex v. Collins. Had yours not been a legal work, I should not probably have deemed it necessary to notice the article alluded to; but as it is, I trust, in doing so, I am not violating professional etiquette. such persons; that hundreds of them are taken in London, every year, by the leading counsel in the crown courts; that, so far as I know, they are refused by none; and, I presume, that these facts furnish at least strong presumption that justice requires its continuance. Indeed such persons are seldom employed, except, as in the case out of which this indictment arose, by those who are too poor to employ an attorney; and, I own, it seems to me, that to suppress that practice would but little benefit attorneys, and would be a denial of justice, because a denial of assistance, to the poor and ignorant. I should have noticed your article sooner, but I thought it right to wait the decision of the Court on the case. I will not suppose you will hesitate to do me the justice of inserting this letter, in the next number of the Legal Observer. I remain, Sir, Yours, &c. C. H. HEATON. We willingly publish Mr. Heaton's let Though I do not recollect precisely what I did say, I am satisfied the report of it is not quite correct. What I said was, of course, to be taken in reference to the case before the Court, and then it was in substance this-that no indictment, or other criminal proceeding, could be maintained against any one for taking, on behalf of a party to an indictment, in a criminal court, the steps requisite to bring the case Temple, Nov. 19, 1835. on for trial, or for drawing up a statement of the case, handing it to counsel, and receiving a compensation for his trouble. Now I will not doginatically assert that this opinion is unquestionably correct; but I think it is, and I challenge you to produce any authority to shew that it is not. But supposing that I had said as reported, client. had said as reported, that " any man, who knew any thing of the law, was as competent, in these proceedings, as an attorney. Criminal courts know nothing of attorneys.' "Recollecting that that was said in reference to an indictment for so acting, was it not strange for a lawyer to attempt to confute my proposition, by quoting an act of parliament which makes a man liable, for acting as an attorney, &c. to be sued in the courts of record at Westminster for a penalty of 50%.? Did you think that, when I addressed the jury in that case, I was ignorant of the existence of the statute of 22 G. 2, c. 46? No, indeed; but I thought, and still think, that that statute had nothing whatever to do with the case; and I feel satisfied, that neither you who have cited it, nor the chairman who alluded to it, can produce any authority to shew that it had. You say, that my objection to the non-production of the roll, to prove an essential allegation in the indictment, constituting indeed the gist of the offence, was overruled. That was not so; for, after having looked, with great care, into the books, the learned chairman de ter. We have no doubt he said nothing more than he was entitled to urge for his client. We only disscnted from the largeness of the proposition, as reported, which did not appear to be confined to the case before the Court, namely, "that Criminal Courts knew nothing of attorneys, and that any man was competent to conduct proceedings in those courts." Although the 22 G. 2, c. 46, may not apply to the case in question, it clearly shews that the legislature, in order to provide against the mismanagement of prosecutions, has restricted all persons from practising as agents at the sessions, except attorneys admitted in the Superior Courts. The policy of this provision we shall leave our correspondents to discuss.-If the steps to bring a case to trial, as stated by Mr. Heaton, are not a violation of the 22 G. 2, c. 46, s. 12, for what purpose was that section passed? ED. |