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anyone ask a carpenter to repair his carriage when he could get a coachmaker to do it? Why, then, should we employ laymen to try a long and difficult cause, when we have got an expert Judge at hand, trained and paid for the work, who would do it much better, and in half the time." There is doubtless a great deal of good sense in this, but the view which the public take, and the view which practical lawyers take, is widely different. For example, the Saturday Review of last Saturday says that "jurymen are quite as much an essential part of the judicial establishment as the Judges themselves," and that "it is unnecessary to quote Blackstone in support of the proposition that the participation of the public in the administration of justice is of the utmost importance. Chief Justice Cockburn lately expressed the conclusion on which all authorities are agreed when he said that a jury assisted by a Judge is a far better tribunal for the elucidation of the truth than a Judge unassisted by a jury."


Mr. Brown, taking a shrewd lawyer's view of the Orton swindle, says that had it been left to Lord Chief Justice Bovill, or to the three Judges of the Queen's Bench to decide the matter, it would have been greatly shortened. To quote Mr. Brown's vigorous language, In truth the case presented to every experienced lawyer such staring and unmistakeable marks of fraud and imposture from the very first, that if the civil case had been tried by the late Chief Justice Bovill instead of a jury, there is no doubt that that very acute and penetrating Judge, who had himself been counsel in the Smythe imposture, would have dismissed the case after the cross-examination of the ignorant impostor, who neither knew the native tongue of Roger Tichborne, nor the name of his mother, nor the situation of his estate, nor the books he read at school, nor the name of his favourite game, nor the face of his sweetheart. So it is pretty plain to those who watched the criminal trial, that if the Judges of the Queen's Bench had had to decide it, the evidence would have been greatly shortened by an intimation that a great deal of it did not weigh a feather, and no reply or summing up would have been called for."

We think that in advancing these arguments Mr. Brown has altogether forgotten that there are others besides lawyers to be satisfied, and that a finding which recommends itself to the logical intellect of a trained advocate may utterly fail in obtaining acceptation at the hands of the multitude. Some of the "fools and fanatics" referred to by the Lord Chief Justice are even now in the face of the verdict deliberating over some insane memorial to Government for the purpose of obtaining an inquiry into the conduct of the Judges at the late trial. How much wider would the clamour have been had no jury intervened between the Bench and the public!


It is to be regretted that there should be differences of opinion upon a subject which must be dealt with, but we are sanguine that a happy middle course may be taken. We do not consider that juries can be dispensed with or that less than seven jurymen should be allowed to give a verdict in any case whilst a larger number should be required to be unanimous in a criminal case. Mr. Brown says one does not see why eight Englishmen should not be enough to convict a villain as well as eight Scotchmen." Convicting villains, however, is not the only function of juries in criminal cases: innocent people are occasionally arraigned, and the question is how best to secure the safe administration of jusThis is a subject for the careful deliberation of Parliament on a measure introduced by the Government.



THIS report is by no means the least interesting of the series, dealing as it does with the question which was more agitated a short time ago than it is now, whether tribunals of commerce should be established in this country. The preface to the report must satisfy everyone that the subject has received the most thorough investigation. Inquiries have been made of authorities abroad and at home, with a view to ascertain how commercial courts work in foreign countries, and what the feeling on the subject is among commercial men in this country. While the Commissioners were prosecuting these inquiries we took occasion to publish the views of a gentleman familiar with the tribunals in France, and he was in the main decidedly of opinion that their operation is by no means satisfactory, even to commercial men, whilst the constant conflict between courts in different localities in matters of law, earned the well-merited contempt of the legal profession. The Judicature Commissioners have considered the question in all its bearings, and they have found that in those countries where hitherto the commercial element has predominated in the court, there is now a desire to give controlling, or at least, guiding power to a legal member. In the best models which have been examined the president of the court has been a lawyer, and the lay members of the court have acted more as assessors than as Judges, although having the power of Judges equally with the president. The Commissioners evidently consider that this is so near an approach to the courts of this country as constituted when assessors assist the Judge, that they recommend that special courts for the trial of commercial

causes should not be established. We will go into their reasons more fully in a moment, but, before doing so, we will look at the views of the dissentient members of the Commission.

The lawyers upon the Commission are almost unanimous-Lord PENZANCE alone is unable to sign the report. "I am not satisfied," he says, "that tribunals might not be established consisting of commercial men, with adequate legal assistance, capable of settling commercial disputes in a satisfactory manner at greater speed and at much less cost than at present." His Lordship then refers to the "well-known fact" that in the large majority of commercial disputes the parties avoid the courts of law and resort to private arbitration, as strong to show the need of some such tribunals. We cannot agree with this. What the commercial community has to complain of is the delay attending the settlement of their disputes by the courts of law. It is, indeed, marvellous that they should have been so long suffering, and it is also surprising that lawyers themselves have not made some great effort to recommend the ordinary process to the public by obtaining an increased judicial staff, or rearrangement of the legal year, so as to make justice speedy, whilst the administration of the law was made profitable to its practitioners. Had tribunals of commerce, in which anybody could have conducted causes and had audience, been recommended and established, the legal profession would have suffered justly for their default in not taking steps to improve the machinery of which they indeed are a part. The great step, however, has been taken by Lord SELBORNE. As we have more than once pointed out, the Judicature Act has done all that is to be done to render justice speedy, and to give assessors and courts of arbitration so that technical matters and matters of account may be dealt with and decided by the light of more practical knowledge than can be obtained from the chance circumstance of a juror having special information-a circumstance which is far from common, although by no means infrequent.

Sir SYDNEY WATERLOW has taken the suitor's view of the question from the old standpoint. He complains that "those who support the present system of trying mercantile disputes seems to regard them all as hostile litigation. . . . The present system too frequently works a denial of justice, or inflicts on the suitor a long-pending worrying law suit, the solicitors on either side pleading in their client's interest every technical point, and thus engendering a bitterness which destroys all future confidence, and puts an end to further mercantile dealings." We hardly know what Sir SYDNEY expects to arrive at by Commercial Courts, but most certainly those cases which by their nature excite hostile feelings would continue to do so wherever disposed of. A vast number of actions are brought during the year in this country for breach of contract; the causes of the breach are to be found perhaps in the state of the markets, and where the construction of the contract would be bona fide questioned in one case, it would be raised malâ fide for the purpose of evading liability in fifty cases. Parties who are injured by the failure of other parties to perform their contracts are by no means disposed to regard the latter as friends, and when solicitors plead, as Sir SYDNEY ingenuously puts it, "in their client's interest," every technical point, they undoubtedly do so acting under instructions. We are confident that no respectable firm would care to load a client with the costs of arguing technical questions, if it was not the desire of such client to take every advantage of his opponent which the law allows. Probably Sir SYDNEY WATERLOW has formed his opinion from some individual case coming within his knowledge, but if he had consulted a lawyer in large practice like Mr. HOLLAMS he would have been told what we have said it is only in the small minority of cases that commercial disputes do not arise out of a desire on the one side or the other to escape a liability or obtain an advantage. And we remember that one of the great objections to French tribunals, which was advanced in these columns was, that the merchant Judges are generally men with large connections and business relations, and that, consequently, their personal friendships and business interests are regarded as influencing their decisions, thus showing that commercial causes generally admit of sides being taken as in a hostile encounter.

With every respect for the judgment of Mr. AYRTON we cannot help thinking that he has taken an entirely erroneous view of the general question. He says, "It appears to me that when a dispute arises in the course of a commercial dealing the compulsory settlement of it by a tribunal may be regarded as only a continuance or a conclusion of the transaction, and that it is unreasonable to insist that the parties interested shall as a condition of having their dispute determined, be required at an enormous cost and inconvenience to themselves, to create a precedent for the benefit of society, and to add a rule of law to a commercial code." The passage which we have italicised shows how wrong a view may be taken of the ordinary litigation of our courts. Mr. AYRTON evidently thinks that every case which goes to trial raises some point which can be carried to a court sitting in banco, and that justice cannot be had in disputed questions of fact without payment of the penalty of settling a precedent. Of course it would be absurd in these columns to show at any length the utter absurdity of this idea. Very considerably more than two-thirds of the causes which come into court at nisi prius are settled by the verdict of

the jury, and are never heard of again. Many others are heard of in banco only on motions for new trials, or to enter the verdict, which do not go beyond the first stage; and it is the small minority which go to make the law by forming precedents which are recorded in the law reports. Again Mr. AYRTON seems to us wholly wrong in considering that legal assistance is simply a necessity of the courts as at present constituted-to protect suitors against each other, and against the abuse of power by the Judge. If he imagines that before a tribunal of commerce suitors would not need protection against each other and against the caprices of the Judges, we think he is greatly in error; and in all probability with the power of appeal which would exist, as many cases would find their way into the ordinary courts of law as now go in their usual course into banc and up to the higher courts of appeal. It is a relief to turn from these conjectures to the practical treatment of the subject by the Commissioners who assent to the report. They consider that all the advantages which could be gained by the establishment of tribunals of commerce will be obtained by giving mercantile assessors to the courts, and go as far as to recommend that in all cases heard with assessors in which appeals are allowed power should be given to the judge of the court of appeal to call in the assistance of like assessors. This is the solution of the whole difficulty. We do not believe that in cases in which private arbitration is had recourse to the result can be so satisfactory as a decision of a properly constituted legal tribunal. Speedy procedure and commercial assessors being given, such tribunal must hold its own against all competition. We have stated the pith of the report and the objections to its recommendations. It will be found in extenso in another column.


THE decisions in Ellis v. Silber (28 L. T. Rep. N. S. 156) and in Ex parte Motion, Maule v. Davis,(28 L. T. Rep. N. S. 906; on appeal, 22 W. R. 225) are calculated to determine somewhat the limits of the jurisdiction in bankruptcy under sects. 66 and 72 of the last Act in questions between the trustee and third parties. To understand what Ellis v. Silber establishes, it must be premised that with every bankruptcy there devolve upon the trustee (1) a certain number of assets in the hands of the bankrupt, (2) a certain number of claims on persons connected before the bankruptcy with the bankrupt in business, (3) a certain number of liabilities to the same class of persons. In what forum or forums a trustee is to pursue the claims numbered (2) is a point of some importance, and the two cases cited above bear particularly upon it.

The case of Ellis v. Silber (ubi sup.) was this. A claim was made by the trustee of a bankrupt's estate upon a former partner of the bankrupt for compensation for improperly dissolving the partnership. This claim the trustee attempted to prosecute by a bill in Chancery, and a demurrer to the jurisdiction was filed, a course always adopted wherever the Bankruptcy Act gives jurisdiction to the Bankruptcy Court: (Stone v. Thomas, L. Rep. 5 Ch. App. 219; 22 L. T. Rep. N. S. 359). On the criterion adopted in Ex parte Anderson, re Anderson (L. Rep. 5 Ch. App. 481; 22 L. T. Rep. N. S. 361), to determine whether the Bankruptcy Court had jurisdiction or not, viz., "Is or is not the question in the present case one which it is necessary to decide with a view to the distribution of the bankrupts' estate," it is quite clear, the matter in dispute in Ellis v. Silber was within the jurisdiction of the Bankruptcy Court. In Anderson's case the trustee desired to recover some pictures which had got into the hands of a third party, and if that had to do with the distribution of the assets of a bankrupt pari ratione had the trustee's claim in Ellis v. Silber. In Ex parte Motion the same criterion of jurisdiction as in Ex parte Anderson (ubi sup.) was taken by the Chief Judge who held that a claim which, if successful, would produce assets was a question which had to do with their distribution. Clearly on the tests adopted in Ex parte Anderson and Ex parte Motion the claim made in Ellis v. Silber was within the jurisdiction of the Court of Bankruptcy. The decision of Lord Selborne that Ellis v. Silber was a proper case for the courts of equity (which amounts to a denial of bankruptcy jurisdiction: Stone v. Thomas, sup.) is, therefore, of considerable importance, because it displaces at once the tests by which, since Anderson's case, bankruptcy jurisdiction has been measured. In his decision the Lord Chancellor drew a distinction between questions which arise because a bankruptcy has happened, e.g., the payment of dividends, &c., and questions which arise from other sources than that event. Such a distinction the following extract from his judgment clearly defines: "There was no case cited and no clause quoted from any Act of Parliament to the effect that whenever the trustee of a deed or a trustee or assignee in bankruptcy has a demand against a third person which, but for the bankruptcy, would be proper to be prosecuted in a court of law or equity, the jurisdiction of the court of law or of the court of equity is, as against that third person, transferred to the Court of Bankruptcy. I apprehend that there is nothing whatever in the Acts relating to bankruptcy which in an ordinary case, not governed by the special clauses of the Act, has any such effect." The result of these words

is clearly to except from Bankruptcy jurisdiction all claims and demands and questions which, if no bankruptcy had happened, would have been tried elsewhere. This seems to point to the test of bankruptcy jurisdiction as being this (creditors coming under special provisions), "Would the question have been tried with the debtor as plaintiff or defendant if the bankruptcy had not taken place?" This view of Lord Selborne's words is borne out by the remainder of his judgment.

"That which is to be done in bankruptcy is the administration in bankruptcy. The debtor and the creditors as the parties to the administration in bankruptcy are subject to that jurisdiction. The trustees or assignees, as the persons entrusted with the administration, are subject to that jurisdiction. The assets which come into their hands, and the mode of administering them, are subject to that jurisdiction, and there may be, and I believe are, some special classes of transactions which, under special clauses of the Acts of Parliament, may be specially dealt with as regards third parties. But the general proposition that whenever the assignees or trustees in bankruptcy, or the trustees under such deeds as these, have a demand at law or in equity as against a stranger to the bankruptcy, then that demand is to be prosecuted in a Court of Bankruptcy, appears to me to be a proposition entirely without the warrant of anything in the Acts of Parliament and wholly unsupported by any trace or vestige of authority."

Lord Selborne, it will be seen, takes as the subjects of bankruptcy control (a) the debtor, (b) the creditors, (c) the trustee, (d) the assets which come into the trustee's hands. He certainly excepts the second head of our classification of the bankrupt's effectsviz., a certain number of claims on persons connected in business with the bankrupt-from the bankruptcy jurisdiction. And this exception, which must have been made advisedly, is perfectly consonant with reason; for while creditors could, if unrestrained, absorb the assets and so defeat an administration in bankruptcy, it is very clear those on whom the trustee alone has claims can do nothing of the sort. The same rule of administration prevails with respect to estates in the hands of the Court of Chancery, against which the creditors prove, and against the debtors to which actions have to be brought.

So clearly does Ellis v. Silber displace the test laid down in Anderson's case as the test of jurisdiction, that Lord Selborne expressly shifts the ground on which Ex parte Anderson rested, and places it on the submission of the holder of what were claimed as assets to the bankruptcy, viz., on the ground that that person "had come in and made certain arrangements as to the pictures in dispute with creditors of the bankrupt, and therefore the matter was prima facie brought by his own submission and his own acts under the administration in bankruptcy." Ellis v. Silber may therefore be considered (1) as setting aside the authority of Ex parte Anderson; (2) a demurrer to the jurisdiction being always entertained in a court of equity, where there is a concurrent jurisdiction in bankruptcy, as establishing that the trustee of a bankrupt estate, must, unless in some cases specially provided by the Act, pursue against debtors to the estate equitable and legal remedies. A similar claim was discussed in Ex parte Motion, Maule v. Davis. The object of the motion was to set aside a sale made by an assignee of a former bankruptcy under a decree in Chancery, and then to carry out the decree by another sale, on the allegation that the trustee of a second bankruptcy considered if the property were fairly sold a considerable sum would come to him and the creditors. The Chief Judge sitting in Bankruptcy granted the relief desired, but on appeal it was held that the Court of Bankruptcy had no power to entertain the cause, clearly one of the same nature as Ellis v. Silber and Ex parte Anderson, viz., a demand by the trustee against some third persons, which, if successful, must swell the assets. Sect. 72," said Lord Selborne, the Lords Justices concurring, "gives the Court" (of Bankruptcy) " a very large authority to decide such questions as it may consider expedient and necessary to decide for the proper purposes of the administration in bankruptcy; but it does not, as we understand it, at all enable the Court of Bankruptcy to draw compulsorily within the sphere of its jurisdiction property or the owners of property not vested in the assignee, and not originally subject to the administration in bankruptcy.' That the above case includes in its principle the simple one of a legal claim by the trustee on a person not a creditor as well as a complicated equitable claim on the same description of person, is very clear from the observations made during the argument. "If a bankrupt claimed to be the owner of an estate, you contend," asked Lord Justice James, "that the Court of Bankruptcy could not be the proper tribunal to try that question, but an action of ejectment must be brought or a bill filed ?" Lord Selborne on this remarked, "Certainly I should hold that." After these two decisions it will be very difficult for the bankruptcy courts to absorb into themselves much of the jurisdiction they continually absorb by injunction. By a very strained construction of these cases bankruptcy courts may perhaps retain a concurrent jurisdiction in matters of the nature therein adjudicated upon; but in such a case, it ought clearly to be remembered, when injunctions are applied for, that one court cannot transfer a cause to itself from a court of concurrent jurisdiction.

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A NEW Serial publication has just issued from the Baltimore press entitled "The Bench and Bar Review," and its first article is entitled "The Bar in England and France." Therein we find the following estimate of the present constitution of the English Bar, its capacity, and its work:

We feel a great difficulty in speaking of the actual practitioners at the Bar of England. Never at any period within a century and a half was the Profession at so low an intellectual ebb as latterly. It is not that there is any deficiency of the day labourers, the plodding formalists of the Profession. These exists in greater numbers, and are probably as competent and well read in the lore of the blue books and practice cases as any of their predecessors. But superior intellects and brilliants talents are, in our day, altogether wanting. There is no Erskine, no Murray, no Law, no Romilly, no Brougham, no Copley, no Denman, no Follet; we have not even, in our time, a Best, a Garrow, or a Scarlett.

It will scarcely be credited by a lay reader-but the fact is not the less deplorably true-that with the exception of half a dozen men, we can scarcely name a barrister who can now address a jury, in an important cause, with average ability.-Sir Alexander Cockburn was among the best specimens, and among these there is only one who can be called eloquent, and Sir Alexander Cockburn's is the eloquence more of the rhetorician than of the man of fervid and impassioned feeling.

The present Attorney-General understands the practice of the courts well, is an excellent case lawyer, and is generally well-read in his profession. He is a man of subtle and acute intellect, not wanting in courage or selfpossession, and not deficient in fluency, but, albeit most respectable as a lawyer, as an advocate he cannot be compared with the great lawyers.

A man of much more intellectual ability, was Mr. Mathew Hill. In any considerable cause, notwithstanding certain defects of manner, Mr. Hill was a really able and effective advocate. Occasionally, his efforts in this respect have been very masterly and vigorous, indicating a well-stored mind. and a greater degree of reading, research, and comprehensiveness than usually fall to the lot of practising barristers in our day. It may be said that Mr. Hill's efforts smelt of the lamp, that they were marked by the lima labor. Granted that it is so, what does this prove but that no high degree of excellence can be obtained without labour? Men do not become painters, sculptors, or actors, without study, reflection, and perpetual labour. How can they hope, then, to to become advocates d'emblée, or at a bound.

Sir Fitzroy Kelly, from the elevation of Sir Thomas Wilde until the beginning of 1849, had the pick of the best legal business, and always performed his work with consummate acumen, subtlety, and address. The style of speaking of Sir Fitzroy Kelly was eminently legal. His sentences short, clear, and symmetrical; he arranged his facts lucidly, he grasped his details with considerable artistic skill and effect. He was ever chaste, natural, and uninvolved; and without being an ad captandum speaker, or descending to colloquial phrases, could make himself thoroughly understood by a jury. He possessed great judgment and tact, an excellent pleader, a good mercantile lawyer, and generally well-read in the common law of the land, yet, though a clear and dexterous arguer of cases, was not a man of eloquence. To scholarship, Mr. Kelly made no pretensions whatever, though he possessed some knowledge of modern languages, and was toler ably read in English literature. Of a docile nature, and of flexible mind, he was, however, one of those men who can get up any subject on or for a particular occasion, so as to please and satisfy an attorney, if not to carry the court or lead captive the jury.

Sir Alexander Cockburn is certainly a more accomplished and elegant scholar, and much more a man of the world than any one of the gentlemen we have mentioned. Not a very profound lawyer, he is yet so well skilled in the principles of the science, and has so scholarly a knowledge of the civil law, that he can readily grasp any principle of jurisprudence. His intellect is so clear, his power of generalization so rapid and so sure, his felicity of expression so great, that he readily makes himself master of details. In dealing with the passions of men, Sir Alexander Cockburn possessed greater powers than any of his colleagues. To say, however, that he had been a great advocate, unless as great among smaller men, would be incorrect. When not very many years at the Bar he obtained considerable practice, and one of the largest practices before Committees of the House of Commons. In this branch of the law three times larger incomes have been made, than ever have been acquired in the regular pursuit of the Profession. In 1844, 1845, and 1846, Mr. Charles Austin is said to have made on an average more than £40,000 a year. The Hon. John Talbot is known to have made more than £12,000 a year; and juniors who have never attained £200 a year at Westminster Hall, have made their £3000 and £4000 a year, during those three years before committees. This is an exceptional state of things, it is true, owing altogether to the railway mania, but Mr. Austin, from 1832, had steadily risen into the first rank in this parliamentary practice, and therefore it is necessary to say something of such a man.

Unquestionably, Mr. Austin possessed great powers of exposition, and of lucid explanation-he has at command a copious flow of words and of ideas -he is ardent and cool at one and the same time-he possessed the reflective and the perceptive faculties in exceedingly well-balanced proportion, and he is a man, moreover, very well read in ancient and modern literature. But like most suddenly successful men-like men who from small beginnings have grown immensely and speedily wealthy, he was inordinately conceited-indeed, preposterously conceited for a man so generally capable and well-informed.

Of genius or imagination Mr. Austin possessed not a particle, and though a clear, and occasionally an ardent and impassioned speaker, he could not be called eloquent. But the besetting and eminent vice of Mr. Austin was an insatiable love of money. While Sir Alexander Cockburn, by no means a rich man, renounced a most lucrative parliamentary practice to enter the House of Commons, Mr. Austin was known as an immensely rich man, who stuck by his parliamentary practice, and preferred to count his gains, rather than to do the state some service as a senator or a politician.

Of the barristers who are considerable juniors, as it is called-i.e., men who take the burden of cases upon their shoulders, we have not spoken. Many of the most successful of this dull tribe is composed of men who have been bred up as attorneys, attorneys' clerks (not articled clerks), or who have commenced life as errand-boys in an attorney's firm, or as sweepers of offices or chambers, or servers of summonses. Nineteen out of twenty of the men doing second or third-rate business at the Bar, and making from £500 to £1500 a year, are persons who have either been attorneys a few years ago, or the sons, brothers, or cousins of attorneys-or who have married the sisters, daughters, or the female relatives of successful attorneys. A gentleman of scholarlike education, of liberal attainments,

of guileless and unsuspecting nature, just escaped from the university, has no chance with such men as these. There is no fair start for the man of this sort, who desires to know his profession as a science. The smart tradesman who knows it mechanically as a craft, beats him hollow. On a considerable circuit in England, there is a gentleman of twelve years' standing at the Bar, making his £1200 or £1500 a year, who, thirteen or fourteen years ago, travelled the very circuit, which he now follows as a barrister, as a clerk to a great attorney agency house of Lincoln's-inn. In this guise he became acquainted with every attorney and every attorney's clerk through the whole circuit. When called to the Bar such acquaintances and friends were used in a double sense. Then what a knowledge of practice and routine must any man have gained who learned his profession in this manner? It is curious that, while regularly admitted and sworn attorneys must be off the roll for a certain time, before they are allowed to enter as students for the Bar, that an attorney's writing or copying clerk (we speak not of an articled clerk) or the sweeper of an attorney's office or chamber, may enter at once as a student, and may be sworn a barrister three days after he leaves the service of the lowest practitioner in Lyon's, Clement's, or Thavies Inn. If such a system produced Saunderses, or Pattesons, or Maules, or Parkes, or Vaughan Williamses, we could see the benefit of it-if it produced Erskines, or Currans, we might applaud it, but it produces excellence in no one way. It merely enables attorney's clerks, ex-attorneys, attorney's sons and brothers-in-law, brothers, and and cousins, to start with a handful of briefs from the commencement of their career, and to daily acquire, by doing some business of a tenth-rate kind, a certain species of mental and professional dexterity of the very lowest character. The men of this calibre, and there are at least one hundred and sixty or seventy of them in Westminster Hall, making from £300 · to £2000 a year, are essentially neither more nor less than tradesmenjourneyman lawyers, who set about their work in the spirit of mechanics or handicraftsmen. Either this system should be put an end to, or it should be adopted for all. Compel every candidate for the Bar to pass one year in an attorney's office, and the evil-or, more properly to describe it,. the unfair advantage-which a few very illiterate, and not very high-principled, yet well-dressed persons possess, would pass away.

In looking over what we have written, we feel obliged to confess that eloquence and high gifts, generally rare amongst the advocates of England, has now nearly perished from amongst us. It is well stated in a work of considerable research, that one reason of the decay of everything resembling eloquence is the excessive degree of technicality, which pervades every portion of English law. Though we do not deny that the principles of special pleading are based in rigid logic, yet we must admit-with Mr. John George Phillimore-who has published an admirable summary of the Roman law-that the wire-drawn distinctions of special pleading are the disgrace aud the opprobrium of our age. To meander through such mazes would puzzle the subtlest intellect, and tax to the utmost the powers of a really robust, masculine understanding, and sometimes tax such powers altogether in vain. The involved phraseology, the expletives, the synonymes, the pleonasms, the obscure and barbarous verbiage of the modern system of pleading, are really the disgrace of our time and system. These abuses are excrescences of comparatively modern growth on the ancient body of English law, for in the earlier time pleadings were delivered ore tenus at the Bar, and not written. The evil has been much increased by a body of very ingenious and subtle gentlemen acting under the Bar as special pleaders, and it must be averred that for the last half century or more, our courts of justice in England have been far too prone to lend a willing ear to refined and technical points of objection which subtle pleaders below the Bar delight to raise, and pettifoggers at the Bar have a peculiar glory in sustaining in court.

The overgrown mass-the immense, shapeless, and unwieldy body of the English law is an impediment not less formidable to oratory than the technicality of pleading. The volumes of the Statutes at Large now amount, if we remember rightly, to about fifty-three volumes quarto, of about 850 pages each volume. On the construction of these statutes there are annually published about thirty volumes of Reports, containing, also, at an average, from 700 to 800 pages of matter, at a cost of about £2 a volume, or £60 a year to any one who subscribes to a complete set of Reports, beginning with the House of Lords, and ending with the Crown Cases Reserved. How can any one or any ten men master all this enormous or unwieldy mass, or properly digest and common-place it on his mind? Roger North, in his day, when the volumes of Reports were only sixty, spoke of them as innumerable. If he were to revisit the glimpses of the moon, what would he say, finding 600 volumes, containing, down to the end of 1849, 250,000 points of law, or more, as any man may see by a reference to Harrison's or Chitty's Index, or Jeremy's Digest? How can a man be eloquent, whose best days and hours are spent in learning to digest matter, and arrange in his mind, or to learn where to discover, and how to apply this vast mass of legislative verbiage, and the decisions upon it? Talents of a popular kind-the power of giving effect to large and comprehensive views, wither under such a discipline as this. All the fire, energy, and enthusiasm of a young man-all the genius and general principles he has acquired at college, and in the bosom of his family, die within him, smothered and overlaid by the forms and technicalities of a system, narrow, crabbed, and barbarous.

Independently of this, the practical workaday, money getting, and business-like spirit of our time, is against the theory and practice of elo. quence. A man particularly gifted with grace of manner and affluence of expression, is despised by the prig and the formalist, who has thoroughly conned his Chitty and his Archbold, and is looked on with ineffable disdain by the successful railway speculator, or the man or woman who has (what is called within the precincts of the city of London) three stars in India Stock.

The multiplicity and detail of modern affairs, abounding in particulars and small items, also tends to stifle and suffocate everything like eloquence. Ours is an age of debtor and creditor-of profit and loss-of tare and tret -of free trade and barter-of buying and selling-of quick returns and small profits; and men have neither the time nor the taste to make fine phrases as of old. If we have perfected the steam-engine, and created railroads, we have also enthroned a servile, a crouching, and mammon-getting spirit in high places-we have deified dullness and formality, and worshipped mechanism, and drudgery, and cotton spinning, and knife grinding, as though they were things lofty, ethereal, spiritual, and immortal. With such feelings pervading the aristocracy of trade-ay, and the aristocracy of land, and of acres-is it any wonder that the mass of barristers are timid formalists-is it any wonder that they will not speak with decision, and fearlessness, and energetic eloquence, like Erskine-that they shrink from giving their better and nobler thoughts noble expressions-that they are dull and decorous, and dead to the most generous and loftiest impulses? No doubt the times in which we live or vegetate are flat, level, and insipid..

We are fallen on the cankers of a calm world and a long peace; yet we cannot but think that somewhat of the mediocrity of the Profession is owing to a man who was longer at the head of the Bar as Attorney and Solicitor-General than any man within a century. John Lord Campbell, though a sound and well-read lawyer, was neither a gifted nor a highhearted man; neither a scholar nor an orator, nor a distinguished gentleman; and his leaden influence has operated in many ways most disastrously. When eloquence, or even a graceful and fluent elocution, is not prized, men will take no pains-will make no efforts to become successful speakers. Advocates will not labour earnestly to become eloquent when such barristers as the and the lead the Great Northern Circuit of England. We do not deny that there is great ingenuity and skill-a happy facility of dealing with entangled and complicated facts-that there are great judgment, quickness, tact, knowledge of practice and of cases now at the Bar of England; but of eloquence there is none, and of scientific or historic learning very little. Ours is an age of no flagrant wrongs-of no deeds of violence or of rapine-of no great political trials-and the occasion has not, perhap3, arisen to call forth the eloquence of the "coming man." In Ireland two eloquent advocates appeared at the State trials. One, a fine old gentleman of the name of Holmes, then in his 78th or 79th year, and a brother-in-law of Thomas Addis Emmett; the other Mr. Whiteside, the author of a book in three volumes on Italy.

It is possible that in the back rows of the Queen's Bench and Exchequer there are some undiscovered Erskines, Currans, and Broughams; but so long as the system prevails among attorneys of giving the leading causes to Queen's Counsel wearing silk gowns, or rather to those among them who have business in law and equity-the Erskines, the Currans, and Broughams are likely to remain undiscovered. Half a century ago, there were not above twenty silk gowns in the Profession, ten of whom were men of real ability, and the remainder of great professional learning; but now silk gowns are given to men neither of eloquence, of legal learning, nor of high scholarship. Among them there are not nine men capable of leading or

conducting a cause better-many of them not so well-as the many astute and sensible men without a silk gown.

One might fancy that in the criminal branch of the Profession we might find eloquent, ingenious, and able men at the Central Criminal Court. But there is scarcely one man above mediocrity, excepting a very few.

The Bar of England is now a very numerous body. In the beginning of the past year it consisted of over 7000 individuals, and there were called in the previous year 300 gentlemen. The Bar of England at this moment probably consists, to reckon new members, about 8000 members, but the returns cannot be accurately ascertained at present.

In Ireland the Profession of the Bar is relatively greater than in England, and the Queen's Counsel also more numerous. We have no means of know. ing the number of advocates in Scotland. No doubt there is much in success at the Bar to ennoble and gratify the mind, and to attract the eyes of those whose hopes outrun their judgment, but laymen and spectators perceive the spangles upon the robe of the advocate, profoundly unaware that all is not gold that glitters brightly. If the advocate has his triumphs he has also his troubles, and to the vast majority the troubles far exceed the triumphs. Crowds, says somebody whose name and book we forget, but who spoke truly-crowds admire the figures upon tapestry-the splendour of the colours, and the rich intertexture of its purple and gold; but who turns the array to contemplate the jagged ends of thread, rags of worsted and unsightly patchwork of the reversed side of the picture, and yet it is from this side the artificer sits and works-this is the picture as he sees it -the gay outside is for the spectator. Thus it is that we look upon lifeermine, lace, gold, jewels. Rank, station, ambition, glitter in our eyes, and we envy the good fortune of the possessors, and think they must be happy, seeing but the show side of their lives; yet not a life among them that has not, or has not had its rags and tags, and knotted ends, its wrong side, in that in which the artisan has been drudging all his days, until the splendour he has made becomes distasteful, and only serves to enrich the eyes of ignorant lookers-on.



REAL PROPERTY LIMITATION BILL. A Bill intituled An Act for the further Limitation of Actions and Suits relating to Real Property: WHEREAS it is expedient further to limit the times within which actions or suits may be brought for the recovery of land or rent, and of charges thereon:

Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. No land or rent to be recovered but within twelve years after the right of action accrued.· After the commencement of this Act no person shall make an entry or distress, or bring an action or suit, to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, Shall have first accrued to the person making or bringing the same.

2. Provision for case of future estates-Time limited to six years when person entitled to-The particular estate of possession, &c.-A right to make an entry or distress, or to bring an action, to recover any land or rent, shall be deemed to have first accrued, in respect of an estate or interest in reversion or remainder, or other future estate or interest, at the time at which the same shall have become an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been received, notwithstanding the person claiming such land or rent, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in receipt of such rent. But if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent, at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought, by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those

two periods shall be the longer; and if the right | of any such person to make such entry or distress, or to bring any such action or suit, shall have been barred under this Act, no person afterwards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an entry or distress, or to bring an action or suit, for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit, to recover such land or rent.

tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar an estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person or any other person whomsoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such 3. In cases of infancy, coverture, or lunacy at assurance, if it had then been executed by such the time when the right of action accrues, then six tenant in tail, or the person who would have been years to be allowed from the termination of the entitled to his estate tail if such assurance had disability or previous death.-If at the time at not been executed, would, without the consent of which the right of any person to make an entry any other person, have operated to bar such or distress, or to bring an action or suit, to re-estate or estates as aforesaid, then, at the expiracover any land or rent, shall have first accrued as tion of such period of twelve years, such assuraforesaid, such person shall have been under any ance shall be and be deemed to have been effec of the disabilities hereinafter mentioned (that is tual as against any person claiming any estate, to say), infancy, coverture, idiocy, lunacy, or un-interest, or right to take effect after or in defea soundness of mind, then such person, or the per- sance of such estate tail. son claiming through him, may, notwithstanding the period of twelve years, or six years (as the case may be), herein before limited shall have expired, make an entry of distress, or bring an action or suit, to recover such land or rent, at any time within six years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under any such disability, or shall have died (whichever of those two events shall have first happened).

4. No time to be allowed for absence beyond seas. -The time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not in any case after the commencement of this Act be extended or enlarged by reason of the absence beyond seas during all or any part of that time of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims. 5. Thirty years utmost allowance for dissabilities.-No entry, distress, or action shall be made or brought by any person who at the time at which his right to make any entry or distress, or to bring an action to recover any land or rent, shall have first accrued, shall be under any of the disabilities herein before mentioned, or by any person claiming through him, but within thirty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired.

6. In case of possession under an assurance by a tenant in tail, which shall not bar the remainders, they shall be barred at the end of twelve years after that period, at which the assurance, if then executed, would have barred them.-When a

7. Mortgagor to be barred at end of twelve years from the time when the mortgages took pos session or from the last written acknowledgment.When a mortgagee shall have obtained the pos session or receipt of the profits of any land or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him; and in such case no such suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agents, shall be as effectual as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to

redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage.

8. Money charged upon land and legacies to be deemed satisfied at the end of ten years if no interest paid nor acknowledgment given in writing in the meantime.-No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit or proceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments. if more than one, was given.

9. Act to be read with 3 & 4 W. 4 c. 27, of which certain parts are repealed, and other parts to be read in reference to alteration by this Act-7 W. 4 & 1 Vict. c. 28 to be read with this Act.-From and after the commencement of this Act all the provisions of the Act passed in the session of the third and fourth years of the reign of his late Majesty King William the Fourth, chapter twenty-seven, except those contained in the several sections thereof next hereinafter mentioned, shall remain in fall force, and shall be construed together with this Act, and shall take effect as if the provisions herein before contained were substituted in such Act for the provisions contained in the sections thereof numbered two, five, sixteen, seventeen, twenty-three,twenty-eight, and forty respectively (which several sections, from and after the commencement of this Act, shall be repealed), and as if the term of six years had been mentioned, instead of the term of ten years, in the section of the said Act numbered eighteen, and the period of twelve years had been mentioned in the said section eighteen instead of the period of twenty years; and the provisions of the Act passed in the session of the seventh year of the reign of His late Majesty King William the Fourth, and the first year of the reign of Her present Majesty, chapter twentyeight, shall remain in full force, and be construed together with this Act, as if the period of twelve years had been therein mentioned instead of the period of twenty years.

10. Time for recovering charges and arrears of interest not to be enlarged by express trusts for raising same.-After the commencement of this Act no action, suit or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, at law or in equity, and secured by an express trust of a term of years or other estate, or to recover any arrears of rent,or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time which would be limited by law for the recovery thereof, if there were not any such trust.

11. Short title.-This Act may be cited as the "Real Property Limitation Act 1873."

12. Commencement of Act.-This Act shall commence and come into operation on the first day of January, one thousand eight hundred and seventynine.

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2. To what lands the Act applies. This Act shall only apply to land of freehold tenure in England, including such leasehold estates as are hereinafter in that behalf mentioned in such freehold land.

3. Commencement of Act.-This Act shall come into operation on the first day of January one thousand eight hundred and seventy-six, and the time at which the Act comes into operation is hereinafter referred to as the commencement of this Act: Provided always that any orders or rules may be made under this Act at any time after the passing thereof.

4. Construction of Terms of Act.-In the construction of this Act, unless there is something inconsistent in the context, the following terms shall have the respective meanings hereinafter assigned to them; that is to say,

"Person" shall include Her Majesty, her heirs

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and successors, and the Duke of Cornwall for the time being, and a body politic or corporate: "Prescribed' shall mean prescribed by any general orders or rules made in pursuance of this Act: "Land" shall include incorporeal hereditaments, and an undivided share, or undivided shares of land, as "land" is herein defined: "Tenancies" shall include leases and agreements for leases:

"Leasehold estates" shall mean estates held under any lease or underlease granted before there was a registered proprietor of the land demised, or granted by a registered proprietor of such land: "Adverse estate, interest, or title" shall in this Act mean such an estate, interest, or title, whether legal or equitable, and whether in possession, remainder, or reversion, as a court of competent jurisdiction would not compel, authorise, or declare to be conveyed or held in trust for or on behalf of the registered proprietor: "Cautioner" shall signify any person lodging a caveat under the provisions of this Act: "Oath" and "affidavit" shall include solemn affirmation and statutory declaration : "Deed" or "instrument" shall include a private Act of Parliament.

PART I.-Registration of Fee Simple Estates. 5. Where to apply for Registration.-From and after the commencement of this Act any of the following persons (that is to say), (1) Any person who has contracted to buy an estate in fee simple in land, whether subject or not to any prior estate for life or for years, or to any incumbrance: (2) Any person enttiled for his own benefit at law or in equity to an estate tail, or to a base fee, or to an estate in fee simple in land, whether subject or not to any prior estate for life or for years, or to any incumbrance:

(3) Any person capable, either alone, or with, upon, or by the consent, request, or direction of another person, of disposing by way of absolute sale of an estate in fee simple in land, whether subject or not to any prior estate for life or for years, or to any incumbrance :

(4) Any person being registered proprietor of any land in respect whereof any land shall have been allotted under any enclosure, or for which other land shall have been allotted or given in exchange upon any enclosure, or by an order of the Enclosure Commissioners for England and Wales:

(5) Any person authorised by the court to make such application, or whose name the court shall have directed to be entered on the register as registered proprietor: (6) In the case of sales taking place three years after the commencement of this Act, the person hereinafter in that behalf men. tioned:

may apply to the registrar to be registered as proprietor of the land which he has contracted to buy, or to which he is entitled, or of which he is capable of disposing, or which has been allotted, or given in exchange, as aforesaid: Provided, (a) That, in the case of a purchaser under a contract, not executed by conveyance, the vendor's consent in writing to the application be produced to the registrar: (b) That no person having an estate in tail, or a base fee, and who cannot dispose of an estate in fee simple without the consent of a protector of the settlement, shall be entitled to be registered without the consent in writing of such protector: (c) That in cases where the applicant is a trustee without a power of sale, or cannot dispose of the land without the consent, request, or direction of some other person, the person for whom he is a trustee, or whose consent, request, or direction is required, concurs in or consents in writing te the application, or the instrument

declaring the trust, or an instrument signed by the person whose concurrence would otherwise be necessary, authorises the application :

(d) That no applicant having a power of sale only, without any estate of inheritance in the land, shall be entitled to be registered without the consent in writing of all persons, down to and including the persons entitled to the first vested estate of inheritance, whose estates would be displaced by an exercise of the power, unless the settlement authorises the ap plication:

(e) That a mortgagee shall not be entitled to be registered as proprietor without the consent in writing of the mortgagor unless the mortgage be executed after the commencement of this Act, and does not contain a. provision that there shall not be such registration.

6. Registration may be with title absolute or limited, or as proprietor only.-Any such application, may be made, at the option of the applicant. either for registration as proprietor with an absolute title, that is to say, a title good, without any other exception or reservation than those expressly mentioned on the register, or in this Act, or as proprietor with a limited title, that is to say, as good from a date to be mentioned on the register, which date shall in such case be taken as the commencement of the registered title for the purposes of this Act, or for registration as proprietor only, that is to say, without a title, either absolute or limited, in which case the date at which the land shall be registered pursuant to such application shall be taken as the commencement of the registered title for the purposes of this Act. If on any application for registration with an absolute or limited title the registrar shall be satisfied with the title, so as to register the applicant pursuant to his application, he shall register him accordingly; but if he shall not be so satisfied, he shall register him as proprietor only. If, however, the registrar, on an application for registration with an absolute title, shall be satisfied with the title as a limited title, or if the registrar, on an application for registration with a limited title, shall be satisfied with the title as from a more recent date than that applied for, he shall, upon the request of the applicant, register him as proprietor from the date with which the registrar shall be satisfied, instead of registering him as proprietor only. But nothing in this section contained shall entitle any person to be registered as proprietor only, unless entitled, as hereinafter appearing, to be so registered.

7. Particulars and statements to be furnished by all applicants, and to be settled by the registrarsubject to appeal to the court.-Every applicant for registration shall furnish to the registrar, and the registrar shall examine and settle, for the purposes of registration :

First. A correct description of the land to be registered, accompanied (except in the case of incorporeal hereditaments) by a map or plan thereof, and which description may be made by reference to such map or plan. Secondly. A statement of the persons, or

classes or descriptions of persons, who are or may become entitled to such land, and of the estates, powers, and interests which exist, or which may arise or become vested in such persons respectively. Thirdly. A statemont of the mortgages, charges, and incumbrances affecting such lands, or any part thereof. Copies of such description and statements, when settled by the registrar, shall be delivered back to the applicant; any objection to the same, or to any part thereof, shall be made and proceeded with within such time and in such manner as the registrar shall direct, and the registrar shall decide on every such objection, subject to an appeal. by the applicant, if the same be disallowed, to the court.

8. Registrar may require same to be verified on oath.-If required by the registrar, the description of the land furnished by the applicant, and any other particulars which the registrar may deem necessary, shall be verified by oath of the applicant or of persons having sufficient means of information.

9. What the registrar is to be satisfied of on application for registration as proprietor only.Before an applicant for registration as proprietor only shall be so registered the registrar shall satisfy himself, by such evidence as he may think. requisite, that the applicant is prima facie enti tled to the land for the estate and interest claimed by him, and that the applicant, or some person entitled to a prior estate under the same common title is by himself, or by some person for whom he is a trustee, or that some incumbrancer upon the estate and interest so claimed, or upon such prior estate, is in possession or receipt of the profits of such land: Provided that, in cases of compulsory registration under the provision in that behalf

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