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 pregnant 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 attended with such alarming results, that, even informed that :were its transfer to another Court absolutely necessary, the wisest would shrink most from the responsibility of the measure. : are "1. In 1835 Lord Brougham introduced a bill having for its object to provide one testamentary Court for each province. "The same Court exercises a jurisdiction in contentious matters intimately associated with that in common form, which has for years been transacted to the satisfaction of the pub. lic generally, with credit to the administration of the law and without reproach to its prac "2. In the same year the Attorney and Solicitor-General and Dr. Lushington introduced a bill for the establishment of one Court only. "3. In 1836 the Lord Chancellor brought in a bill for the establishment of one Court titioners. for England and Wales, to be called Her Majesty's Court of Probate,' &c. 4. In the same year Serjeant Goulburn, Mr. Cayley, and Mr. Jervis brought in a bill, the object of which was to alter the local jurisdictions of all Ecclesiastical Courts, giving to the Prerogative Court of Canterbury exclusive jurisdiction in London and the counties around it, and assigning a limited jurisdiction to the other Courts. “5. In 1843 Dr. Nicholl, Sir James Graham, and the Attorney-General brought in a bill to consolidate the Testamentary Jurisdiction of England and the Court of Arches. 6. In the same year Dr. Elphinstone, Mr. Stock, and Mr. Hayter brought in a bill to consolidate the Arches and Prerogative Courts. "7. In 1824 Lord Chancellor Lyndhurst brought in a bill to establish Metropolitan and Diocesan Courts throughout the kingdom, and give Contentious Jurisdiction to each. "8. In 1845 Lord Cottenham brought in a to establish one Court of Probate in Lon "The suggested evils arising out of what I may be defective in its jurisdiction are rather theoretical than practical, and, when they are not otherwise counterbalanced by corresponding advantages, are easily susceptible of amendment." The importance of the duties devolving upon a proctor in proving a will are stated in the manifesto," with a clearness and minuteness of detail which indicate the practical experience of the writer, and afford a useful lesson to such of our readers as may hereafter, from the altered state of the law, be called upon to perform similar duties on behalf of his clients' without resorting to the agency of that select body which has hitherto monopolised this lucrative branch of practice. It is said : "No two things can be more distinct than proving and registering a will. "The registering is but the entry or record of an instrument correct in form, and on the face of it duly executed. For the proving of a will, however, preparatory to its registration. which is the final and forinal act, it is necessary to look to the contents also; the formality of execution according to the statute being but a small part of what is requisite. "The will must be inspected in the first instance with reference to the provisions of the Wills' Act, to see if it is duly executed, regard being had to what is necessary to its validity; or, if there exists a defect in the clause of attestation, in order that it may be supplied by the affidavit of an attesting witness. The number of abortive attempts made by various persons, is referred to as an evidence of the difficulty which exists in dealing with the subject, but must it not also be regarded as an evidence of the unsatisfactory footing upon which the jurisdictiona is felt to stand, which induced men, entertaining on all other public questions the most adverse views, to concur in thinking, that in this instance, at all events, reform and amendment was needed? The document in question is framed with too much judgment and discretion to fly in the face of public opinion, by contending that the 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 implied, according to the they now exist are too numerous, that they tenor? In either cases is it general or limited i are susceptible of improvement," and that It may be the latter in respect to property, "practical amendments of the jurisdictions other: and there are frequently codicils altertime, country; very commonly one or the would not be resisted," but the proposed ing appointments made in testamentary 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. But supposing all to be clear in form as for registration, before the will can be proved much previous inquiry is needed. Jurisdiction of the Ecclesiastical Courts-Manifesto from Doctors' Commons. 431 of selecting their legal advisers is one in which the feelings and interests of the public are materially concerned. No "Again, the executors may be, and not un-competent to do; and considering the matter frequently are, dead, or they desire to renounce, in this light, we deny that we are treating or they decline to act, or are far away or have it as no agent in this country duly authorised, or a mere squabble between the practheir residence is unknown. What is to be titioners in different courts." The power done in their absence? Then arises the question as to the appointment of a residuary legatee. Is there one or more?-for life or absolute?-contingent or substituted ?—how and where?-willing to act?-under what limitations entitled to the grant of administration (with the will annexed)? Or it may be that only a copy of the will (executed abroad) has been received. The necessity for a new limitation then arises. Or there is no residuary legatee named, or he is dead, or absent, or a minor, or the appointment is limited, contingent, with a substitution. And in the course of the will (which must be examined throughout) there may be found to occur occasionally interpolated sheets, more frequently-indeed, very commonly-erasures, interlineations, and alterations of various kinds. One among many that might be specified is found in the attempt frequently made by testators to defeat the provisions of the Act by obliterating parts of the will without the formalities prescribed by the Statute, and which must be accounted for. "It often happens in like manner that in the will reference is made to schedules, intended codicils, &c., which must be subject of further inquiry. "Persons in the decline of life, women more particularly, are prone to meddle with their testamentary acts, and so create innumerable difficulties. It is conceded, however, that the question presents a much wider basis. The constitution and procedure of the Ecclesiastical Courts are alike unsatisfactory. adequate reason can be adduced to prove the necessity of separate tribunals for the administration of different kinds of property disposed of under the same will; or why there should be one tribunal to ascertain the fact if a will has been duly executed, and another, with a different mode of procedure, to try the validity of the in strument! The manifesto from Doctors' Commons asserts, not only in " regard to expense, the Prerogative Court will bear comparison with any Court in Westminster-hall, either common law or equity;" but, somewhat to the surprise of those who have occasionally seen bills for business done there, it suggests, upon the authority of Mr. Freshfield, no doubt an experienced and competent judge in such matters, that "the charges made and allowed in the Ecclesiastical 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 perty to be included in the estimate of the de-pared with the charges of solicitors in conceased's estate, to the value of which the exeducting 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- jurisdiction can be expected to obtain the tors is not only a great convenience to the exe-sanction of the Legislature, or the approval cutors or administrators, but afford a security of the public, which does not secure to the to the revenue against forgeries and fraud." latter the advantage of a considerable diminution of expense, in proceedings of the most frequent occurrence,--the proof of wills in the common form. THE LORD MAYOR'S COURT. MONOPOLY OF THE COMMON PLEADERS. Assuming the accuracy of all that is here stated, without denying the extent of the responsibility falling upon the proctor, or the exemplary manner in which this class of practitioners discharge the duties devolving upon them, we venture to ask, why may not all this be done, as well, as economically, and more conveniently, by the private 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 have 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 of selecting legal advisers-advocates as well as attorneys. It is to be lamented that personal interests of the narrowest character, should, in this instance, interfere with the exercise of a jurisdiction which may be employed with great advantage to the trading and commercial community. " NEW STATUTES EFFECTING ALTE- COUNTY ELECTION POLL. Provisions of 2 & 3 Wm. 4, c. 45, relating to duration of poll repealed; s. 1. Regulating time for polling at elections for knights of the shire; s. 2. Section 70 of 2 & 3 Wm. 4, c. 45, to remain applicable to elections; s. 3. The following are the sections of the Act: An Act to limit the time of taking the poll in Counties at contested Elections for Knights of the Shire to serve in Parliament in England and Wales to One Day. [18th March, 1853. The Lord Mayor's Court has not only the cognizance of all personal and mixed. actions arising within the city and liberties, without any limitation of amount, but it also exercises a peculiar jurisdiction in cases arising upon the customs of London. Of these customs, the most important, perhaps, is the proceeding known by the description of Foreign Attachment," which is frequently resorted to with great advantage when a debtor absents himself from England, leaving property in the hands of third persons, but without making any arrangement to satisfy his debts. The proceeding by foreign attachment is open to a plaintiff whenever the defendant does not appear, or is not found within the jurisdic1. 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, and after default, to have judgment against the person so holding the defendant's property,1 and who is thereupon, and after the 1 The person in whose hands a defendant's property is attached, is called the garnishee, Whereas it is expedient to restrict the continuance of the polling at every contested election of a knight or knights to serve in Parliament for any county or for any riding, parts, or division of a county to one day: Be it therefore enacted as follow: election as aforesaid for two days, and the duties of the sheriff's deputy and poll clerks at such poll during those days, and fixes the commencement and limits the hours of polling on such from the French garner, to warn, because he is warned to come in and answer whether he is indebted as alleged. New Statutes.-Review: Warren's Law and Practice of Election Committees. days, and prevents the commencement of such polling on a Saturday, shall be and the same is hereby repealed. 433 ing the ample contents of the volume. We need not add that it displays the masterly 2. At every contested election of a knight or which the learned author is distinguished. composition and literary excellence for knights to serve in any parliament after the 1st 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 important work, occupies fourteen chapters, poll, enclose and seal their several books, and shall publicly deliver them, 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 same, so enclosed and sealed, to the sheriff or his under-sheriff, who shall receive and keep all the poll books unopened until the re-assembling of the court on the day next but one after the close of the poll, unless such next day but one shall be Sunday, and then until the Monday following, when he shall openly break the seals thereon, and cast up the number of votes as they appear on the said several books, and shall openly declare the state of the poll, and shall make proclamation of the member or members chosen not later that two o'clock in the afternoon of the said day, any Statute to the contrary notwithstanding. 3. The provisions concerning the adjournment of the poll in cases of riot or open violence, and other the provisions of sect. 70 of 2 & 3 Wm. 4, c. 45, shall be and remain applicable to every such contested election as aforesaid, as if the said section were re-enacted in this Act, the words "the day of polling" being substituted therein for the words "one of the two days of polling." NOTICES OF NEW BOOKS. 15. Security for Costs and Expenses. 16. The Petition and the Petitioners. 17. Lists of Objections to Voters. Jurisdiction of the Select Committee. 18, 19. Scrutiny. 20. Information and irregularities in the practical conduct of the Election. 21. Bribery. 22. Treating. 23. Property Qualification of a Candidate. 24. Agency. 25. Evidence. Forms and Precedents are subjoined, applicable to all the matters included in the scope of the volume. The whole work is of the first importance to all practitioners in both branches of the Profession in any respect engaged in busi ness connected with the election of members of Parliament. We shall select for 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 thus describes the agency. acts to be looked for on such occasions :— MR. WARREN has now completed his important work on Parliamentary Election Law and the Practice of Election Commit"I.-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- 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 the candidate's committee; and assisting in in regard to the subject matter and the conducting the general business of the election convenience of the practitioner in consult both -as, i.-By making arrangements with the re 431 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; ii.-Engaging and paying check-clerks, agents, porters, messengers, doorkeepers, &c. iii.-Sending advertisements to the newspapers, drawing up and despatching addresses, circulars, &c. iv.-Engaging committee-rooms. -Examining bills, &c., &c. "III.-Referring voters, or others concerned or interested in the election, to the candidate, who sees them without objection. "IV. Having such persons referred to him, by the candidate. "V.-Bills checked and vouched by him afterwards paid by the candidate, or recognised by him." And the following instances are given in which it was held that the agency of an attorney was sufficiently proved : as though labouring under a moral leprosy." Lord Denman's Act, in 1843, removed the disabilities on the ground of interest, but excluded the parties to the record, and the provisions of the Act evidently applied to actions, suits, and proceedings in Courts of Justice. Mr. Warren thus proceeds : "Immediately after Lord Denman's Act, viz., in 1844, was passed Stat. 7 & 8 Vict. c. 103; the 77th section of which retained the exclusive clause of the Acts of 1813, and 1828, doubtless without attention having been drawn to it; the draftsman mechanically transferring to the new Bill, the section contained in the old one; and again, in 1848, which is still more unfortunate, the same clause was inadvertently incorporated, with this faulty ingredient, into the Election Petitions Act, 1848. Even, therefore, had Lord Denman's Act of 1843 applied to committees, it is repealed, "Great Yarmouth [1843].-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 suretics; 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, who "Here, also, prima facie 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 Dunwho were ultimately unseated, for "bribery, garcon case, a witness who had signed the petithrough 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 queswas 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 prima facie case of evidence was held to have been proved." "Down to the year 1851, therefore, there undoubtedly existed difficulty as to the power of a Select Cominittee, notwithstanding Lord Denman's Act, to examine a petitioner, other 2nd. In the chapter on Evidence, 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 quesbefore a Select Committee for the trial of tion." an election petition. He points out that the Grenville Act, 10 Geo. 3, c. 16, s. 18, gave power to examine witnesses on oath, without allusion to interested witnesses. Then the Act 53 Geo. 3, c. 71, excepted interested witnesses. At that time," says Mr. 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 ties" referred to in the Act compellable to Still the question remains-are the "paranswer questions tending to criminate themselves? On this essential point, Mr. Warren observes, that— |