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430 Jurisdiction of the Ecclesiastical Courts-Manifesto from Doctors' Commons. significant language of the manifesto, "came upon the grounds plausibly but concisely to an untimely end,” and undoubtedly stated in the following extract:afford preguant evidence of the potency of " In the Prerogative Court of Canterbury is the influences which Doctors' Commons daily transacted with order, with accuracy, and can bring to bear, in baffling the attention with despatch, an amount of business unknown of Parliament, overawing rival administra- to any other Court in the kingdom, perhaps in tions, and eluding and delaying a reason- | the world, any interruption to which would be able and much desired reform. We are attended with such alarming results, that, even
were its transfer to another Court absolutely informed that :
necessary, the wisest would shrink most from “ 1. In 1835 Lord Brougham introduced a the responsibility of the measure. bill having for its object to provide one testa- ; “The same Court exercises a jurisdiction in mentary Court for each province.
contentious matters intimately associated with “2. In the saine year the Attorney and So- that in common form, which has for years licitor-General and Dr. Lushington introduced been transacted to the satisfaction of the pub. a bill for the establishment of one Court only. Ilic generally, with credit to the administration
“ 3. In 1836 the Lord Chancellor brought of the law and withcut reproach to its pracin a bill for the establishment of one Court' titioners. for England and Wales, to be called · Her “The suggested evils arising out of what Majesty's Court of Probate,' &c.
may be defective in its jurisdiction are rather "4. In the same rear Serjeant Goulburn, theoretical than practical, and, when they are Mr. Cayley, and Mr. Jervis brought in a bill, not otherwise counterbalanced by correspondthe object of which was to alter the local juris- ing advantages, are easily susceptible of amenddictions of all Ecclesiastical Courts, giving to ment.” the Prerogative Court of Canterbury exclusive The importance of the duties devolving jurisdiction in London and the counties around, it, and assigning a limited jurisdiction to the ;
upon a proctor in proving a will are stated
in the “ manifesto," with a clearness and other Courts.
“5. In 1843 Dr. Nicholl, Sir James Graham, minuteness of detail which indicate the and the Attorney-General brought in a bill to practical experience of the writer, and consolidate the Testamentary Jurisdiction of afford a useful lesson to such of our reaEngland and the Court of Arches.
ders as may hereafter, from the altered “6. In the same year Dr. Elphinstone, Mr. state of the law, be called upon to perform Stock, and Mr. Hayter brought in a bill to similar duties on behalf of his clients' withconsolidate the Arches and Prerogative Courts. “7. In 1824 Lord Chancellor Lyndhurst'
:lout resorting to the agency of that select brought in a bill to establish Metropolitan and pouy,
anand body which has hitherto monopolised this Diocesan Courts throughout the kingdom, and lucrative branch of practice. It is said :give Contentious Jurisdiction to each. .. ! “No two things can be more distinct tharr “8. In 1845 Lord Cottenhain brought in a proving and registering a will. to establish one Court of Probate in Lon-ı " The registering is but the entry or record
of an instrument correct in form, and on the The number of abortire attempts made face of it duly executed. For the proving of by various persons, is referred to as an evi- a
eri, a will, however, preparatory to its registration,
which is the final and forinal act, it is necesdence of the difficulty which exists in deal.
sary to look to the contents also; the formality ing with the subject, but must it not also of execution according to the statute being but be regarded as an evidence of the unsatis- a small part of what is requisite. factory footing upon which the jurisdiction “The will must be inspected in the first inis felt to stand, which induced men, enter- stance with reference to the provisions of the taining on all other public questions the Wills' Act, to see if it is duly executed, regard inost adverse views, to concur in thinking, being had to what is necessary to its validity; that in this instance, at all events, reform or, if there exists a defect in the clause of at. and amendment was needed? The docu
"testation, in order that it may be supplied by
the affidavit of an attesting witness." ment in question is framed with too much · But supposing all to be clear in form as judgment and discretion to fly in the face for registration, before the will can be proved of public opinion, by contending that the much previous inquiry is needed. present system is altogether perfect. It is “Is there an appointment of executors ? and, admitted “that the Courts of Probate as if so, is it express, or iinplied, according to the they now exist are too numerous, that they tenor? In either cases is it general or limited ? are susceptible of improrement," and that
od thot It may be the latter in respect to property,
may be.. “ practical amendments of the jurisdictions
*time, country; very cominonly one or the would not be resisted,
other : and there are frequently codicils alter.
but the proposed ing appointments made in testainentary papers transfer of any portion of the testamentary of earlier date, or revoking previous instru. jurisdiction is to be resisted to the death, ments in whole or in part.
Jurisdiction of the Ecclesiastical Courts-Manifesto from Doctors' Commons. 431 “ Again, the executors may be, and not uncompetent to do: and considering the mat frequently are, dead, or they desire to renounce, l in this light, we deny that we are treating or they decline to act, or are far away or have no agent in this country duly anthorised, or
lit as “ a mere squabble between the practheir residence is unknown. What is to be titioners in different courts
hat is to be ltitioners in different courts.” The power done in their absence? Then arises the ques- of selecting their legal advisers is one in tion as to the appointment of a residuary le- which the feelings and interests of the pubgatee. Is there one or more ?-for life or ab. lic are materially concerned. solute ?-contingent or substituted ?-how and It is conceded, however, that the queswhere ? --willing to act ?-- under what limita- tion presents a much wider basis. The tions entitled to the grant of administration (with the will annexed) ? Or it may be that
constitution and procedure of the Ecclesi. only a copy of the will (executed abroad) has
has lastical Courts are alike unsatisfactory. No been received. The necessity for a new limita- , adequate reason can be adduced to prove tion then arises. Or there is no residuary le- the necessity of separate tribunals for the gatee named, or he is dearl, or absent, or a administration of different kinds of prominor, or the appointment is limited, contin-perty disposed of under the same will; or gent, with a substitution. And in the course why there should be one tribunal to ascerof the will (which must be examined through- tain the fact if a will has been duly exeout) there may be found to occur occasionally
wycuted, and another, with a different mode interpolated sheets, more frequently-indeed, 1) very commonly-erasures, interlineations, and o
Land of procedure, to try the validity of the inalterations of various kinds. One among many strumen that might be specified is found in the atteinpt The manifesto from Doctors' Commons frequently made by testators to defeat the pro- asserts, not only in “ regard to expense, visions of the Act by obliterating parts of the the Prerogative Court will bear comparison will without the formalities prescribed by the with any Court in Westminster-hall, either Statute, and which must be accounted for.
common law or equity;" but, somewhat to “ It often happens in like manner that in the will reference is made to schedules, intended
the surprise of those who have occasionally codicils, &c., which must be subject of further
seen bills for business done there, it suginquiry.
gests, upon the authority of Mr. Freshfield, “Persons in the decline of life, women more no doubt an experienced and competent particularly, are prone to meddle with their judge in such matters, that “ the charges testamentary acts, and so create innumerable made and allowed in the Ecclesiastical difficulties.
Courts are very moderate," and that the “New cases continually arise. Many, and charges of proctors in those courts, as comsometimes new questions, arise as to the pro
pared with the charges of solicitors in conperty to be included in the estimate of the deceased's estate, to the value of which the exe
ducting similar cases in courts of law, "are cutor or administrator must be sworn, and on quite unexceptionable.” Be this as it may, which it the duty of the proctor rightly to ad- the unnecessary multiplication of tribunals vise, as between the party on the one hand and of legal agents and advisers, must be and the Government on the other, with a view attended with an increase of expense to the to the protection of the revenue. The manner suitors, and no change in the testamentary in which the stamps are provided by the proc-Ljurisdiction can be expected to obtain the tors is not only a great convenience to the executors or administrators, but afford a security
sanction of the Legislature, or the approval to the revenue against forgeries and fraud." of the public, which does not secure to the
latter the advantage of a considerable dimiAssuming the accuracy of all that is here nution of expense, in proceedings of the stated, without denying the extent of the most frequent occurrence,-the proof of responsibility falling upon the proctor, or wills in the common form. the exemplary manner in which this class of practitioners discharge the duties de
THE LORD MAYOR’S COURT. , volving upon them, we venture to ask, why may not all this be done, as well, as economically, and more conveniently, by the pri- MONOPOLY OF THE COMMON PLEADERS. vate or family solicitor as by the proctor?! As most of our readers are aware, up to Why should an executor or administrator a very recent period, there were only four be compelled to quit the professional friend attorneys entitled to practise in the Lord he has “ trusted and tried,” and confide Mayor's Court; but the Corporation of his interests and wishes to a stranger, how-|London, acting in accordance with the ever respectable and competent? There is spirit of the age, and in pursuance of a denothing required from a proctor in proving sign long contemplated, has at length rea will which a solicitor is not at least as moved the restriction as to this class of
432 The Lord Mayor's Court.-New Statutes effecting Alterations in the Law. practitioners, and thrown open the court plaintiff has sued out execution, discharged to all attorneys of the Superior Courts who from the defendant's claim. The expedidesire to become attorneys of the Lord ency of permitting a plaintiff, in the abMayor's Court. As the matter at present sence of the defendant, to seize his property stands, however, the liberal intention of the in the hands of a third party, who is not Corporation has only been half effected. | permitted to dispute the validity of the By the actual or supposed constitution of plaintiff's demand, has been much questhe Court, four barristers-called common tioned, but, guarded as the custom is by pleaders—are entitled to appear, as they various salutary regulations, it is understood allege, in exclusion of the other members to operate beneficially in practice, and seems of the bar, and those gentlemen hare very especially applicable to the present circumrecently insisted upon their alleged right, stances of the country, when the number of and persuaded the Recorder, who is the absconding debtors is daily increasing, in real Judge of the Lord Mayor's Court, to consequence of the impulse emigration has recognise the exclusive privilege of the received, and the new fields of enterprise common pleaders to the extent of laying it opened in Australia and other colonies. down as a rule, that in every case brought The Corporation of London are now, it before the Court, one of the common is said, impressed with the necessity of enpleaders must be retained at each side. larging the basis of those institutions of Whilst the counsel of the Lord Mayor's which they are the guardians, and we dare Court succeed in maintaining this mono- say, only require to be informed that the poly, the intentions of the Corporation to City Courts cannot be made useful to the render their chartered privileges useful to public at large, until they are open to both the community will be practically frus-branches of the Legal Profession. trated, for the public cannot, and ought not to be compelled, to resort to any Court in which they have not the unrestricted power
NEW STATUTES EFFECTING ALTEof selecting legal advisers-advocates as
RATIONS IN THE LAW. well as attorneys. It is to be lamented that personal interests of the narrowest
COUNTY ELECTION POLL. character, should, in this instance, interfere
16 Vict. c. 15. with the exercise of a jurisdiction which Provisions of 2 & 3 Wm. 4, c. 45, relatmay be employed with great advantage to ing to duration of poll repealed ; s. 1. the trading and commercial community. Regulating time for polling at elections
The Lord Mayor's Court has not only for knights of the shire ; s. 2. the cognizance of all personal and mixed Section 70 of 2 & 3 Wm. 4, c. 45, to reactions arising within the city and liber- main applicable to elections; s. 3. ties, without any limitation of amount, but| it also exercises a peculiar jurisdiction in The following are the sections of the cases arising upon the customs of London. Act:Of these customs, the most important, per-| An Act to limit the time of taking the poll in haps, is the proceeding known by the de Counties at contested Elections for Knights scription of “Foreign Attachment,” which of the Shire to serve in Parliament in Eng. is frequently resorted to with great advan land and Wales to One Day. tage when a debtor absents himself from
[18th March, 1853. England, leaving property in the hands of Whereas it is expedient to restrict the conthird persons, but without making any ar- tinuance of the polling at every contested elecrangement to satisfy his debts. The pro- tion of a knight or knights to serve in Parliaceeding by foreign attachment is open to
ment for any county or for any riding, parts, or
| division of a county to one day : Be it therea plaintiff whenever the defendant does not for
at does not fore enacted as follow:appear, or is not found within the jurisdic- 1. That so much of the Act passed in the tion, and it enables the plaintiff to attach 2 & 3 Wm. 4, c. 45, as authorises the continuproperty or debts owing to the defendant ance of the polling at every such contested from any person within the jurisdiction, election as aforesaid for two days, and the duties and after default, to have judgment against of the sheriff's deputy and poll clerks at such the person so holding the defendant's pro- |
poll during those days, and fixes the commenceperty, and who is thereupon, and after the
ment and limits the hours of polling on such
from the French garner, to warn, because he 1 The person in whose hands a defendant's is warned to come in and answer whether he is property is attached, is called the garnishee, indebted as alleged.
New Statutes.- Review : Warren's Law and Practice of Election Committees. 433 days, and prevents the commencement of such ing the ample contents of the volume. We polling on a Saturday, shall be and the same need not add that it displays the masterly is hereby repealed.
composition and literary excellence for 2. At every contested election of a knight or whil knights to serve in any parliament after the Ist
of which the learned author is distinguished. of October, 1853, for any county, or for any
| The first part of the work, which we noriding, parts, or division of a county, the politiced at the time of its publication (see 44 ing shall continue for one day only, and the L. O., pp. 193, 242, 381, 418) was divided poll shall commence at eight o'clock in the into thirteen chapters, treating of the Parmorning and be kept open until five in the af- liamentary Election Law of the United ternoon of such day, and the poll clerks to be Kingdom of Great Britain and Ireland. employed at the principal place of election and The present volume, which completes this other places shall, at the final close of the day's immorton poll, enclose and seal their several books, and
i important work, occupies fourteen chapters, shall publicly deliver thein, so enclosed and the subjects of which are as follow :sealed, to the sheriff, under-sheriff, or sheriff's 14. An Election Petition—its constitudeputy presiding at such poll, and every such tion and functions. deputy who shall have received any such poll books shall forthwith deliver or transmit the
15. Security for Costs and Expenses. same, so enclosed and sealed, to the sheriff or
16. The Petition and the Petitioners. his under-sheriff, who shall receive and keep ! 17. Lists of Objections to Voters. Jurisall the poll books unopened until the re-assem - diction of the Select Committee. bling of the court on the day next but one after 18, 19. Scrutiny. the close of the poll, unless such next day but 20. Information and irregularities in the one shall be Sunday, and then until the Mon- practical conduct of the Election. day following, when he shall openly break the '21. Bribery. seals thereon, and cast up the number of votes
22. Treating. as they appear on the said several books, and shall openly declare the state of the poll, and
23. Property Qualification of Candishall make proclamation of the member or date. members chosen not later that two o'clock in 24. Agency. the afternoon of the said day, any Statute to 25. Evidence. the contrary notwithstanding.
26. Practice. 3. The provisions concerning the adjourn 27. Costs. ment of the poll in cases of riot or open violence, and other the provisions of sect. 70 of 2 & 3 Forms and Precedents are subjoined, apWm. 4, c. 45, shall be and remain applicable to plicable to all the matters included in the every such contested election as aforesaid, as scope of the volume. if the said section were re-enacted in this Act, The whole work is of the first importance the words “the day of polling” being substi- to all practitioners in both branches of the tuted therein for the words “ one of the two
Profession in any respect engaged in busidays of polling."
ness connected with the election of mem
bers of Parliament. We shall select for NOTICES OF NEW BOOKS. particular observation the chapters on
| Agency and Evidence as those in which a The Law and Practice of Election Com- large proportion of the members of the mittees ; being the completion of a Ma Profession are peculiarly interested. nual of Parliamentary Election Law. 1st. As to Agency. In order to affect By SAMUEL WARREN, Esq., F.R.S., of the member, whose return is sought to be the Inner Temple, one of her Majesty's invalidated, with responsibility for the acts Counsel, and Recorder of Hull. London: of his agents at the election, there must Butterworths. 1853. Pp. 658. first be satisfactory proof of authorised
MR. WARREN has now completed his agency. Mr. Warren thus describes the important work on Parliamentary Election acts to be looked for on such occasions :Law and the Practice of Election Commit-! «L_I
1 “1.—Being seen, more or less frequently, tees. The second volume has been some- during the election, in company with the canwhat delayed, but has received the advan-ldidate.es
delayed, but has received the advan-didate, especially canvassing with him, or tage of the most ample consideration without him, and attending, more or less freand recent experience. It comprises the quently, at his committee-rooms. result of all the latest Statutes and de- “II.-Being a member, more or less active cisions, and the whole matter has been and prominent, especially if as chairman, of admirably collated and arranged both the candidate's committee; and assisting in in regard to the subject matter and the
the conducting the general business of the election
-as, convenience of the practitioner in consult- 1.By making arrangements with the re
Review : Warren's Law and Practice of Election Committees. turning officer about the hustings, They were excluded from a court of justice polling-booths, and otherwise ;
as though labouring under a moral leprosy." ü.-Engaging and paying check.clerks, Lord Denman's Act, in 1843, removed the
agents, porters, Inessengers, door disabilities on the ground of interest, but keepers, &c.
excluded the parties to the record, and the iii.-Sending advertisements to the news
di provisions of the Act evidently applied to papers, drawing up and despatching ad-? dresses, circulars, &c.
actions, suits, and proceedings in Courts of iv.-Engaging committee-rooms.
Justice. Mr. Warren thus proceeds :1.--Examining bills, &c., &c. “III.--Referring voters, or others concerned .
“ Immediately after Lord Denman's Act, or interested in the election, to the candidate, viz., in 1844, was passed Stat. 7 & 8 Vict. c. who sees them without objection.
103 ; the 77th section of which retained the “IV. Having such persons referred to him.. exclusive clause of the Acts of 1813, and by the candidate.
1828, doubtless without attention having been V.- Bills checked and vouched by him 'drawn to it; the draftsman mechanically transafterwards paid by the candidate, or recognised berring
nised 'ferring to the new Bill, the section contained by him.”
in the old one; and again, in 1848, which is
still more unfortunate, the same clause was inAnd the following instances are given in advertently incorporated, with this faulty in. which it was held that the agency of an at-gredient, into the Election Petitions Act, 1948. torney was sufficiently proved :
Even, therefore, had Lord Denman's Act of
1843 applied to committees, it is repealed, “Great Yarmouth [18437.-An attorney quoad Select Committees, as far as concerns was constantly at the committee-room, at- an interested witness' subscribing the petitending to the business of the election tion. It is to be observed, however, that by there, and in the afternoon attending meet- the Election Petitions' Act, 1848, the petitioner ings of the committee, at which the sitting is not to sign the recognizance; but by s. 3 it members were frequently' present. He had is confined to the sureties; and by s. 2, the also disbursed 2001. for the payment of clerks' only person who can subscribe an election and other persons employed in the election. 'petition, must be a voter, or a candidate, woo
“Here, also, prima fucie evidence was held to would be liable to reimburse their sureties, if be established; and the attorney's declarations the latter should be calied upon to pay the were received against the sitting members, amount of the recognizance. In the Danwho were ultimately unseated, for “bribery, garcon case, a witness who had signed the peli. through their agents," but without evidence of tion, was objected to; but on its appearing their knowledge or consent.
that he had not entered into the recognizance, “Horsham, Second, (1848).--An attorney and had consequently no interest in the ques. was present on behalf of the sitting member,' tion of costs, he was held admissible. And when the polling arrangements were made with again, where the petitioner admitted that he the town clerk. · He canvassed with the sitting had retained the agent, whose expenses he bemember; once introduced a voter to him ; lieved himself liable to pay, and had subscribed brought up voters to the poll; his clerk had to a fund to defray the costs of the petition, attended at the registration previous to the but had not entered into the recognizance, he election (with an avowed agent of the sitting was admitted as a witness. A surety to the member); was present at an entertainment recognizance, however, was of course rejected. given to the voters at an inn, when the sitting The objection in each of these cases (which member attended, and was in the room which were previous to the year 1843) was, that the had been kept private, by order, for the sitting witness was interested in the result of the 'member's' friends, and was seen conversing petition. with him and the landlord. Here, also, a “Down to the year 1851, therefore, there prima facie case of evidence was held to have undoubtedly existed difficulty as to the power been proved.”
of a Select Committee, notwithstanding Lord
| Denman's Act, to examine a petitioner, other2nd. In the chapter on Evidence, Mr.
Mr: wise proved to be an interested witness.' In Warren's acute attention to the several that year, however, passed the Statute 14 & 15 Statutes has detected an apparent exception Vict. c. 99, which, on a proper construction, to the admissibility of an interested witness appears to dispose of the difficulty in ques. before a Select Committee for the trial of tion.” an election petition. He points out that still the question remains—are the “ parthe Grenville Act, 10 Geo. 3, c. 16, s. 18,
ties” referred to in the Act compellable to gave power to examine witnesses on oath, without allusion to interested witnesses.
answer questions tending to criminate them Then the Act 53 Geo. 3, c. 71, excepted
selves ? On this essential point, Mr. Warinterested witnesses. “At that time," says
ren observes, thatMr. Warren, “the law respecting interested “According to the law of England, though witnesses was flourishing in full bloom. a man be competent to prove his own crime, to