« EelmineJätka »
The Legal Observer,
DIGEST, AND JOURNAL OF JURISPRUDENCE.
SATURDAY, JANUARY 15, 1853.
COMMENCEMENT OF HILARY Ibers of the Bar, at the commencement of TERM.
every Term, was restricted, during the Chancellorship of Lord Cottenham, to the
opening days of the two Terms following BUSINESS OF THE COURTS.
the Spring and Autumn Circuits, namely, HILARY TERM has commenced under Easter and Michaelmas Terms. Lord circumstances not undeserving of a passing Cranworth appears to have been desirous of notice.
meeting the heads of the Legal Profession In three of the Equity Courts the suitor under his own roof, upon the very earliest and practitioner find a change of Judges in opportunity after his recent elevation to the the short interval since the Courts rose for Chancellorship, and wisely and with unithe Christmas holidays. There is a new versal concurrence disregarded the modern Lord Chancellor, a new Lord Justice, and innovation upon the “ ancient custom," by a new Vice-Chancellor. The Lord Chan- receiving the Judges, and all the notabilities cellor Cranworth and the Lord Justice Sir of the Bar, at his house in Upper Brook George Turner, though new in their present Street, on Tuesday last. His Levee is said offices, are not without judicial experience, to have been remarkably well attended. and the only untried Judge is Vice-Chan- Lord Cranworth, upon taking his seat in cellor Sir W. Page Wood. His position at the Court of Chancery, found—what we the Equity Bar, and the ability with which believe to have been unprecedented within he filled the office of Solicitor-General under living memory-a paper disclosing no arLord John Russell's Government, seem in rears! This extraordinary event, though the opinion of the Profession and of the well deserving of record, it must be rememPublic, to have fully justified the appoint- bered, is not to be ascribed wholly to the ment of Sir W. Page Wood as a Vice- exemplary diligence and industry of Lord Chancellor. Sir George Turner's appoint- Cranworth's immediate and distinguished ment, in the first instance, to judicial office predecessor, but in great measure to the was made without any reference to political creation of a Court of Appeal, under the predilections, and his promotion to his Act 14 & 15 Vict. c. 83 (which has been present office can only be regarded as an so ably presided over by Lord Justice acknowledgment of judicial capacity equally Knight Bruce, conjointly with Lord Cranhonourable to the Government and the ob- worth), and by the arrangements made ject of their choice.
under that Act for lightening the pressure In the Common Law Courts, the Bench of judicial business, which previously had has not presented any change since the re-exclusively devolved upon the individual tirement of Sir James Patteson and the having the custody of the Great Seal. As appointment of Mr. Justice Crompton. As we have already had occasion to remark, a consequence of a change of Ministry, Sir for this great, and as it has turned out, A. Cockburn takes his place at the head of most successful experiment, the public is the Bar, instead of Sir F. Thesiger.
mainly indebted to Lord Chancellor Truro. The customary audience—we believe it In the Courts of the Lords Justices, the was a misnomer to dignify it with the name Master of the Rolls, and the Vice-Chanof a breakfast-given by the Lord Chan- cellors respectively, the Term papers do not cellor to the Judges and the leading mem-'exhibit any formidable list of arrears, but Vol. XLV. No. 1,297.
186 Commencement of Hilary Term.- Consolidation of the Common Law Rules. enough appears to satisfy the most sceptical required to do before those changes were that there is no excess of judicial strength, made in the Court procedure, the chief and that the business ready for hearing recommendation of which was the promised could not be satisfactorily disposed of with reduction of expense. a less number of Judges, even if all the The present Ministry, like their predeEquity Judges should be able, as at cessors, are pledged to carry out the necespresent, to sit from day to day in their sary measures for completing the reform of respective Courts.
the practice and procedure of the Superior In the Common Law Courts, the only Courts of Law and Equity. The sincerity arrears, deserving of notice, at the com- of their professions will be best tested, by mencement of the Term, consisted of the spirit in which they deal with the ques. Rules for New Trials granted during the tion, how are the fees now levied upon the last Term, and which, by reason of the suitors to be dispensed with? The late period at which they were moved, could Lord Langdale, and more recently Lord St. not be conveniently heard before the pre- Leonards, distinctly laid down the principle, sent Term. The Circuits, and not the that the expense of administering justice Sittings in London and Middlesex, yield should be paid out of the national funds the largest crop of new trials, and as the and not taken from the pockets of the applications for rules arising from the last suitors, although when the property of Circuits have been already moved, the suitors was to be administered, they might number of such rules will not be materially be fairly called upon to pay the expenses augmented during the present Term, and incidental to its administration. The comthe Courts will have little to do beyond plete adoption of this principle, the sounddisposing of the rules already granted and ness of which is now all but universally waiting for hearing. It is quite clear, that I admitted, ought to precede the adoption of if the Common Law Judges desire it, at all speculative reforms. It is at once safe the close of the present Term, there need and practical, and we trust will not be postnot be a single rule of any description re. poned in order to afford the opportunity for maining for hearing.
introducing experimental changes, which, Thus, the complaint, often well founded, however specioiis, must be to a great degree arising from the delay of the hearing of uncertain in their operation. causes in the Superior Courts, has been in a great degree removed by the operation of recent enactments. The remedy for this · CONSOLIDATION AND AMENDMENT grievance would be complete in the Com-1 OF THE COMMON LAW RULES. mon Law Courts, if the Circuits could be so arranged as to afford an opportunity for The great event of the Term in the the speedy trial of causes in which the Common Law Courts has been the promulvenue arises in the country. Under the
gation of a body of new Rules of Practice, existing arrangement, it is possible, and
annulling all former Rules of Court, except indeed constantly occurs, that although las
as regards proceedings heretofore taken. litigant parties are ready and willing to try The num
to The number of the Rules so promulgated, their causes in the month of August, the and to which all the Common Law Judges opportunity is not afforded them until the
are understood to have given their sanction, month of March following, an interval of is
is 176, and, as might be espected, are, as nearly seven months! This is a real
to the largest proportion, a repetition of practical grievance, to which the atten
practical Regulations already in existence. tion of law reformers cannot be too soon
Some of the old Rules, howerer, are matedirected.
rially modified, and adapted to the altered Another grievance-one, perhaps, more
practice under the Common Law Procedure generally as well as more severely felt, is
Act, and there are some regulations entirely the expense of legal proceedings, arising novel from what are called “office fees.” As we
The subject-matter of the new Rules is have already had occasion to observe, ac
thus analytically stated in the Table of cording to the new scale introduced in the Common Law Courts, whilst a few fees
Contents prefixed to the authorised copy :have been abolished, the greater number Repeal of all existing rules of practice and have been increased, so that the suitor. or making ol fresh rules. his attorney on his behalf, is compelled to
Writ of summons.
Appearance. pay, in the aggregate, more than he was
Attorney and guardian.
Consolidation and Amendment of the Common Law Rules. Joinder of parties..
It must be remarked, however, that the Pleadings.
Judges who have to carry these comprePayment of money into Court. Demurrer.
hensive changes in the procedure of the Venue, change of.
Courts into effect are placed in great diffiParticulars of demand or set-off.
culty. The Statutes must be obeyed, Security for costs.
whether time be allowed, or not, to prepare Discontinuance.
the proper machinery. “Most haste, least Staying proceedings.
speed.” Our reformers are not always Cognovit; warrant of attorney; Judge's practical men. On one great point all are order for judgment. Evidence; admission and inspection of do
agreed, that it will be peculiarly advan
tageous thus to have the entire Code of cuments. Trial. Notice of trial and of inquiry
Practice in one small volume. Jury; view.
New trial; motions in arrest of judgment and judgment non obstante veredicto.
We may add that on the first day Judgment.
of Term, "Lord Campbell said, he had Costs; setting-off damages and costs. the satisfaction to announce, for the Error.
information of the Bar and the Public, Execution. Revivor and scire facias.
that the Judges had this day signed Audita querela.
a body of new rules for regulating the Entry of satisfaction on roll.
practice of the three Superior Courts of Bailable proceedings; bail, and bail in error. Common Law in Westminster Hall. The Ejectment.
plan adopted, and which he hoped would Causes removed from inferior Courts. be generally approved of, was to abolish all Penal actions, compounding of.
the written rules of practice from the Paupers, actions by.
earliest times down to the present, and in Prisoners, and proceedings against.
Sheriffs : rules to return writs or bring in that way to make a tabula rasa for the the body.
new practice. The rules would be equally Irregularity, setting aside proceedings for. applicable to all the three Superior Courts, Affidavits.
and were intended to establish an uniformity Rules, summonses, and orders.
of practice, so far at least as the Judges had Notices, service of, and of rules, pleadings, now the power in themselves to establish &c. Attachment.
His Lordship also said, there was another Award and annuities. Miscellaneous.
body of rules which the Judges had not the Forms of proceedings.
power, proprio vigore, by their Common
Law authority, to establish,—viz., those The great length to which the Rules and which related to pleading, but objections to the Schedule of Forms extends has induced the existing rules they had endeavoured to us, on this important occasion (especially as obviate by certain other rules, which they the Rules come into immediate operation), had made under the authority of recent to publish a double Number, for the pur-Acts of Parliament. Under the provisions pose of laying them before our readers in of these Acts, the Judges had done all they extenso, and the earliest opportunity will be could to render the administration of justice taken of pointing out those which are al- speedy and economical; but before these together new. (See pp. 195-210, post). rules could come into operation they must
It has excited general observation, and be laid before the two Houses of Parliaseems to be complained of, that the new ment, and on the expiration of three months, Rules come into immediate operation, in- unless disapproved of by either House of stead of allowing a reasonable interval for Parliament, they would come into operation, the practitioners to become acquainted with and he hoped that they would then be the intentions of the Judges as to the pro- found materially to improve the administraposed alterations in practice. It was an- tion of justice. nounced by Mr. Baron Alderson, from the These rules were very numerous, and, Bench of the Court of Exchequer, on Wed- strictly speaking, they ought to be read in nesday last, that the new Rules were in Court, but he thought it would be unneoperation on that day, when, in point of cessary to do so at this time, as the rules fact, the Rules were not in print, and no would be printed and ready for all who depersons but the Judges and the officers of sired to have them on the morrow. the Court had seen them.
SIGNEE IN BANKRUPTCY.
188 Consolidation and Amendment of the Common Law Rules.Law of Attorneys.
In addition to these General Rules of am of opinion, that an order ought not to Practice, the Judges have under their con- be made against the solicitor for refunding sideration a series of Directions to the Tax- that which he has received or which has ing Officers, comprising a Scale of Charges / been allowed to him, without making an to be allowed attorneys on the taxation of allowance as nearly approaching to what is their costs.
fit and correct (without including any profit) The rules for the examination, admission, as possible, in respect of the labour so and re-admission of attorneys, and the taken from him for the benefit of others. taking out and renewal of their certificates, An attempt must be made to ascertain it. will also be consolidated and amended. At present, as I understand, nothing has These are distinct from the Rules of Prac- been allowed him in that respect. And I tice and Pleading.
think it very likely, that if I had been in the place of the Commissioner, I should have
thought that I could not under this referLAW OF ATTORNEYS. ence do it, but should have left it to an
other jurisdiction. It is scarcely possible
that it can be done with exactness, but as COSTS OF A SOLICITOR ACTING AS AS
near an approach as possible must be made. Perhaps the parties can agree on a sum; if
not, I must send the matter back to the In a case decided some time ago, but Commissioner for an inquiry, — the lanonly recently reported, it was held that the guage of which will require some considerassignee of a bankrupt, who was the pe- ation.” titioning creditor and had acted as Solicitor The parties, after some negociation, to the fiat, was entitled to charge for his agreed on the amount to be allowed, with a clerks' time in the business of the estate as specific sum for the costs of the petition. costs out of pocket, though the solicitor himself could make no profit.
The assignee, a solicitor, had been the PRIVILEGED COMMUNICATION. petitioning creditor,—the bankrupt being in- | debted to him on mortgage, and also in! In a suit on behalf of an infant as the next respect of a bill of costs. The accounts of of kin of an intestate, a motion was made to the assignee had been audited and allow- restrain a solicitor from acting as solicitor ances made to him which were now ob- to the next friend of the infant, on the jected to, on the ground that he was only ground that he had acted as solicitor to one entitled to the items which were for or in of the defendants, the administratrix. It respect of money paid out of pocket by him. I was contended, on the authority of Davies Dividends, amounting to 10s, in the pound, v. Clough," that the defendant had a right to had been already paid to the creditors, have her confidential communications with who, with the exception of the assignee. her solicitor protected by the injunction had agreed to accept the remaining los. in sought. On the other hand, the case of the pound without requiring interest, and Parratt v. Parratts was referred to; but that thereupon the fiat should be annulled. I the Vice-Chancellor held, that the principle The accounts were directed to be re-audited, | laid down in Cholmondeley v. Clinton+ did and the case came on upon the Commis- not apply to this case. There was no sioner's certificate : the principal question ground upon which the Court ought to inbeing, whether the Commissioner ought to terfere to prevent the solicitor from commuhave allowed the assignee anything for the nicating to the next of kin what took place services of his clerks.
between him and the administratrix in the The Vice-Chancellor said. " I consider course of the administration of the estate. the inference to be just and unavoidable, that The motion was refused, but without a paid clerk or paid clerks of this solicitor, costs. has or have been employed for the purposes of the estate, and to that extent labour and
L skill, for which the solicitor has paid, have
’8 Sim. 262. 3 2 De G. & S. 259.
4 19 Ves. 261. been employed for the benefit of others. I
· Exparte Newton, 3 De G. & S. 584. And see Fraser v. Palmer, 4 Y. & C. 515; Re Wyche, 11 Beav. 209.
Remuneration of Attorneys and Solicitors.--New Orders in Chancery. 189 REMUNERATION OF ATTORNEYS I NEW ORDER IN CHANCERY. AND SOLICITORS.
REFERENCES BY MASTERS TO CONVEYIt has again and again been said by reformers of all kinds, whether seated on
24th December, 1852. the Judicial Bench, or exercising the office
The Right Honourable Edward Burtenof Royal Commissioners, or acting as Com
shaw, Lord St. Leonards, Lord High mittees of the Law Amendment Society, Chancellor of Great Britain, doth hereby, that in carrying out the changes in the Law Order and Direct in manner following, and the Practice of the Courts, the great that is to say : working branch of the Profession should be liberally remunerated.
1. When any of the Masters in Ordinary
They have all admitted, and indeed many have urged, that|
shall request the opinion of any of the Conveyfor the good of the public, a well-educated
ated ancing Counsel, nominated by the Lord Chanand honourable body of men should be en-cellor under the 15 & 16 Vict. c. 81, s. 41, to couraged to enter and continue in practice be taken upon any matter depending before as attorneys and solicitors.
such Master, such business is to be laid before Yet, notwithstanding these often-repeated
the Conveyancing Counsel in rotation, to be
ascertained in the manner prescribed by the professions, the alterations of the last and previous Sessions of Parliament, which
General Orders of the 16th day of December, were carried by the active zeal of states- |
1852; and a memorandum or minute of every men on both sides of the House, the rights such request is to be prepared by the Master's of the practitioners and the interests of the Chief Clerk, and signed by him, and such mesuitors have been woefully neglected. The morandum or minute, when marked with the time has fully arrived when the Profession name of the Conveyancing Counsel in rotation, should exert itself to obtain, at least, com- shall be a sufficient authority for such counsel mon justice in the performance of their to proceed with such business; and if the arduous duties, and in some return for the Conveyancing Counsel in rotation shall be unlarge capital they invest, and the enor
able or decline to proceed therewith, the same mous responsibility and risk which they
shall be offered to the other Conveyancing
Counsel, nominated as aforesaid, successively, We have heretofore noticed several modes according to their seniority at the Bar, until by which a more just estimate than now some one of them shall accept the same. prevails might be formed for remunerating! 2. Where, under a Decree or Order of the the skill, learning, and diligence bestowed Court, whether already made or hereafter to be by the attorneys and solicitors in behalf of their clients. In our Number for the 27th
made, any estate or interest shall be put up for September, 1851, we entered somewhat
sale with the approbation of one of the Masfully into the details of this subject, and ters in Ordinary, an abstract of the title of such now invite our readers to re-consider the estate or interest is, upon the request of the suggestions there made,—to communicate Master, to be laid before the Conveyancing their opinions thereon,—and state the result Council in rotation, for the opinion of such of the experience they have since derived counsel thereon, to the intent that the said from the operation of the changes in prac- Master may be the better enabled to give such tice, both in the Courts of Law and Equity, directions as may be necessary respecting the since the commencement of last Michaelmas conditions of sale of such estate or interest.
3. Notwithstanding the preceding Orders, We understand that the Incorporated the Master is to be at liberty to request the Law Society is actively engaged in the con opinion of any one in particular of the said sideration of this subject, and, no doubt, Conveyancing Counsel to be taken upon any they will be glad to receive the suggestions matter before such Master, where the circumof practitioners in all the departments of stances of the case may render it expedient to the Law. No time should be lost in do so. making their communications. We shall
(Signed) ST. LEONARDS, C. gladly lend our aid in this essential work.