plained of is an adverse detention.

*

* *

We think there

fore that the plea is bad as amounting to 'non detinet.""

In reference to another ground of demurrer, the judgment confirms the case of Whitehead v. Harrison, 6 Q. B. 423, upon the point that any special bailment laid in a declaration of detinue is merely surplusage, and not traversable, the gist of the action being the detainer of the plaintiff's goods, which the defendant is called upon to answer.

BANKRUPTCY.

EXECUTION CREDITOR AND ASSIGNEES OF BANKRUPT-RIGHTS UNDER STAT. 6 GEO. IV. c. 16, s. 108, WHERE A FIRST EXECUTION ON A JUDGMENT ON A WARRANT OF ATTORNEY

IS SET ASIDE.

Graham and others, Assignees, &c. v. Witherby and another, 7 Q. B. 491. Ir appeared the bankrupt's goods were first seized under a writ of execution upon a judgment on a warrant of attorney. Whilst the sheriff was in possession under this writ, there came to his hands a second writ of execution, issued upon a judgment obtained in a hostile bonâ fide suit, and without notice of any prior act of bankruptcy. The goods seized were of inadequate value to satisfy the first writ; and after seizure and before sale a fiat in bankruptcy issued. According to Whitmore v. Robinson, affirmed in the Court of Error in the case of Skey v. Carter, 11 M. & W. 571, an execution founded on a warrant of attorney is within the operation of the 108th section of the 6 Geo. IV. c. 16, and not protected against the effect of a fiat before sale. The first process was therefore set aside by this statute. Upon this, the question arose,-whether the now defendants, the execution creditors under the second writ, were entitled to the proceeds of the goods in satisfaction of their writ, which having been issued upon a judgment in an adverse action, was not within that section, or whether the plaintiffs, the bankrupt's assignees, were the parties entitled. This depended upon the effect given to the 108th section,-whether it set aside the first execution wholly, or only to the extent of transferring the proceeds thereof to the assignees. It was obvious that but for the bankruptcy the present defendants would have taken nothing, because, as already stated, the goods seized would have been

wholly swallowed up by the first writ; nor was it doubted that the object of the section manifestly is, to compel the creditor, who had seized under an execution upon a judgment by virtue of a warrant of attorney, to relinquish that seizure, and to bring the proceeds into hotchpot for the benefit of all the creditors, and not to give to a second judgment creditor a preference which he had not at common law. But however much the court, in determining the question before them, were disposed to carry out such a construction, they held they could not do so, since the case of Goldschmidt v. Hamlet (6 Man. & Gr. 187), and more especially the case of Cheston v. Gibbs (12 M. & W. 111). In this latter case the Court of Exchequer, after mature deliberation, decided that the 108th section affects the writ itself; and according to the rule of law there distinctly laid down, the writ on a judgment upon a warrant of attorney becomes void by the issuing of the fiat, so that the assignees may maintain trover against the sheriff if he sells under it, on the ground that, as the writ is void, the goods remain the goods of the bankrupt, and so pass to his assignees. The bearing of that decision upon the circumstances of the present case, where there was a second valid writ in the hands of the sheriff at the same time, chiefly guided the judgment of the court. "The sheriff, then, was bound to treat the first writ as void when the fiat issued; and the moment he so treated it, the writ of the now defendants, which had attached provisionally on the goods, and which was not void under the 108th section, but valid against the assignees and all the world, became absolute, or, so to speak, the first writ; and the now defendants were entitled to be satisfied out of the proceeds of the goods." Judgment for the defendants accordingly.

Short Notes of New Books.

Commentaries on the Law of Suretyship and the Rights and Obligations of the Parties thereto; and herein of Obligations in Solido in England, &c., and on the Continent. By William Burge, Q. C., of the Inner Temple, Esquire, M. A. London: William Benning & Co. 1847.

MR. BURGE has herein contributed a valuable work to jurisprudence. This book is no mere compilation. It is a well written and methodised treatise on the laws of suretyship; and forms a valuable addition to the researches of Story, whose writings those of Mr. Burge in some material respects resemble. It is fitting to allow Mr. Burge to speak of his design in writing the book in his own words. He says—

"The plan of this work, in combining the civil law and the jurisprudence of other countries with the law of England, has been adopted by me, from the conviction that it affords the best means of explaining, understanding, and applying that law. If the execution of that plan shall in any degree confirm and promote the disposition which now prevails, to make general jurisprudence a branch of the education of a candidate for the bar, I shall have evinced my deep interest in, and my sincere attachment to, a profession in which my life has been passed.

"It will be perceived that in treating of the constitution and form of the contract of suretyship, and the rights and obligations of the parties to it, and of their extinction and discharge, many of the rules and principles were equally applicable to contracts in general.

"The law relative to obligations in solido, or joint and several obligations, in some respects so much resembles, and in others is so essentially distinguished from the law relative to suretyship, that this work would not be so complete as it ought to be if it had been omitted.

"It was necessary to treat of certain parts of the bankrupt law, for the purpose of showing the effect of the bankruptcy of the principal or surety on the rights and obligations which were derived from the contract.

"As the law of England differs in many respects from that of other countries, both as to the nature, constitution, and form of the contract of suretyship, and of the rights and obligations of the contracting parties, as to the extinction and discharge of those rights and

VOL. VII. NO. XII.

K

obligations, and on the effect of bankruptcy, it was a necessary part of this work to treat of the particular law which in these cases of conflict should be adopted."

Mr. Burge writes in an easy style, and has a happy facility of sifting his matter, and producing all the grain without the chaff, which usually encumbers the productions of a less disciplined mind. His work extends through every branch of the law of suretyship. The following extract affords a specimen rather of the research and lucidity of the work than of the literary ability of the author. It relates to "Alterations of Contracts."

"An alteration in the obligation or contract in respect of which a person becomes surety, extinguishes the obligation and discharges him, unless he has become by a subsequent stipulation a surety for or consents to the contract so altered. Finiri dicitur obligatio fidejussoria ob alterationem obligationis sive contractûs, pro quo fidejussor fidem suam interposuit, fidejussorem non teneri ex novo contractu, nisi denuò intercedat per interpositam stipulationem.'

Any subsequent addition to, or deviation, or abstraction from the contract, is such an alteration as discharges the surety. Thus, if the buyer and seller agree after the contract of sale to increase or reduce the price originally agreed on, they recede from the original contract, a new contract is substituted, and the surety, whose obligation was in respect of the original contract, is no longer bound. Mutato enim pretio, ex quo consistit substantia, status et natura emptionis, et emptio mutatur." If the buyer and seller alter the subject-matter of the sale, as, if the goods originally delivered are returned, and others are purchased for the same or a greater price than that for which the original goods had been sold, the surety is discharged. Alterantur autem revera initi contractus, quando posteà, vel incontinenti, vel ex intervallo, per certa pacta illis quidquam vel adjicitur vel detrahitur. Quod si igitur venditor et emptor post emptionem paciscantur, de minuendo, vel augendo pretio, recessum est à priore contractu, et nova emptio intercessisse videtur, ideoque fidejussor, qui pro priore contractu intercesserat, amplius non tenetur. Idem est, si posteà venditor et emptor merces alterent, et recepta merce priùs vendita alia pro eodem, vel majore pretio ematur, ut enim pretium, ita et merx de substantia est emptionis, et venditionis." "The surety's liability, when the contract is for letting and hiring, locatio et conductio, will also be discharged, if any increase or diminution of the rent is subsequently agreed on, or any change of the subject hired. Alterato contractu per locatorem, licitum esse fidejussoribus ab illo recedere, eoque minimè obligatos esse."

"The right of the surety to resist any claim which the creditor may make against him, founded on the contract and to insist on his discharge, may be repelled on the same ground as that on which the performance of any other contract may be resisted, namely, that it is not the contract into which he had entered.

"If there be any variation in the contract, made without the surety's consent, and which is in effect a substitution of a new agreement, although the original agreement may, notwithstanding such variation, be substantially performed, the surety is discharged."

We can honestly recommend this book to the profession.

Manual of the Law of Scotland. By John Hill Burton, Advocate, Author of a Treatise on the Law of Bankruptcy, Insolvency, and Mercantile Sequestration in Scotland. Second edition. Edinburgh: Oliver and Boyd. 1847.

THE profession is already indebted to Mr. Burton for several very valuable works on the laws of Scotland. The one before us is the most comprehensive of that production. There are two volumes; one of which treats of "The Law of Private Rights and Obligations," and the other of " Public Law; Legislative, Municipal, Ecclesiastical, Fiscal, Penal and Remedial; with a Commentary on the Powers and Duties of Justices of the Peace and other Magistrates." Both works are admirably written, and afford to the student and the practitioner ample information, written in a lucid style and evincing vast research.

Familiar Exercises between an Attorney and his Articled Clerk on the general Principles of the Laws of Real Property. By Francis Hobler, Jun., Attorney-at-Law. Third edition. London: William Benning & Co., Law Booksellers, Fleet Street. 1847.

A VERY useful and well digested little work in a catechetical form.

The Practice of the High Court of Chancery, as regulated by the General Orders of the 8th of May, 1845. Edited by John Rogerson, a Solicitor of the Court. London: S. Sweet, 1, Chancery Lane, Fleet Street. 1847.

THIS work is carefully done, and we doubt not will be useful to all practitioners in the Court of Chancery.

"The present work," says the author, "as its title imports, is strictly confined to the practice of the Court of Chancery under the Orders of the 8th of May, 1845.

"The important changes effected by these orders entitle them to a separate treatise; and, indeed, they may be more conveniently referred to and considered in that form.

"It was the author's original design (and in which he progressed to some extent) to have embodied the orders in the text; but upon consideration it was deemed advisable to give the orders in a distinct and conspicuous form, as enabling the practitioner more conveniently to consider their effect, with a view to adopting his own construction thereon.

"The work is intended as ancillary to the well established treatises