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The remark is made: “In counties where there are assizes only three times in the year it is inevitable that some prisoners should be kept in detention for more than 16 weeks; but if the three assizes are arranged at equal intervals, the limit of 18 weeks ought not to be exceeded, save in exceptional cases for special reasons.” In 1895 in six cases the detention exceeded 20 weeks.
The Times of Wednesday contained a biography of Sir EDWARD KAY, ex-Lord Justice of Appeal, which is the model of what a judge's biography should be, and which we,
, therefore, reproduce elsewhere. Therein is recorded an anecdote which is of the utmost interest when we remember how strict he was in limiting solicitors to their legitimate costs. Says the biographer :
But both at the Bar and on the Bench he was emphatically a jast man. A story is told of him of a type too rare in forensic annals. A consultation was being held in his chambers in a suit in which many different interests had to be represented. It was not a specially difficult case, but as the estate was large the fees were in proportion, rather to the fund out of which they were to be provided, than to the complication of the questions involved. In the middle of the conversation Kay sent for his clerk. “ How much is marked on my brief ? he asked. The clerk mentioned the sum.
“Far too higb," said the conscientious leader, and he told the clerk to pat down about a third of the amount. As this involved a corresponding reduction in the fees of the other counsel, it is to be feared they did not regard their leader's high principles with unmixed approbation.
Apropos of the foregoing, we do not hesitate to say that perhaps the greatest obstacle to reforms in legal matters is the selfishness of what are called vested interests" and of the Legal Profession. Professional organisations of the newest type are prone to decide questions affecting the administration of justice by the light of their own comfort, profit, and convenience. No course can be more dangerous or more calculated to bring all professional deliberations into contempt.
The steady decrease in crime has certainly been remarkable. The compiler says: “The figures for 1895 appear to show somewhat decisively that the fluctuation was only a minor one, and that the general tendency in crime to decrease still persists. The total number of persons for trial on indict
. ment has fallen from 12,033 in 1894 to 11,516 in 1895, the decrease being almost entirely in offences against property. Offences against property with violence have diminished by 214, against property without violence by 358, forgery and offences against the currency by 15. Indictable offences tried summarily have diminished from 44,248 to 39,302, a decrease of 4946. But the point of most interest is that the crimes which were specially noted as having increased in the years 1892-3-4 have decreased markedly in 1895. The figures for burglary have fallen from 1813 to 1638, fraud from 1158 to 1016, robbery with violence from 333 to 294. Only forgery shows a slight increase, from 230 to 245."
One of the undoubted merits of a High Court in which a strong Bar practises is mentioned by Lord SALISBURY when dealing with sub-commissioners and court valuers in Ireland. His Lordship said :
I gather from what you said—I do not for one moment say what my opinions are-that you have a very considerable distrust of the subcommissioners and the court valuers who are appointed. You may have that distrust quite legitimately. It does not mean to say that they are not honest men-I have no doubt that they are very honest men-but the finding an impartial man is a very much more difficult task. I believe the Irish Government has taken the utmost precautions to have impartial men; but impartial men are not to be found on every wayside. There is a general impression that, if you take anybody with education and set him down as an arbitrator, he will decide impartially between two litigants. He will certainly not do so if the matter is one of great public controversy on which men have taken angry sides. Impartiality is an actual achievement. We are very proud of the impartiality of our judges ; and we have a right to be so; but they are impartial because they are trained, because they act in the presence of a Bar which is constantly watching them and subjecting their action to careful scrutiny, and because they do everything in the full blaze of publicity. This fact should never be lost sight of.
The Criminal Statistics for the year 1895 fortify the view which we have consistently advocated and in which the majority of the judges now concur, that excessive punishment defeats its own object. Crime actually declines in proportion as the sentences are merciful. These are the words of this interesting record :-“This remarkable decrease in crime goes on pari passu with a still further reduction in the length of sentences. In 1895 the number of sentences of penal servitude has fallen from 956 to 803, and the sentences of imprisonment for one year and upwards from 765 to 762.
Ought the Profession to be asked to spare the court futile litigation ? Mr. Justice KEKEWICH appears to think so. In proceedings against the Cheque Bank Limited he said :
Therefore, treating this case as a case of substance, I have no difficulty at all in coming to the conclusion that this balance-sheet is honest and correct, and that the dividend which is proposed to be paid has been properly earned, and may properly be paid.” Then his Lordship proceeded :
But, unfortunately, there is another aspect to the case. The Cheque Bank have no right to complain, but I think the court, as representing the public, has a very large right to complain. No time is wasted in deciding points of law between suitors ; no time is wasted in threshing out the facts which are necessary for the decision of points of law; but time is more than wasted--it is squandered--when it is taken up by bring. ing forward speculative cases like this for some motive, wbich I do not pretend to discern, with a view to bring aspersions against some persons or companies, and when it is supported by such attempts at evidence as we have heard here to-day. That I think one has a right to complain of. I am always vexed, and I am extremely vexed to-day, that the Legal Pro. fession should have been induced to be brought into such a case as this. Counsel must do their duty I know, and make the best of the materials they have, and, unfortunately, if they have no good materials, they are sometimes obliged to make the best they can of bad. But all this fringe --less than fringe- outside ornament--about Mr. Hartmont, and Messrs. Armstrong and Co., and many other things—what they have to do with the case I do not know, the only case really worth raising in a court of law being the one which I have mentioned, and have disposed of on a substantial ground. Unfortunately, a great deal of time has been wasted, and the case is one which does not do very much credit to a court of justiceat any rate, very little indeed to the plaintiff, or those who support him. I think counsel have done their duty, and but for that, perhaps, we should have been here for another day or two. The learned judge seems to draw a distinction between counsel and the Legal Profession, by which we presume he means solicitors. Solicitors must act for clients; counsel must act on the instructions of solicitors. Neither is to say they will not act because the evidence is insufficient. They advise it is so—the client determines to proceed. What would Mr. Justice KEKEWICH have either branch of the Profession do?
The same statistics furnish a beautiful commentary on our delightful assize system. Of 2639 prisoners convicted, 748 awaited trial 2 weeks, 721 from 2 to 4 weeks, 376 from 4 to 6 weeks, 235 from 6 to 8 weeks, 162 from 8 to 10 weeks, 131 from 10 to 12 weeks, 102 from 12 to 14 weeks, 68 from 14 to 16, and 96 above 16. Of 613 prisoners who were acquitted, 19 were in prison over 16 weeks, 16 from 14 to 16, 25 from 12 to 14, 29 from 10 to 12, 43 from 8 to 10, 53 from 6 to 8, 85 from 4 to 6, 147 from 2 to 4, and 196 under a fortnight. This is a table of which any civilised country may well be ashamed.
The etiquette of the Bar places, we contend, members of Parliament under the same rule with reference both to civil and criminal proceedings. On the 22nd June 1858 Lord Hotham, speaking in the House of Commons, said that it was the practice of Lord Chelmsford, who was then Lord Chancellor, while he was at the Bar, to take part in no proceeding of the House of Commons in which he was professionally concerned ; and Sir Henry (Mr. Justice) Keating, who was then Solicitor-General, said he believed that anyone who had that feeling of honour which was common to the whole Bar would decline either to speak, or even to vote, upon a subject in which he had been engaged professionally outside, lest he should, unconsciously perhaps, be influenced by opinions which he had expressed elsewhere.
Lord MacNAGHTEN, in his Bill to amend the law relating to the right of audience of solicitors in the County Courts, seeks to provide that in sect. 72 of the County Courts Act 1888 the expression “a solicitor being a solicitor acting generally in the action or matter” shall include any solicitor who is in the permanent and exclusive employment of the solicitor so acting, and who is instructed to appear in the action or matter by such last-mentioned solicitor.” The 72nd section of the Act of 1888 enacts that it shall be lawful for any party to an action or for a solicitor being a solicitor acting generally in the action for any party but not a solicitor retained as an advocate by such first-mentioned solicitor, or for a barrister, but without any leave of exclusive audience, or by leave of the judge for any other person, to appear and address the court; and it was held in Reg. v. Oxfordshire County Court Judge (70 L. T. Rep. 874) that a solicitor's managing clerk, although in his permanent and exclusive employment and having had in the course of his duty the management of the business of a client of his employer, who was a party to the action, is not, though himself a qualified solicitor, a "solicitor acting generally," &c., within the 72nd section, and looking to Reg. v. Spooner (18 L. T. Rep. 325), decided on the substantially identical words of sect. 10 of the County Courts Act 1852 (15 & 16 Vict. c. 52), it is impossible to question the correctness of the carefully considered judgments of Mr. Justice COLLINS and Mr. Justice CAVE in that case. Lord MACNAGHTEN's Bill is intended to set it aside, but the assistance of the Government will be necessary to the passing of the Bill, and we greatly doubt whether that assistance will be given.
FOREIGN POLICY AND PARLIAMENTARY
CONTROL. The suggestion made by Mr. Swift MacNeill on Tuesday last week and subsequently urged on behalf of the Opposition by Sir William Harcourt, that the Government should not enter into any hostilities against Greece on behalf of Great Britain without the previous sanction of Parliament, illustrates an anomaly in our constitution.
The old personal prerogatives vested in the Crown of making peace, declaring war, and entering into treaties, as, to use the felicitous expression of Mr. Warren (Warren's Blackstone, p. 204), the visible representative of the Majesty of the State,” have been transferred in practice to Ministers responsible to Parliament, and through Parliament to the people at large. Before the Revolution the Sovereigns of this country exercised a valid control over its foreign policy. After the Revolution William III. was his own Foreign Minister. Still in those times foreign policy in its inception was frequently the subject of the advice ard counsel of the House of Commons, with whom lay the power of voting the supplies by which alone “ that policy could be rendered effective." Queen Elizabeth heard with an anger she did not affect to conceal remonstrances on foreign affairs which would not now be addressed by either House of Parliament to the Throne. The inception of foreign policy and its direction have passed from the Crown, not to the Legislature, but to the Cabinet which is a committee of the Legislature. “Now beforehand," wrote Mr. Bagehot in 1872, no one would have ventured to suggest that a committee of Parliament on foreign relations should be able to commit the country to the greatest international obligations without consulting either Parliament or the country. No other select committee has any comparable power, and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarly delicate to rest in the sole charge of one select committee is exceedingly strange. No doubt it may be beneficial-many seeming anomalies are so; but at first sight it does not look right: (English Constitution, Introduction, p. xlii.)
BRIEFS AND THE HOUSE OF COMMONS. In the early hours of Tuesday morning last week, during a discussion to which “ the twelve o'clock rule” did not apply, an, incident happened which has, so far as we know, been left unreported in the daily Press, but which is of great interest in professional circles. An hon. and learned member, intervening in debate, challenged a member opposite to object to his taking part in the discussion or voting on the question before the House, on the ground of which he had by letter given him notice, namely, that he had held a brief in proceedings connected with the matter before the House. The member thus challenged declined to intervene, and the Speaker, being asked for his opinion, referred to a statement of Mr. Speaker Peel, on the 10th Feb. 1893, on a similar point.
“ The House will see,” said Mr. Speaker Peel, “ that on the point of order I cannot stand in the way of the hon. gentleman, to whom reference has been made, bringing on this matter, but at the same time I shall leave it to the Legal Profession to decide wbether it is contrary to legal etiquette for hon. and learned members to take part in debate under the circumstances." On Tuesday morning, however, all difficulty was removed by the statement of the bon. and learned member who had raised the question, that he had never acted in the matter professionally, but had, on the contrary, declined a brief whose acceptance he thought might interfere with his freedom of action in Parliament.
As the etiquette of the Bar is in this matter somewhat more strict than the rule of the House of Commons, that etiquette will be best explained by an answer given by the present Lord Chief Justice to a question put to him
when Attorney-General in the House of Commons on the 10th Feb. 1893 : “It would be contrary to what is understood to be proper professional conduct in England for a member of this House to use knowledge obtained as counsel in a criminal case for the purposes of political discussion in this House. I wish to add that, although I only received notice of the question this morning, I took the opportunity of consulting several of the judges, and the majority of those judges seemed to think that the rule went even further than I have said, and that no counsel should take part in any public discussion relating to any criminal case in which he has been engaged, unless it be under exceptional circumstances calling for explanations and the like."
THE JUBILEE OF THE COUNTY COURTS. A CONTRIBUTOR writes under date March 12 :
“On Monday next (the 15th March) fifty years will have elapsed since the modern English County Courts were brought into active existence by Order in Council (the 9th March 1847), made in virtue of the provisions of the County Courts Act 18+6, and the question naturally arises how this interesting occasion may best be celebrated. One ingenious correspondent of a daily contemporary proposes some public function presided over by the Lord Chancellor, and attended by all the County Court judges and registrars. Without disparaging the impressiveness, and even utility, of such a display, we confess to a preference for a more practical and prosaic tribute to the excellent work done by the statutory County Courts since they took over the contentious jurisdiction of the common law County Courts of pre-Norman origin. The enactment of the County Courts Extension Bill—with modifications which shall be mentioned immediately-would be, in our judgment, a fitting recognition of the position which the County Courts have now attained. The proposal, embodied in the Bill, that the ordinary jurisdic
tion of the County Courts should be raised to £1000 is one for which public opinion is not ready, and which, in view of the necessarily rough-and-ready methods of County Court procedure, is intrinsically undesirable. There could, however, be no objection to an increase in the limit of the equity jurisdiction of the County Courts from £500 to £1000, as the Bill proposes ; and the suggested creation of special circuits, the judges of which are to have £2500 a year, is an admirable
There may, and doubtless will be criticism of the particular districts selected for the receipt of this honour; but there cannot be any dispute as to the propriety of the proposal itself. It recognises the fact that the duties of County Court judges in the great commercial and industrial centres are infinitely heavier than those of their colleagues whose circuits are wholly or largely confined to agricultural districts. It cannot fail, if adopted, to raise the standard of excellence of the County Court Bench. The one qualification necessary is that the ordinary County Court circuit shall be the usual avenue by which the special one is reached. There might be occasions on which, and circumstances under which, this rule should be waived, but these should be strictly exceptional. The creation of special circuits would have a further merit. It might be made a means by which the problem how to satisfy the claims and necessities at once of metropolitan and of provincial suitors might be solved. There would be far less difficulty in the devolution of a substantial portion of the work of the High Court on County Court judges of special qualifications and experience than attends the carrying out of such an experiment under existing conditions.
“ There are many reasons why, in any juridical reforms that may be effected, the County Court system should be called upon to bear some part. The County Court is every year becoming a
efficient tribunal. Occasional relapses notwithstanding, the days have practically gone by when a County Court judgeship could be obtained, without other qualifications, by interest or hack political services. Moreover, for very many years the Legislature has been engaged in steadily extending the jurisdiction of the County Court judges, and, by consequence, their experience and capacity for entering upon more responsible duties. Last, and not least, among the claims of the County Courts to be taken account of in any juridical re-organisation are their antiquity and proved flexibility and adaptability to changing circumstances. It would be superfluous to elaborate the argument from antiquity. No dent of history requires to be told how potent a means of maintaining the dignity and authority of institutions a great past is, provided always that they still possess actual vitality. But the marvellous flexibility of adaptation which the County Court system has already displayed is really the best earnest of the future. Who would have imagined that such a system could have been developed out of the old Anglo-Saxon County Court, with its curious blending of contentious and ministerial functions, and the local Courts of Request ? If these things were done in the dry tree, what possibilities of growth may there not be in the green one?”
new and improved general system for the transaction of litigious business in the shape of the modern County Courts.
Since 18-46 the jurisdiction of the County Court, as established by the Act of that year, has enormously increased.
In 1846 the jurisdiction was only in debt or damages to £20 in contract and £5 in tort.
In 1850 this was extended to £50.
In 1857-58 Probate jurisdiction in certain cases was given. “ In 1862 the Companies Act gave certain powers to the County Court in the winding-up of companies, and its power was further extended by the Act of 1890.
“In 1865 equitable jurisdiction in certain cases to the extent of £500 was given.
“In 1867 High Court cases of contract not exceeding £50 could be remitted to the County Court, and 'in tort where plaintiff had no visible means to pay costs.
* In 1867-69 Admiralty jurisdiction given.
" In 1873 in small intestacies grants of administration could be given to widow or child where estate was under £100.
"In 1880 Employers' Liability Act.
" By no less than thirty other Acts special jurisdiction has been given to the County Courts, and the above list shows the immense increase in jurisdiction which has occurred since their establishment.
“ But not only in jurisdiction have they increased, but also in the amount of business they transact. Even within the last thirty years the growth is enormous. The average number of proceedings for the years 1858-1862 was 797,544, while in 1888-1892 the numbers had risen to 1,068,036. The amount recovered, too, has increased proportionately. In 1858 it was £959,357, but in 1894 £1,859,947. That confidence in the courts has increased with their work, is shown by the number of plaints over £50 which have been entered by consent. For the years 1863-1867 the total number was sixty-one, which only gives a yearly average of twelve, while in 1893-1894 the yearly average had reached 1.298.
“A Bill has been recently introduced into the House of Commons to still further extend the jurisdiction. It is proposed to raise the limit both on the common law and equity side to £1000, subject to a power of removal to the High Court in case of actions over £100. This proposal, if carried out, would practically denude the High Court of its work. The present suggestions seek to create special circuits, on which the work will be brought close up to that in the High Court, and the judges paid proportionately.”
We have received the following letter :I was very pleased with Mr. Laverack's letter in your issue of the 13th inst. in reference to the conduct of work in County Courts, but I should have been more pleased if the same prominence had been given to his letter as was given to your criticism. I have myself been surprised at the antagonism which has for some time been shown by the Law TIMES to County Courts. If the Law Times had been the organ of the London solicitors and the Bar in London alone I could have understood its opposition, as the great aim of these two bodies is centralism of legal business in London ; but being recognised as the organ of the Legal Profession in the provinces as well as London its antagonism is unintelligent to me. Moreover, the apathy of the provincial solicitors in not refuting the erroneous statements which from time to time appear with regard to County Courts is very extraordinary, and therefore it is the more gratifying to find Mr. Laverack coming forward to refute the erroneous statements in the Law Times of the 6th inst. as to the conduct of work in County Courts generally. That such statements may be true in regard to some County Courts I do not dispute, but to my personal knowledge it is a libel upon County Courts in the commercial and industrial districts of Lancashire. I am proud to be able to affirm that in Lancashire, at any rate--and Lancashire is, I venture to think, the most important centre in England--the cases are as patiently and carefully tried, more so, in fact, than at the assizes, and there can be no two opinions as to which tribunal is most popular. Personally I should never issue a writ in a defended matter where a County Court summons was available. But, in order that I may not be set down as a monologist, you will perhaps allow me to point out that your views seem to be entirely refuted by the commercial representative bodies in England, as it is notorious that for several years the Chambers of Commerce in different parts of the country have been passing resolutions in favour of the extension of County Court jurisdiction, and so recently as last week the Associated Chambers of Commerce adopted a resolution supporting the Bill for extending the jurisdiction of County Courts now before Parliament. If the cases in County Courts are disposed of in a rough-and-ready fashion as you allege, how is it that the representative bodies of the commercial world are so anxious to have the
Another contributor sends us the following record showing the development of the County Courts :
“ The old common law County Courts existed solely by virtue of the common law, and were among the most ancient tribunals of this country. Their duties were partly judicial and partly ministerial. When they were first established in England is a matter of much speculation. They had jurisdiction in most civil cases where the amount in dispute did not exceed 40s., and from the earliest times down even to 1816. they held pleas of debt or damages to the extent of 40s., and over some of these causes, by the express words of the statute of Gloucester, enjoyed a jurisdiction totally exclusive of the Superior Courts. About the beginning of the 19th century the work of the County Court ceased to be as efficient as heretofore, and need was felt for a new tribunal more expeditious and less expensive, and at last the old County Court, as a tribunal for disposing of contentious business, fell into complete disuse. About this time, by a series of local Acts, Courts of Request were established, with power to dispose of actions for sums up to £1.), but they were wholly inadequate to the wants of the community, and in 1810 these tribunals were superseded by a
jarisdiction of these courts extended ? Commercial men do not like their cases disposed of in a rough-and-ready fashion, and that is the principal reason for diminution of commercial cases at the Assizes. Business men in the provinces have full knowledge of how the work is done in the County Courts in their districts, and hence the reason for their desire to have the jurisdiction of such courts extended, so that their cases may be tried there as now, with care, economy, and despatch.
You state in your issue of the 13th inst. that your opinion is based upon evidence of judges, barristers, and solicitors. It is extraordinary for judges to confess that the cases tried by them are disposed of in a roughand-ready fashion. Moreover, if the evidence of judges, barristers, and solicitors be reliable, then the serious charges made against the practice in particular courts should be limited to the locality of such courts if not to the particular courts where such objectionable practice exists, and not made the basis of a general charge against County Courts.
You further state, in your issue of the 6th inst., that “to load these tribunals (County Courts) with new and heavier work would unquestionably destroy what efficiency they at present possess,” which I assume is its original jurisdiction up to £50. Can it be pointed out where the extended jurisdiction given to those courts, such as bankruptcy, windingup of companies, equity up to £500, remitted actions up to £100, and a host of other matters (including employers' liability cases), in which such courts have exclusive jurisdiction, have in any way destroyed their efficiency? I think not; but, on the contrary, in my opinion the extension of jurisdiction has made County Courts far more efficient than they were before, and the majority of the judges have proved themselves fully capable of dealing with the heavier work such extended jurisdiction has impressed upon them. Of course some reforms could very usefully be made in the County Courts. For instance, it seems to me that the debtcollecting business--indeed all cases up to £10-could be disposed of as satisfactorily by Registrars at salaries from £800 to £1000 a year as by the judges ; and, further, that it is a waste of public money to take up the time of judges at £1500 a year dealing with such cases. Then, again, the scale of fees, both court fees and solicitors' charges, urgently require revision. The former are exorbitant, the latter inadequate. It is perfectly scandalous to recollect that the solicitor who personally and successfully carries through an intricate action of tort or contract involving a claim of £10 should only be able to recover 18s. (if plaintiff) or 15s. (if defendant), whereas his office lad may earn for him £3 10s. 6d. on a miserable and undefended trade debt.
But how can we County Court practitioners expect reforms when the President of the Incorporated Law Society can make such an exhibition of his signature as to append it by way of approval to the County Court rules set out in your issue of the 20th Feb.? A few registrars on the Rule Committee is one of the most urgent reforms needed. I venture to think that there is not a registrar or a solicitor in Lancashire who would have signed such a ludicrous set of “rules as those of March 1897, at least, in so far as they relate to the procedure for leave to issue plaint. The Probate Registries are the only likely places to tolerate such forms as that monstrosity intituled “14 A1.". Red tape does not thrive in the County Court offices, and I am glad to see that the March rules are already in & comatose state of “saspense."
CH. W. PICKSTONE.
and expected upon a racecourse, as the clown is looked for at a pantomime, or the lady who jumps through hoops at a circus. He is expected, and his
wares for sale are always largely patronised.
The ring is the place where the best bookmakers are found. The law having no objection to the bookmaker, why should it have any objection to the ring ? There does not seem to be any logical reason for any such distinction. Either the ring and the bookmaker as a combination, one would have thought, should be allowed, or else the one and the other should be put under the ban of the law.
But the statute, in fact, takes the third-the inconsistent, the illogical course ; and the Court has refused to say that this "place" is not a
place.” As the present Master of the Rolls said in the famous “ umbrella " case, called Bou's v. Fenwick (L. Rep. 9 C. P. 339 ; 30 L. T. Rep. 524) : “When the Act of Parliament in question passed, the Legislature had not made up its mind to probibit gaming altogether. But what it did mean to prohibit was that which is described in the preamble, viz., a kind of gaming which had of late sprung up, tending to the injury and demoralisation of improvident persons by the opening of places called betting-houses, or offices, and the receiving of money in advance by the owners or occupiers of such houses or offices, or by other persons acting on their behalf, on their promises to pay money on events of horse-races and the like contingencies. Sect. I then provides that no house, office, . room, or other place shall be opened, kept, or used' for the purposes mentioned in the preamble. It would seem, therefore, that the kind of gaming prohibited is the opening and keeping a place for the purpose of gaming or betting with persons resorting thereto-a fixed place to which all persons may resort. I agree that it is necessary that it should be a “fixed place,' whether on a racecourse or elsewhere." Bows, the appellant in that case, stood upon a stool, over which was a large umbrella, which remained up wet or fine, on which was painted, in large letters, “ G. Bows, Victoria Club, Leeds." That umbrella the Court of Common Pleas pronounced to be a “place” within the meaning of the Act so long ago as 1874.
If the umbrella was a "place,” why is not the whole ring? It is itself as much fixed as the umbrella, though in it there is more room for the bookmaker to move about. So argued the Anti-Gambling Leagne; they bad argued it before in the Newmarket case, but there the somewhat surprising finding of fact by the justices in that case, to the effect that the Stewards of the Jockey Club did not know that the ring was used for betting, proved fatal to their contention in their case. Now they have made it good. The Ring and the Bookmaker, as a combined institution, must cease-it is too expensive at a penalty of £100 or six months' imprisonment with hard labour.
Magistrates have found it somewhat difficult to decide what is and what is not a place. Take, for instance, the case of Eastwood v. Miller (30 L. T. Rep. 716 ; L. Rep. 9 Q. B. 440). There Eastwood, the occupier of certain inclosed grounds in which a pigeon shooting match between two persons for £10 a side was taking place, admitted the public for a money payment to these grounds. Betting went on. Eastwood himself stood near the bookmakers, and could hear what they and the persons betting with them said. It was held by the magistrates that these “ grounds were a place, and that they were kept and used by Eastwood for the purpose of betting, within the meaning of the Act. The magistrates were upheld in the Court of Queen's Bench.
Accordingly the magistrate who tried the case of Snow v. Hill, where dog races were held in an inclosed field hired for the purpose by a committee, the public being admitted to a reserved portion of the field on payment of a small sum, in which reserved portion Snow moved and made bets with various persons there, convicted Snow on the authority of Eastwood v. Miller. The Queen's Bench Division held that he was wrong. · We think,” said Mr. (now Lord) Justice Smith, “that the learned magistrate has taken a wrong view of the decision in Eastwood v. Miller. Upon the facts in the present case the appellant did not, we think, keep or use any place for the purpose of betting with persons resorting thereto. He was simply walking about the field making bets with the other persons who were present, and we do not think that what he did comes within the purview of the Act.
As the magistrate in Snow v. Hill wrongly relied on Eastwood v. Miller, so the magistrates in Hawke v. Dunn wrongly relied on Snow v. Hill. " It seems to me,” says Sir Henry Hawkins, " it would be frittering away the provisions of the Act to hold that a well-defined inclosure known by a particular name and devoted to be used as a betting-ring could not be treated as a place within the meaning of the Act unless the person charged with using it for the particular forbidden purposes contined himself to a single spot indicated by some such thing as a stool or a box to stand on, or an umbrella stuck in the ground spread over his head, and that by changing his position from time to time by walking about and making his bets upon different spots in the same ring he could avoid the penalties because he was not using a “place.” So there is an end of safe bets in Tattersall's ring.
We make no doubt that this decision, though excellent in law, will be unpopular with the community at large. The Anti-Gambling League have scored a great success against the bookmakers, and are probably now considering whether the whole of “Hurst Park” and other private race. courses are not "places within the meaning of the Act.
Meanwhile the betting community is beginning to speak of “further legislation.” The betting law is in worse confusion than any other portion of the law of England. Neither side consider it satisfactory. Perhaps the struggle between the Anti-Gambling League and the "sportsmen,” tho seo ruin to horse-racing in the extermination of professional bookmakers, may succeed in causing some great codifying enactment, based upon some real principle, to find its way on to the statute rolls. The issue is a serious one: if racing is really in danger if the bookmakers are wiped out, then there is fear that a valuable incentive to the improvement of the
THE RING AND THE BOOKMAKER. The decision of the Queen's Bench Division in Hawke v. Dunn, and the judgment of Sir Henry Hawkins declaring that decision, will probably have attracted the interest of a far wider circle of readers than a decision or judgment upon any other subject, among all the thousands of subjects which come before our courts of law, conld do. The extent of the demand for any commodity which is easily produced can usually be fairly gauged by the extent of the forthcoming supply; and if this criterion be applied to the supply and demand for news, there can be no doubt of the inference which must be drawn. “The winner"--we do not mean the winner of the Grand National or the Derby, but the daily average • winner” of the racing season-appears to be of more general interest than any of the most important political events of the day, or indeed than anything else which the world of action, the world of science, the world of letters, or the world of art, can afford. This alluring item of news forms the one never-failing cry of the newspaper boy, which is shrieked into the ears of those who walk along either the London streets or the streets of a provincial town. The winner ” in all such cases is moreover an object of interest to hundreds whose deficiency in the instincts of sportsmen is only second to their ignorance of the points of a horse. On the subject, however, of “ starting prices" and“ tips” their knowledge is phenomenal.
According to the “Sporting" correspondent of the Daily Telegraph, the decision in Hawke v. Dunn, if carried to its logical conclusion by the energies of the Anti-Gambling League, “ will do harm to racing to an extent which few would imagine.” This means that, in the opinion of this authority, horse-racing does largely depend upon professional bookmakers and their clientèle for support.
The ring and the bookmaker have long flourished; but the present decision of the Queen's Bench Division has appended to the combination of these two certain consequences of the most unpleasant description. To bookmakers as such the law has no objection; and this is but natural. For the law is the voice of the people, and the English people has no objection to the honest bookmaker. Contrariwise he is looked for
breed of horses will be lost; but in reply to this we have heard it well said “it is not much use to improve the breed of horses if you deteriorate the breed of men."
of the court in cases of judgments or orders for payment into court or performance of any other act in a limited time; or in cases of the recovery of any property other than land or money; and in cases of orders for the payment of money or costs within a limited time : (see Seton, p. 394).
We tarn now to the classes of property that are subject to or the object of sequestration orders. All personal property in possession is liable to sequestration : (Lord Pelham v. Duchess of Newcastle, 3 Swa. 290, n.). The writ binds real property and chattels real, but the land itself does not pass to the sequestrators : (see Re Rush, 10 Eq. 442; Shaw v. Wright, 4 Ves. 22; Sutton v. Sutton, 1 Dick. 187). Only the rents, profits, and natural produce may be applied. Money and choses in action in the hands of third parties may be seized by the sequestrators and paid into court if the third parties submit to the order of the court and admit possession : (Miller v. Huddlestone, 47 L. T. Rep. 570 ; 22 Ch. Div. 233 ; Seton, 395). In the case of a chose in action the mere issue of the writ and the service of it on the party indebted to the judgment debtor is not enough to create a charge on the chose in action (Ex parte Nelson, ubi sup.); an order for pay. ment must be obtained. There is no reason why a writ of sequestration should be limited to the separate estate of a married woman (Hyde v. Hyde, 13 P. Div. 177); but a sequestration will not affect income not due at the date of the issue of the sequestration as to which there is a restraint on anticipation : (Hood-Barrs v. Cathcart, 71 L. T. Rep. 72). Crown pensions for past services are subject to a writ of sequestration (Ex parte Huggins, 47 L. T. Rep. 559 ; 21 Ch. Div. 85), save in the case of army pensions which are inalienable (44 & 45 Vict. c. 58). Salary or half-pay for services still being rendered cannot be sequestered : (Seton, 396). Sequestration of pensions out of the Consolidated Fund is in the discretion of the Lords of the Treasury.
When a writ of sequestration has been issued against a defendant, and the proceeds of the sequestration are in court, they can be applied to satisfy generally claims of the creditor in the action without a second writ of sequestration: (Etherington v. Big Blow Gold Mines Limited, (1897) W. N. 21 (9).
SEQUESTRATION. The case of Fairclough v. Manchester Ship Canal Company (102 L. T. 292), decided on the 21st Jan., is an important decision on the question of sequestration, and draws legal attention to the whole subject.
When there has been due service of a judgment or order directing payment of money into court or to do any other act in a limited time, the person prosecuting such judgment or order shall, at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of any disobedient person who has neglected or refused to obey the said judgment or order : (Order XLIII., r. 6). In the case of Sprunt v. Pugh (7 Ch. Div. 567) Jessel, M.R. decided that, under Rules of Court 1875, Order XLII., rr. 2 and 20, and Order XLVII., a writ of sequestration against the estate and effects of a receiver or other person for disobedience of an order of the court might be issued without the leave of the court. See also on this point Sykes v. Dyson (9 Eq. 228).
It is necessary to investigate the actual nature of sequestration and to ascertain the class of persons, the class of debts or acts, and the classes of property that are subject to or are the objects of sequestration.
Sequestration is a process of contempt in rem and not in personam : (Tatham v. Parker 1 Sm. & G. 513-14). “ The commission of sequestration should be directed to not less than four commissioners, nominated by the person prosecuting the judgment or order, and empowers the commissioners to enter upon all the messuages, lands, tenements, and real estate of the person disobeying the order and in contempt, and to collect, receive, and sequester, not only all the rents and profits of such real estate, but also all his goods, chattels, and personal estate, and keep the same under sequestration until the person disobeying the order of the court shall have cleared his contempt”: (Seton, p. 394).
Now what is the exact class of persons liable to this peculiar process of contempt? How do we ascertain the class ? The recent case in the Appeal Court of Fairclough v. The Manchester Ship Canal Company (ubi sup.) put the grounds of liability absolutely clearly. The Court said: “The case is as if it were sought to commit a private individual to prison for contempt. We desire to make it clear that in such case no casual or accidental or unintentional disobedience of an order would jastify either commitment or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental, and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs, and might order an inquiry as to damages, it would not take the extreme course of issuing an order either of commitment or sequestration. To justify so serious a proceeding the court must be satisfied that a contempt of court has been committed-in other words, that its order has been contumaciously disregarded.”
This statement will render it easy in future to ascertain whether a person has been guilty of such contempt as will justify the issuing of an order of sequestration. The test is, “ Does the contempt arise from intentional or reckless conduct ? "
Having decided the class of persons whose property is liable to seques. tration we turn at once to discover the class of debts or acts that involve a sequestration order. It is very doubtful whether a writ of sequestration can be issued to enforce a simple judgment for payment of debt. In the . case of Ex parte Nelson; Re Hoare (42 L. T. Rep. 389 ; 14 Ch. Div. 46), Lord Justice Brett said: “I have very great doubts whether the writ was properly issued at all under a mere ordinary judgment for a debt;” and Lord Justice James said : “On the facts before us, there being a simple judgment for a sum of money, I cannot understand how the writ could have been issued.” Bat see Slade v. Hulme (45 L. T. Rep. 276 ; 18 Ch. Diy. 653). A writ of sequestration can only be issued with reference to things that the court has ordered not to be done at all, as in the case of an injunction with reference to a sewer nuisance which a corporation had been ordered to abate : (Selous v. Croydon Local Board, 53 L. T. Rep. 209). In two cases it is certain that an order of the court is a condition precedent to the issuing of a writ of sequestration. By Order XLII., r. 31, any judgment or order against a corporation wilfully disobeyed may, by leave of the court or a judge, be enforced by sequestration against the corporate property, or by attachment against the directors or other officers, or by writ of sequestration against their property. Consequently an order of the court is necessary before issuing a writ of sequestration against a corporation. The second case is that of sequestration for nonpayment of costs. Order XLIII., r. 7, gives the court or judge a discretion as to whether the order of sequestration should issue. Before the Judicature Act this was not so. In those days disobedience to an order for payment of costs was followed as a matter of course by a subpoena for costs, and this was followed in due order first by attachment and then by sequestration. Attachment was done away with by the Debtors Act 1869, and the Judicature Act enabled a sequestration order to be issued without any preliminaries save that an order of a judge had to be obtained in order to prevent creditors abusing the process. An extremely important recent case in the House of Lords deals fully and finally with this question. In the case of Hulbert v. Cathcart (75 L. T. Rep. 302 ; (1896) A. C. 470) it was decided that, where application is made for leave to issue a sequestration for nonpayment of costs, the court or judge should be satisfied that the application is reasonable, but it is not necessary to point to any particular property which may be made available for the payment of costs by sequestration.
As a matter of usual practice the writ is only issued without an order
THE NEW COUNTY COURT RULES. The following are the objections of the Council of the Bristol Incorporated Law Society to the County Court Rules 1897, so far as they relate to commencing actions out of the district in which the defendant resides or carries on business :
Under these rules, which come into operation on the 25th March inst. (now suspended till May), in order to sue a debtor in a court where he does not reside or carry on business, but where part of the cause of action arose, it will be necessary : 1. To show by affidavit that leave may be legally granted. 2. To convince the registrar or judge by a long and complicated affidavit that the balance of convenience is in favour of leave being granted. 3. If leave is granted the plaintiff must, where the defendant resides more than twenty miles away, deposit in court a sum to be fixed by the registrar to cover the travelling and other expenses of the defendant in the event of his being successful, unless such deposit be specially dispensed with. 4. Notice of the deposit must be prepared and served with the summons as well as a copy of the affidavit.
One objection to the above rules is that they tend to defeat the object for which the County Courts exist, by rendering it both difficult and expensive for plaintiffs to commence County Court actions without conferring any real benefit upon defendants, who, where the claim is undisputed, as in the large majority of cases, or where the defendants are unsuccessful in disputed cases, will have to bear the travelling expenses.of the plaintiff and his witnesses, in addition to the costs they have now ordinarily to pay.
In the case of a mercantile firm desiring to recover debts from debtors in different parts of the country, they will have to either succeed in complying with the above conditions, or sue their debtors in the court where the debtor resides, and the object of the rules is apparently to compel them to take the latter course. This, it is submitted, is entirely opposed to the well-known principle that a creditor is entitled to require payment of his debt at his own place of business, and it will work great injustice to the mercantile community, and prevent them in many cases from suing for their debts at all, as the expense and trouble they will be put to will be out of proportion to the amount to be recovered.
If the mercantile community are obliged, as they practically will be, to sue their debtors in various small County Courts all over the country, they will have to be constantly sending their travellers and clerks and also their books long distances, and will sustain much loss and inconvenience ; and, moreover, as the smaller courts only hold sittings at long intervals, there will be often great delay.
The plaintiffs will, in cases where the debtor resides more than twenty miles away, not only have to show that the balance of convenience is in favour of suing in the court where the plaintiff resides, but will be bound to deposit a sum in court which will in many cases be as much as, if not more than, the debt they are suing for. In the case of large firms this means that they will continually have to keep a large sam deposited in court. This is manifestly most unjust to plaintiffs, nor is it at all necessary. In most cases the defendant has no defence, notice of appearance being given simply to gain time, and yet the plaintiff must deposit money in court before he can sue for his debt. Taking the case of Bristol out of the many thousands of mercantile plaints which were issued for service out of the jurisdiction last year, we believe that in no single case has a defendant not been paid costs recovered from the plaintiff, and thi shows that the rul as to depositing the money is absolutely unnecessary,
We beg to refer to the proposed forms of affidavit under the new rules, and it will be seen at once that they are cumbersome, and their provisions