Executor's Duty in paying Debts, 113 Publication of Ex parte Proceedings, 129 Practice of granting Sheriffs' Warrants in Costs of attending Revising Barrister, 274 Champerty and Maintenance, 358 Evidence in Bankruptcy, 467, 486 Woolrych's Criminal Statutes, 36 Ecclesiastical Legal Guide, 37 Maugham's Outlines of Criminal Law, 119 Chancery Practice, Addenda, 211 Johnson on Bills of Exchange, 276 Hobler's Familiar Exercises, 307 Burge's Colonial and Foreign Laws, 370 Leigh's Law of Nisi Prius, 391 Pickering on Parliamentary Privilege, 403 Tomlins' Popular Law Dictionary, 436 Hudson's Executor's Guide, 436 Colquhoun's Report of Idiotcy Case, 436 Fane, on Bankruptcy Reform, 226, 434 Bone's Precedents in Conveyancing, 465 PRACTICE OF Retainers, 429, 439 PRACTICE AT THE JUDGES' CHAMBERS: EXAMINATION OF ARTICLED CLERKS: Observations on, 31, 48, 55, 85, 203, 232, Names of Candidates passed, 170, 332 Palatine Court Admissions without exa- USAGES OF THE PROFESSION, 360, 393 Country Bankruptcy Commissioners, 22, Record Clerks acting as Agents, 212 THE HILARY CLUB, 130, 146, 195 SELECTIONS FROM CORRESPONDENCE: French Law-Security for Costs, 85 Magistrates' Clerks' Fees, 279 Perpetual Commissioners 294, 312, 440 Certificated Conveyancers, 295 Brokers' Charge on Distresses, 295 Expence of Official Assignees, 377 Bankers' Cheques, 377, 395, 454, 487 MISCELLANEA, 144, 208, 253, 254, 334 Incorporated Law Society, 78, 172, 254, SHERIFFS, UNDERSHERIFFS, &c. 40, 361 ATTORNEYS AND SOLICITORS ADMITTED, 74 ATTORNEYS' RE-ADMISSIONS, 24, 218, 472 LISTS OF NEW Вooks, see each Monthly Re- MASTERS EXTRAORDINARY IN CHANCERY, Ib. BANKRUPTS, Ib. BANKRUPTCIES SUPERSEDED, Ib. Liability for Papers destroyed by Fire, 437 PRICES OF STOCKS, Ib. Annual Indemnity Bill, 393 THE EDITOR'S LETTER Box, end of each No. in the sum of 500l., for securing the payment of costs; and full inquiry is to be made into their sufficiency, and proper time allowed for it. The member may, if he please, decline to defend his return; and the voters may, on petition, become a party to oppose or defend the return. As a much greater number of petitions will be presented to Parliament in the ensuing Session for setting aside the election of members than on any previous occasion, An important limit is put to the exwe think it may be useful to give an out-pense of a petition, by the 14th section of line of the manner of proceeding on them. the act, re-enacting the 1st section of the Previously to the tenth year of George 57 G. 3, c. 71, which provides that lists of the Third, petitions could only be pre- votes intended to be objected to, with the sented against undue elections by electors heads of objections to each, shall be deor candidates, and such petitions were livered to the Clerk of the House of Comdecided by the House at large; but by the mons, and shall be open to inspection, and 10 G. 3, c. 16, commonly called the Gran- evidence is to be confined to the objections ville Act, a new mode of disposing of them particularised in the lists. was introduced. This statute, and many subsequent acts, were repealed, but reenacted and consolidated by the 10 G. 4, c. 22, which is now the act by which election petitions are regulated. By this act, whenever a petition, complaining of an undue election of a member, shall be presented to the House of Commons, within such time as shall be from time to time limited by the House, a day and hour shall be appointed by the House for taking the same into consideration, and notice thereof given accordingly; and this time, within which election petitions are to be presented and so to be limited, is always fourteen days, from an order passed by the House at the beginning of every session. This time is strictly observed, and no petitions of this nature, presented after such time, will be received. On the time appointed by the House for taking the petition into consideration, if the petitioners do not attend, the order will be discharged; and recognizances are to be entered into by the petitioners fourteen days after the petition is presented in the sum of 1000/., with two sufficient sureties VOL. XV. No. 428. When the day arrives on which the petition is to be taken into consideration, the House will proceed to the order of the day for that purpose before any other business. The Serjeant at Arms is to go with the mace to the places adjacent and require the attendance of the members; the House is then to be counted; and if there are not 100 members present, the House shall adjourn until the following day, and so from day to day until there shall be a sufficient attendance of members. If 100 members shall be found to be present, the parties, their counsel, or agents, shall be ordered to attend at the bar, and then the door of the House shall be locked, and no member shall be suffered to enter into or depart from the House until the parties, their counsel, or agents, shall be directed to withdraw; when the door shall be locked, the names of all the members of the House, written on distinct pieces of paper, being all as near as may be of the same size and folded up in the same manner, shall be put into six glasses to be placed on the table for that purpose, and then the Clerk shall publicly draw out of the six A 2 Practice on Election Petitions. shewn and verified on oath; the committee is not to sit until all are met, and on failure of meeting within one hour, ad glasses the pieces of paper and deliver the same to the Speaker, to be by him read to the House, and so shall continue to do until thirty-three names of the members pre-journment is to be made. The chairman sent be drawn. But if the name of any is to report absentees, who are to be cenmember who shall have given his vote at sured by the House, unless they shew on the election, or who shall be a petitioner, oath good cause of absence. If more than or against whose return a petition shall two members be absent the committee be then depending shall be drawn, his shall adjourn, and if any committee is rename shall be set aside, and not entered induced to less than nine, by non-attendance the list of names drawn. Members above of its members, it shall be dissolved; and sixty years, or who have previously served these committees are not dissolved by any on a select committee, shall be excused, if prorogation of Parliament, but shall be ad. they require it; and any member is at journed to twelve o'clock on the day imliberty to offer any other excuse, and the mediately following. opinion of the House shall be taken thereon. If any member be excused, another shall be drawn, so that the number of thirtythree members shall be completed; and then, and not till then, the House shall proceed to other business. As soon as the thirty-three members shall be so chosen, the petitioners and sitting member, their counsel, or agents, shall withdraw, together with the clerk appointed to attend the select committee, and the petitioner and the sitting member shall alternately strike off one of the thirtythree members until the number shall be reduced to eleven, and the clerk within one half hour afterwards shall deliver into the House the names of the eleven members, who shall be sworn at the table to try the matter of the petition. The committee so chosen shall meet within twenty-four hours after the appointment, unless a Sunday, Christmas-day, or Good Friday shall inter vene. The committee on their meeting shall elect a chairman: they are to be attended by a short-hand writer, and are empowered to send for and examine persons, papers, and records, and to examine witnesses upon oath; and such witnesses, if misbehaving, may be reported to the House, and committed to the custody of the Serjeant at Arms. The majority of the committee is to determine the merits of the petition, and to report their decision to the House; and to report whether the petition or the opposition to it is frivolous and vexatious, or whether the return is vexatious or corrupt. The duty of attendance on these committees is enforced with great strictness. They are not to adjourn for more than twenty-four hours without leave of the house, unless a Sunday, Christmas-day, or Good Friday intervene; a committee-man is not to absent himself without leave obtained from the House, or on special cause The important question of costs is also provided for to a certain extent by this act. If a petition is reported frivolous or vexatious, the party who shall have opposed it shall be entitled to recover from the persoas who signed the petition full costs: if the opposition be reported frivolous or vexatious, the persons who signed the petition shall recover from the persons opposing the petition full costs. These costs are to be taxed within three months after the trial of the petition, by a clerk of the House, and one of the masters in Chancery, clerks in the Court of King's Bench, prothonotaries in the Common Pleas, or clerks in the Exchequer. The costs are to be taxed as between attorney and client, and are to be recovered by action of debt in any Court of Record. It is to be observed, that in most petitions the great practical question is the one of costs. As they are frequently very heavy, it is of great importance to consider, not only whether a petition or an opposition will be successful, but whether it will be pronounced frivolous and vexatious. It is almost impossible to lay down general rules on this subject, as the particular circumstances alone will be taken into consideration by the committee. But it may be observed, that the opposition by a sitting member will very rarely be reported frivolous and vexatious.a Irish petitions, in some respects, differ from English. Lists of the names of all voters to which either party objects must in like manner be interchanged, and the grounds of objection must be specified and particularised. But in Irish petitions a commission to Ireland to examine witnesses may be moved for, if notice of the intention is given on the petition being pre a Rogers Prac. on Elec. 222, ed. 1837. Practice on Election Petitions.-Close of the Vacation. 3 sented. This commission is to be moved | own assent or dissent, and that such assent for in the committee; but it is entirely or dissent shall be recorded in the minutes discretionary with them whether they grant of the committee. or refuse the application for the commis- The bill intending to effect this change sion. If the committee consider it neces-will probably be introduced in the apsary they shall appoint the commission in proaching session; but we much doubt of the following manner. In the presence the success of the plan. of the committee and of all parties interested, the names of three barristers in Ireland, of six years standing, who have consented under their hands and seals to become commissioners, shall be delivered to the chairman of the committee by each of the parties, and a list of the names being made, the several parties, beginning with the petitioners, shall, in the presence of the committee, proceed alternately to strike off a name until the number is reduced to two. When these two are chosen, a third, who is to be the chairman, shall be appointed by the several persons interested if they can agree; but if not, then the committee itself may nominate any barrister of the same standing. In other respects the practice on Irish petitions in no way differs from petitions against a return from any other part of the United Kingdom. It is proper to mention that the subject of controverted elections has recently been referred to a select committee of the House of Commons, who have made a report on the subject, (and a bill was brought in last session founded on it,) in which a different course is recommended. It is here proposed that each election committee shall consist of five members only, and that all members capable of serving shall serve in their turn; that the Speaker shall, at the commencement of every session, nominate three barristers of not less than seven years standing, and with a salary of 2000l. a-year each, to fill the office of assessors to such THE CLOSE OF THE VACATION. Michaelmas Term began on Thursday, and during the whole of this week there has been a constant influx of lawyers into town. The long-silent courts and squares of the Inns of Court again resound with hasty and business-like steps; the air is filled with legal sounds and enquiries. We catch, as we pass, some such words as these at every turn:-" Will you undertake to stay proceedings?" We have fixed the consultation for nine on Monday." Costs to be taxed on Thursday next.' "I shall certainly move to dismiss the bill next seal, if some step be not taken." "We must get a rule nisi, at any rate." Or we are sure to hear some such talk as the followWhen did you 44 ing:-"How are you? MAY BE ALTERED BY PAROL. committees, such nomination being subject HOW FAR WRITTEN CONTRACTS to the confirmation of the House; that one of these shall assist at the deliberations of every election committee, presiding as chairman, but without power to vote, and that in all cases in which there shall be a difference of opinion in the committee, the assessor shall remain with the committee while strangers are excluded; that he shall, before any division, state the question at issue to the committee, together with his opinion thereon; that he pronounce the decisions of the committee, declaring his 45 G. 3, c. 106, s. 5. d 42 G. 3, c. 106, s. 4. e Ordered to be printed July 27, 1836. THE questions to which the Statute of Frauds has given rise, may well be deemed interminable, when we find that after a lapse of more than a century and a half, such a primary question as the above is still under discussion. We draw the attention of our readers to it, because the Statute of Frauds is of daily application, and no one is entitled to feel full confidence in himself with reference to a very large class of transactions, who is not extensively acquainted with the cases which have been decided upon its enactment. How far written Contracts may be altered by parol. will appear that the Court thought the plaintiff entitled to recover under the original agreement; and consequently ascribed no effect to the parol agreement to postpone the delivery, as stated in the second count. "In the present case," said Lord Ellenborough, "there exist two indicia, pointed out by the statute; viz., a contract for sale in It has recently been alleged that there is some discrepancy amongst the decisions upon the above question; and that in certain cases in which the Statute requires writing, the Courts have given effect to verbal alterations of written agreements: hence arises the importance of reviewing the past, and ascertaining the general rule of law as means of avoiding future infringe-writing, and a part-performance; so that ments on established principles. We are, however, always anxious to vindicate former decisions, because we regard their integrity as of great public importance, and on this account we purpose to examine the cases which have been impugned, before we enter upon those which afford a partial answer to our question. "In Cuff v. Penn," said a very learned Judge recently, and some other cases relating to contracts for the sale of goods of the value of 107., which the Statute of Frauds requires to be in writing, it has been held, that the time in which, (by the agreement in writing,) the goods were to be delivered, might be extended by a verbal agreement, but I never could understand the principle on which those cases proceed; for a new contract to deliver within the extended time must then be proved, partly by written and partly by oral evidence." Now we venture to think that the case alluded to, if closely examined, will not be found to fall under this animadversion. It was an action by the vendor against the vendee for not accepting the residue of a certain quantity of bacon which the latter had purchased under a written agreement, and some of which had been delivered to him. It appeared that the contract was for the delivery of it on the 20th of April, and that the part which had been accepted, had not been delivered till the 21st of April; that after the 20th, the defendant verbally requested the plaintiff not to press the rest upon him, meaning that he should be discharged from taking it at all,- and to this the plaintiff assented, not, however, in this sense, but in the sense of not pressing it upon him at present; which the Court thought the true meaning; and the Court held, that this verbal understanding did not prevent the plaintiff from recovering. not only the literal intention of the statute, but the spirit also, is satisfied. The objection then, does not found itself upon a non-compliance with the provisions of that statute, but is more properly this, that an agreement once made in writing, cannot be varied by parol. If this agreement had been varied by parol, I should have thought, on the authority of Meares v. Ansell, that there would have been strong ground for the objection. But here what has been done, is only in performance of the original contract." What is this but saying that the Court considered that the rights of the vendor stood upon the original agreement, and that the defendant was not entitled to object to the postponement of the plaintiff's offer to deliver the bacon, to a later period than was mentioned in the agreement, because the postponement was at his own request, and for aught that appeared, perhaps the plaintiff was ready to make that delivery at any time. The case may be stated in this form; "I have bought," says the purchaser, "bacon of you; the market has fallen: you have delivered me more than I want; do not press the rest upon me at present:" to which the seller in substance replies "I will not:" in the end, the purchaser says " now I will not have the rest at all, and you cannot compel me, because we have altered the time for delivering it, and the new stipulation is not in writing." To which the seller replies, "I stand on the original agreement; I have postponed the delivery only for your accommodation; you cannot found a right to break the contract upon my forbearance to insist upon its strict and literal execution." In the course of his judgment, in Goss v. Lord Nugent, Lord Denman also refers to this case, and to that of Thresh v. Rake,d There were two counts in the declara- as inconsistent with the general tenor of tion; the first framed on the original agree- the decisions. The latter case was decided ment, the second stated what subsequently by Lord Kenyon, and we have great satispassed as a new agreement. Now if the judg-faction in believing that a careful examinament of Lord Ellenborough is examined, it tion of the facts will be sufficient for its a Mr. Justice Parke in Goss v. Lord Nu gent, 5 B. & Ad. 64. b 1 M. & S. 21. 5 B. & Ad. 58. d 1 Esp. 52. |