233 siness, June 24 at 12, Court of Bankruptcy, London. ton, Middlesex, brick maker: in the Debtors Prison for Lon- Wednesday, June 9. Orders have been made, vesting in the Provisional Assignee June 28, at the same hour and place. Dan. Gibson, Hill-st., Montpelier-sq., Brompton, Middlesex, not in any business.-Wm. Liddaman, Priory-pl., Camberwell New-road, Surrey, writing clerk.-Fred. Goodman, Great St. Andrew-st., Seven-dials, Middlesex, tin plate worker. -Evan Jones, George's-grove, Holloway, Middlesex, jobbing tailor.-Zachariah Smith, Margaret-st., Cavendish-square, Middlesex, assistant to a publican.—John Fogarty, Charlesstreet, Drury-lane, Middlesex, wood dealer. Court-house, WORCESTER, (County), June 26 at 10. Elijah Grove, Kidderminster, butcher.-William Jordan, Worcester, coal merchant. Court-house, Kingston-upon-HULL, June 25 at 10. Craven Denby, Hull, out of business. - John Mearns, Kingston-upon-Hull, out of business.-John Graves, Hull, | druggist. Court-house, IPSWICH, Suffolk, June 28 at 10. Nathaniel Rands, Ipswich, rope maker.-James Foreman, Lowestoft, butcher.-Henry Waller the younger, Claydon, miller. Geo. Wells the younger, Robert's-place, North-end, Fulham, Middlesex, clerk at the Admiralty-office: in the Queen's Prison.-Jos. A. Baker, James-st., Haymarket, Middlesex, boot maker: in the Debtors Prison for London and Middlesex.-Annette Collette, spinster, Berners-st., Oxford-street, Middlesex, out of business: in the Queen's Prison.-Robert Fairchild, Caroline-pl., Marlborough-road, Chelsea, Middlesex, livery-stable keeper: in the Debtors Prison for London and Middlesex.-Rob. F. Jackaman, Bryan-st., Caledonianroad, Islington, Middlesex, clerk in the Customs: in the Debtors Prison for London and Middlesex.— Wm. Marshall, Tyndale-pl., Islington, Middlesex, auctioneer: in the Queen's Prison. Wm. Moresby, South-sq., Gray's-inn, Middlesex, attorney at law: in the Queen's Prison.-Abraham O. T. 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Prospectuses, &c. may be had at the Office, or will be forwarded on application to the Secretary. Printed by LUKE JAMES HANSARD, PRINTER, residing at No. 7, Southampton Street, in the Parish of St. George, Bloomsbury, in the County of Middlesex, at his Printing Office, situate in Parker Street, in the Parish of St. Giles-in-the-Fields, in the County aforesaid; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. 11, John Street, Bedford Row, in the County of Middlesex. Saturday, June 12, 1847. No. 545-VOL. XI. JUNE 19, 1847. PRICE 18. *The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: A. GORDON, Esq. of the Inner | Vice-Chancellor Wigram's [F. FISHER, Esq. of Lincoln's {A.Gople, Barrister at Law. TENISON EDWARDS, Esq. of the {TEInner Temple, Barrister at Law. The Lord Chancellor's f A. GORDON, Esq. of the Inner ..... Master of the Rolls Court Temple, Barrister at Law. {G. of Inner LONDON, JUNE 19, 1847. Court Inn, Barrister at Law. Court of Queen's Bench Queen's Bench Bail Court Court of Common Pleas, G. J. P. SMITH, Esq. of the Inner Inner Temple, Barrister at Law. H. PELLY HINDE, Esq. of the D. POWER, Esq. of Lincoln's W. PATERSON, Esq. of Gray Court of Exchequer...{Barrister at Law. Ecclesiastical and Admi- JJ. P. DEANE, D.C.L. of Doctors ........ ralty Courts 273); Bagg's case, (11 Co. 99 a.); R. v. Chandler, (1 Ld. Raym. 545); The King v. Benn and Church, (6 T. THE case, Ex parte Kinning, (ante, 451, 456), is wor- R. 198); Harper v. Carr, (7 T. R. 275); Rex v. Gasthy of some consideration, as it relates to the proceed-kin, (8 T. R. 209); Capel v. Child, (2 C. & J. 558); ing of the inferior courts which have lately been established throughout the country, and also involves the important principle that no person shall be exposed to loss or punishment without having an opportunity of defending himself. Painter v. The Liverpool Gas Light Company, (3 Adol. & Ell. 433); Reg. v. Smith, (5 Q. B. Rep. 614); Re Blagg, (M. T., 1845, not reported, but stated in note to ante, 452). It is an In Harper v. Carr, it was held that the granting of It is true, that, when judgment has been obtained a warrant of distress for a poor's-rate is a judicial act, against a defendant, a writ of execution may issue and that the magistrates ought first to summon the thereon without further notice to him, because the is- party to hear what he has to say in his defence; and suing of such writ is merely a ministerial act of the per Lord Kenyon, "In the instance of granting a warCourt in order to carry out its sentence. So also, by rant of distress, the justices exercise a discretion after express statutory language, a capias may issue against inquiring into the circumstances of the case. a defendant upon an ex-parte application of the plain- essential rule in the administration of justice, that no tiff made upon oath; but firstly, such a course is de- man shall be punished without being heard in his declared legal by the words of the statute; secondly, it fence; the party must be summoned before a warrant is allowed only in cases where the debtor is about to of distress is granted, and on that summons many cirleave the country to avoid payment of the debt; and, cumstances may appear to shew that a warrant of disthirdly, a speedy remedy is afforded to the party ar-tress ought not to be granted." And in Rex v. Benn, rested by an application, on sufficient cause to a judge at chambers. the same learned judge remarked, "It is an invariable maxim in our law that no man shall be punished before he has had an opportunity of being heard." In Capel v. Child, Bayley, B., said, "I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property without his having an opportunity of being heard." But where the act involving loss or punishment is not so expressly provided for by statute, and where it is not merely a ministerial, but a judicial act, and therefore may be varied according to circumstances operating upon the mind of the judge or party about to commit the act, the person who is to be affected by it should have notice of the proceeding against him, and be permitted to adduce such facts and arguments as may appear to him sufficient to mitigate or wholly pre-lating to debtors and creditors. Opinions upon this vent the threatened evil. This principle is consistent with natural justice, and has been fully recognised by the laws of England. It will be found to have governed more or less the following cases:-Dr. Webb v. Batchelour, (1 Vent. VOL. XI. W It is well known, that numerous alterations have been made within the last few years in the laws re subject have been in a state of transition, anto at me because he cannot pay debts which were contracted without fraud or gross imprudence. The stat. 7 & 8 Vict. c. 96, provided, that a debtor should not be taken in execution unless the debt amounted to 20%. This enactment was afterwards regarded as an injury to creditors, and the stat. 8 & 9 Vict. c. 127, "for the better securing the Payment of Small Debts," was passed. By the 1st section of the last-mentioned statute, it was enacted, in substance, that any person indebted to another in a sum not exceeding 201., on a judgment or order of Court, may be summoned before an inferior Court, and be examined touching the manner and time of contracting the debt, his means or prospect of payment, &c., and the Court may order the debt to be paid by instalments; and, in case the debtor shall not attend, or shall not answer satisfactorily, &c., or "shall appear to have the means of paying the debt by instalments, and shall not pay the same at such times as the Court shall order, the judge of such court may order such debtor to be committed for any time not exceeding forty days." And, by sect. 3, such imprisonment is not to operate as a satisfaction of the debt. The question in Kinning's case arose upon the above 1st section. He had been committed by a judge of the Sheriff's Court for non-payment of a first instalment of 21., having been ordered, after appearance and examination, under the above act, to pay a debt of 197. 19s. by monthly instalments of 21. each. The order or warrant of commitment did not state that the debtor had been summoned, or had notice, after the making of such order for payment, and before the making of the warrant for his commitment. It was on this ground (and upon another, which it is not necessary here to consider) that a motion was made for his discharge. The Court of Queen's Bench, to which the application was first made, was divided in opinion, Lord Denman, C. J., and Erle, J., agreeing with a former opinion expressed by Alderson, B., in Ex parte Foulkes, (15 Law Journ., N. S., Exch., 300), that such a warrant was in the nature of a limited capias ad satisfaciendum, which must be considered as in full operation from the time of making the order for the payment of the debt by instalments, and they were also of opinion, that the issuing of such warrant was a ministerial act, and that there would be danger of the debtor's absconding, if it were necessary in such a case to summon him. As the statute was silent upon the question, the learned judges applied the principle, of which we have treated at the commencement of this article. OBSERVATIONS ON REG. v. INHABITANTS OF ST. GILES-IN-THE-FIELDS, (Queen's Bench, 14th and 15th June, 1847). It has struck us as singular, that, in the case of Reg. v. The Inhabitants of St. Giles-in-the-Fields, recently in part heard, before the Court of Queen's Bench, in which the much-debated question of the legality of the marriage of a man with his deceased wife's sister is raised, the distinction between marrying a deceased wife's legitimate sister and her illegitimate sister, should have been so little noticed, and that the case of Hains v. Jeffel, (Ld. Raym. 68), and the comments of Sir W. Scott upon it in Horner v. Horner, (1 Hag. Cons. 337), should have been quite passed by*. To The senior counsel contending for the legality of the marriage, is reported to have said, that the fact that the first wife was an illegitimate offspring, could make no difference; to which the Court responded, that, if it made any, it would be in favour of the marriage. us that circumstance appears to make so considerable a difference, that we shall not be surprised to see the Court escape from the difficult task of deciding the principal question, by deciding the case upon that very distinction. The question is, we believe, wholly unprejudiced by decision. That is, as we have shewn in the paper referred to in the 9th volume of THE JURIST, the case of Hains v. Jeffel did not decide it, nor was it decided, nor does it appear that any opinion was given upon it, in the proceedings in the ecclesiastical court, which, in in the two cases referred to, we have found nothing in Hains v. Jeffel, it was sought to prohibit; and except the books on the subjectt. It remains, therefore, to be considered upon principle, whether marrying successively the legitimate and the illegitimate daughters of the same parents, is, for the purpose of the 5 & 6 Will. 4, c. 54, and all the law which that statute brings into play, marrying two sisters. It is perfectly clear, that, for many purposes, there is no legal consanguinity between the legitimate and illegitimate daughters of the same parents. The illegitimate daughter could not, for instance, inherit as coparquest by the legitimate daughter to "my brothers and cener with the legitimate daughter. A devise or besisters," would clearly pass nothing to the illegitimate daughter. So, under the old law, a bastard could not be a villein unless he acknowledged himself to be a villein in a Court of record; "for," says Littleton, cannot be heir to any." For the same reasons, a bas(s. 188), "he is, in law, quasi nullius filius, because he tard (before the 4 & 5 Will. 4, c. 76) had his settlement in the parish of his birth; nor can a use be raised in favour of a bastard for the consideration of blood, for the same reason, because he has not in him in law the blood of his parent; "because," says Lord Coke, "in judgment of law he is nullius filius." (Co. Lit. The Court of Common Pleas was next moved for the prisoner's discharge, and they were unanimous in granting it, in conformity with the opinions of Patteson and Coleridge, JJ., in the Court of Queen's Bench. Their decision proceeded upon the grounds, that the making of the order or warrant for commitment was a judicial act, in the exercise of which the judge had a discretionary power, inasmuch as the of imprisonment « power was intended to be given by the act only where a debt was improperly withheld, and the term of imprisonment was to be regulated by the circumstances of the case; that it was necessary for the judge to make inquiry before he could decide upon committing, or upon the period of commitment; and that, according to general principles, this could be properly done only by summoning the debtor, and hearing what he had to say in his defence. *See a paper on this subject, 9 Jur. 469. It is singular that both in the original text of Blackstone, 21st edit., vol. 1, p. 458, and in the note in the same volume, p. 459, Lord Raymond, p. 68, (viz. the case of Hains v. Jeffel) is referred to, in support of the assertion, that an illegitimate child may not marry a relation within the levitical degrees. It text-writer, and that the author of the note relied upon Sir W. is probable that Sir W. Blackstone relied upon some previous Blackstone, as it is quite certain that the point received no direct decision in Hains v. Jeffel. |