The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, JANUARY 15, 1853.

COMMENCEMENT OF HILARY

TERM.

BUSINESS OF THE COURTS.

HILARY TERM has commenced under circumstances not undeserving of a passing notice.

bers of the Bar, at the commencement of every Term, was restricted, during the Chancellorship of Lord Cottenham, to the opening days of the two Terms following the Spring and Autumn Circuits, namely, Easter and Michaelmas Terms. Lord Cranworth appears to have been desirous of meeting the heads of the Legal Profession under his own roof, upon the very earliest opportunity after his recent elevation to the Chancellorship, and wisely and with universal concurrence disregarded the modern innovation upon the "ancient custom," by receiving the Judges, and all the notabilities of the Bar, at his house in Upper Brook Street, on Tuesday last. His Levee is said to have been remarkably well attended.

In three of the Equity Courts the suitor and practitioner find a change of Judges in the short interval since the Courts rose for the Christmas holidays. There is a new Lord Chancellor, a new Lord Justice, and a new Vice-Chancellor. The Lord Chancellor Cranworth and the Lord Justice Sir George Turner, though new in their present offices, are not without judicial experience, 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 present office can only be regarded as an acknowledgment of judicial capacity equally honourable to the Government and the object of their choice.

Act 14 & 15 Vict. c. 83 (which has been so ably presided over by Lord Justice Knight Bruce, conjointly with Lord Cranworth), and by the arrangements made 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.

M

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 Equity Judges should be able, as at present, to sit from day to day in their respective Courts.

The present Ministry, like their predecessors, are pledged to carry out the necessary measures for completing the reform of 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 quesRules 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 if the Common Law Judges desire it, at the close of the present Term, there need not be a single rule of any description remaining for hearing.

admitted, ought to precede the adoption of all speculative reforms. It is at once safe and practical, and we trust will not be postponed in order to afford the opportunity for introducing experimental changes, which, however specious, must be to a great degree uncertain in their operation.

Thus, the complaint, often well founded, arising from the delay of the hearing of 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

OF THE COMMON LAW RULES.

grievance would be complete in the Common 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 existing arrangement, it is possible, and annulling all former Rules of Court, except gation of a body of new Rules of Practice, indeed constantly occurs, that although as regards proceedings heretofore taken. litigant parties are ready and willing to try 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 month of March following, an interval of is 176, and, as might be expected, are, as are understood to have given their sanction, 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, however, are matedirected.

rially modified, and adapted to the altered Act, and there are some regulations entirely practice under the Common Law Procedure

Another grievance-one, perhaps, more generally as well as more severely felt, is the expense of legal proceedings, arising novel.

from what are called "office fees.'

As we

have already had occasion to observe, according to the new scale introduced in the Common Law Courts, whilst a few fees have been abolished, the greater number have been increased, so that the suitor, or his attorney on his behalf, is compelled to pay, in the aggregate, more than he was

The subject-matter of the new Rules is thus analytically stated in the Table of Contents prefixed to the authorised copy :— Repeal of all existing rules of practice and making of fresh rules.

Writ of summons.
Appearance.

Attorney and guardian.

Consolidation and Amendment of the Common Law Rules.

It must be remarked, however, that the Judges who have to carry these comprehensive changes in the procedure of the Courts into effect are placed in great difficulty. The Statutes must be obeyed, whether time be allowed, or not, to prepare the proper machinery. "Most haste, least speed." Our reformers are not always practical men. On one great point all are agreed, that it will be peculiarly advantageous thus to have the entire Code of Practice in one small volume.

We may add that on the first day of Term, Lord Campbell said, he had the satisfaction to announce, for the information of the Bar and the Public, that the Judges had this day signed a body of new rules for regulating the practice of the three Superior Courts of

Bailable proceedings; bail, and bail in error. Common Law in Westminster Hall. The

plan adopted, and which he hoped would be generally approved of, was to abolish all the written rules of practice from the earliest times down to the present, and in that way to make a tabula rasa for the new practice. The rules would be equally applicable to all the three Superior Courts, and were intended to establish an uniformity of practice, so far at least as the Judges had

Notices, service of, and of rules, pleadings, now the power in themselves to establish

it.

188

Consolidation and Amendment of the Common Law Rules. Law of Attorneys.

In addition to these General Rules of Practice, the Judges have under their consideration a series of Directions to the Taxing Officers, comprising a Scale of Charges to be allowed attorneys on the taxation of their costs.

am of opinion, that an order ought not to be made against the solicitor for refunding that which he has received or which has been allowed to him, without making an allowance as nearly approaching to what is fit and correct (without including any profit) as possible, in respect of the labour so

The rules for the examination, admission, and re-admission of attorneys, and the taken from him for the benefit of others. taking out and renewal of their certificates, will also be consolidated and amended. These are distinct from the Rules of Practice and Pleading.

COSTS

LAW OF ATTORNEYS.

OF A SOLICITOR ACTING AS AS-
SIGNEE IN BANKRUPTCY.

IN a case decided some time ago, but only recently reported, it was held that the assignee of a bankrupt, who was the petitioning creditor and had acted as Solicitor to the fiat, was entitled to charge for his clerks' time in the business of the estate as costs out of pocket, though the solicitor himself could make no profit.

An attempt must be made to ascertain it. At present, as I understand, nothing has been allowed him in that respect. And I 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 reference do it, but should have left it to another jurisdiction. It is scarcely possible that it can be done with exactness, but 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 Commissioner for an inquiry, — the language of which will require some consideration."

The parties, after some negociation, agreed on the amount to be allowed, with a specific sum for the costs of the petition.

PRIVILEGED COMMUNICATION.

The assignee, a solicitor, had been the petitioning creditor,—the bankrupt being indebted to him on mortgage, and also in In a suit on behalf of an infaut 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. was contended, on the authority of Davies Dividends, amounting to 108. in the pound, v. Clough, that the defendant had a right to had been already paid to the creditors, who, with the exception of the assignee, had agreed to accept the remaining 10s. in the pound without requiring interest, and that thereupon the fiat should be annulled. The accounts were directed to be re-audited, and the case came on upon the Commissioner's certificate :-the principal question being, whether the Commissioner ought to have allowed the assignee anything for the

services of his clerks.

The Vice-Chancellor said, "I consider the inference to be just and unavoidable, that a paid clerk or paid clerks of this solicitor, has or have been employed for the purposes of the estate, and to that extent labour and skill, for which the solicitor has paid, have been employed for the benefit of others. I

1 Exparte Newton, 3 De G. & S. 584. And see Fraser v. Palmer, 4 Y. & C. 515; Re Wyche, 11 Beav. 209.

have her confidential communications with her solicitor protected by the injunction sought. On the other hand, the case of Parratt v. Parratts was referred to; but the Vice-Chancellor held, that the principle laid down in Cholmondeley v. Clinton did not apply to this case. There was no ground upon which the Court ought to interfere to prevent the solicitor from communicating to the next of kin what took place between him and the administratrix in the course of the administration of the estate. The motion was refused, but without

Remuneration of Attorneys and Solicitors.-New Orders in Chancery.

REMUNERATION OF ATTORNEYS

AND SOLICITORS.

Ir has again and again been said by reformers of all kinds,-whether seated on the Judicial Bench, or exercising the office of Royal Commissioners, or acting as Committees of the Law Amendment Society,that in carrying out the changes in the Law and the Practice of the Courts, the great working branch of the Profession should be liberally remunerated. They have all admitted, and indeed many have urged, that for the good of the public, a well-educated and honourable body of men should be encouraged to enter and continue in practice as attorneys and solicitors.

NEW ORDER IN CHANCERY.

189

REFERENCES BY MASTERS TO CONVEY-
ANCING COUNSEL.

24th December, 1852. THE Right Honourable Edward Burtenshaw, Lord St. Leonards, Lord High Chancellor of Great Britain, doth hereby, Order and Direct in manner following, that is to say:

1. When any of the Masters in Ordinary shall request the opinion of any of the Conveyancing Counsel, nominated by the Lord Chancellor under the 15 & 16 Vict. c. 81, s. 41, to be taken upon any matter depending before such Master, such business is to be laid before the Conveyancing Counsel in rotation, to be Yet, notwithstanding these often-repeated ascertained in the manner prescribed by the professions, the alterations of the last and General Orders of the 16th day of December, previous Sessions of Parliament, which 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

incur.

Counsel, nominated as aforesaid, successively, according to their seniority at the Bar, until some one of them shall accept the same.

2. Where, under a Decree or Order of the

for

We have heretofore noticed several modes by which a more just estimate than now prevails might be formed for remunerating the skill, learning, and diligence bestowed Court, whether already made or hereafter to be by the attorneys and solicitors in behalf of made, any estate or interest shall be put up their clients. In our Number for the 27th 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 suggestions there made,-to communicate their opinions thereon, and state the result of the experience they have since derived from the operation of the changes in practice, both in the Courts of Law and Equity, since the commencement of last Michaelmas Term.

We understand that the Incorporated Law Society is actively engaged in the consideration of this subject, and, no doubt, they will be glad to receive the suggestions of practitioners in all the departments of the Law. No time should be lost in We shall making their communications. gladly lend our aid in this essential work.

estate or interest is, upon the request of the Master, to be laid before the Conveyancing Council in rotation, for the opinion of such counsel thereon, to the intent that the said Master may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest.

3. Notwithstanding the preceding Orders, the Master is to be at liberty to request the opinion of any one in particular of the said Conveyancing Counsel to be taken upon any matter before such Master, where the circumstances of the case may render it expedient to do so.

(Signed)

ST. LEONARDs, C.