« EelmineJätka »
State of Law Bills in Parliament.
There seems now to be an inconsistent | the Peace Bill, to withdraw it; and thus attempt made to increase the costs in the the obnoxious exclusion of Solicitors from County Courts even beyond those of the the County Magistracy remains as before. Superior Courts, in order to attract the It will be recollected that on the 2nd readsuitors to the inferior tribunal. We hear, ing several members supported the amendby reiteration without end, of the popularity ment proposed on behalf of the Profession, The Bill, of the County Courts, and yet their pro- and that when the Bill was in Committee moters dare not enter into competition with the clause was not arrived at. the Superior Courts. The Legislature has however remains on the List of the House been induced, contrary to all the rules of of Commons. modern "free trade," to abrogate the power of a suitor to employ his attorney in the Superior Court to recover debts under 201., though he will thereby save his time and trouble. The truth we believe to be, that the County Courts greatly disgust a large proportion of creditors, and in so far operate as a denial of justice. We are assured that a multitude of traders abandon their debts, rather than lose their time and suffer the loss and inconvenience incident to the attendance of taking out the summons, appearing at the hearing by themselves and their witnesses, and then attending to search for the payment of the instalments of the debt.
Under proper limits, and an amended practice, these Courts might be useful, but the incessant projects of extension and enlargement ought to be restrained, or evils will arise of which the caterers for popular applause are little aware.
The proposed addition to the judicial power of the House of Lords will be noticed in a separate article, and the Bill as amended in Committee will be found in a
The following classification of the Bills pending before the two Houses, will show the stages at which they have arrived, and the general subjects to which they relate: Royal Assents.
LAW OF PROPERTY.
Settled Estates.-Passed the Lords, and stands for 2nd reading in the Commons, June
Married Women's Reversionary Interest in
Charitable Uses. Passed the Commons.
Passed the Commons.
For 2nd reading in the Lords.
Church Rates. In Committee.
Drainage Act Amendment. In Select Committee of the Lords.
Tithe Commutation. In Select Committee of the Commons.
COURTS OF LAW AND EQUITY.
Appellate Jurisdiction of the House of Lords.
subsequent page. The salary of the pro-
The contested Bill as to County and Borough Police has at length passed the House of Commons, and has been read a first time by the Lords. Being a Government Bill, it may be expected to pass; yet many of their Lordships take an active interest in the police management of the several localities in which their estates are situate, and notwithstanding the alterations made in the Commons, there may be still further amendments.
Judgments Execution.-Mr. Craufard. For 2nd reading, July 2.
Procedure and Evidence.-Sir F. Kelly. In Committee.
County Courts Amendment. In Committee. Divorce and Matrimonial Causes. In Select Committee of the Lords.
Bankruptcy (Scotland). In Committee.
MERCANTILE AND COMMERCIAL LAW.
Law of Partnership. In Committee, June 9.
For 2nd reading in the Lords. Joint-Stock Companies Winding-up. Passed the Lords. For 2nd reading in the Commons.
CRIMINAL LAW AND JURISDICTION OF MA
We regret to hear that Mr. Colville has been induced by the members who oppose some of the provisions in his Justices of printed.]
Trust Property Misappropriation. [Not yet
Law Bills in Parliament.-Appellate Jurisdiction of the House of Lords.
County and Borough Police. Passed the Commons.
Qualification of Justices of the Peace. In Committee.
Public Prosecutors. In Select Committee of the Commons.
Shipping Tolls. In Select Committee (Commons.)
Marriages in Scotland. For 3rd reading.
to any organic change in the consti ution of the august Court.
The persons examined as witnesses from Scotland consisted chiefly of those who either had already reached the judicial seat, or who expected at no distant day to do so. the judgments of a Court of which they Such persons would naturally be partial to themselves either were or expected to become members. It cannot be very palatable to the Judges of the Court of Session to find their decisions so frequently reversed by the House of Lords; and with an almost excusable self-complacency they may suppose that such reversals are rather owing to the part of the Judges of last resort, than a want of knowledge of the Scotch law on The community, however, have little symto any defect in the judgments themselves. pathy with such feelings. They believe that in so far as the judgments of the inAPPELLATE JURISDICTION OF THE most cases magnified and ameliorated. Yet ferior Courts are reversed, the law is in
Public Health. For 2nd reading. Ecclesiastical Judges and Chancellors. For 2nd reading.
Burial Acts Amendment. For 2nd reading.
HOUSE OF LORDS.
to the evidence of parties connected with the Court of Session must be ascribed all that is objectionable in the present report. Of what are called "the principal objections raised by the witnesses against the present constitution and practice of this ultimate Court of Appeal," the third is thus stated "that the administration of Scctch law
THE House of Lords being the highest legal tribunal in the kingdom, and the Court of ultimate resort, it is eminently desirable that its judgments should command the confidence both of the Public and of the Profession. Questions involving an immense amount of property, the happiness has been at times unsatisfactory from the of families, the character, the liberty, and want of familiarity with the Scotch law, even the lives of individuals are cognizable consequent upon the Law Lords being exby that august tribunal; and it is conse- clusively English Judges." No doubt this quently of the last importance that the is merely the opinion of the persons exajudicial functions of the House should be mined from Scotland; but it is an opinion exercised by the greatest legal intellects of which we believe is not shared in by the the country. public generally. We cannot believe that We believe, notwithstanding the occa- there is anything so abstruse and recondite sional objections of some disappointed liti- in the principles of Scotch law as to be begants, that the judgments of the House of yond the reach of minds of the greatest Lords on Scotch appeals have given almost judicial grasp. But if the want of fauniversal satisfaction. However plausible miliarity with the Scotch law is a good obthe theory that questions of Scotch law jection to English Judges, how does it should be decided by Judges familiar with happen that in every appeal case from that form of jurisprudence, the fact is not Scotland the interests of the litigants on the less certain that the eminent individuals both sides are invariably committed to who have directed the judgments of the English counsel? There is not a case from Supreme Court, have brought an amount that part of the kingdom at the present of judicial learning to bear upon the ques- moment in which the Solicitor-General of tions submitted to them which has cast England, Sir Richard Bethell, is not ennew and important light on some of the most intricate points of law, carrying at the same time conviction to the minds both of the suitors and of the public. Much caution therefore is required in dealing with a system which has wrought so well in practice; and it will be matter of lasting regret if the report of the present committee shall lead
gaged, and we have never yet heard that he or any other English Barrister finds any difficulty in mastering even the most complex and abstruse principles of Scotch law.
The Committee, in treating of the mode in which appeal cases should be disposed of, state that considering the importance of the causes brought to this ultimate Court of
Appellate Jurisdiction of the House of Lords.
Appeal, the House should as a general rule Peers. He was the Lord Advocate in 1851, be able to reckon on the attendance of not under Lord Derby's administration, and on less than three Law Lords to assist in the the retirement of Lord President Boyle, hearing of all appeals. There may not was promoted at one step to his present be equal unanimity in regard to the mode position. His salary as Lord President and in which it is proposed to attain this ob- Lord Justice General is 5,500l. Were he ject:-"The Committee are of opinion that promoted to the House of Lords, Mr. Monthe attendance of others equally qualified to crieff, the Lord Advocate under the present sit with those peers in judgment on the de- Ministry, would as a matter of professional cision of the inferior Courts would be best right, be promoted to his place. This may secured by the creation of other high legal serve to explain how both the great political offices in connexion with the House of parties concur in the recommendations of Lords, with such salaries as would secure this report. But the important question their acceptance by the most eminent for the country to consider is, how far the Judges. The Committee are therefore of interests of the public will be served? Scotopinion that it is desirable that two offices land will be deprived of its best Judge should be created, to be held by two Law whom it can but ill spare; while the appeal Lords, whose duty it should be to assist business of the House of Lords will be virthe House in the performance of its judicial tually handed over to him. It can scarcely duties; and they accordingly recommend be supposed that when a Judge trained to that her Majesty should be empowered to the Scotch law, and owing his appointment appoint two lords to be deputy speakers of to that circumstance, is present, the other the House of Lords, with salaries attached eminent Law Lords will trouble themselves to their offices." It is also recommended about Scotch appeals. The practical effect that persons who have held some high ju- of the change, therefore, will be to make dicial office in the United Kingdom, for not the Scotch Law Lord the sole Judge in less than five years, should alone be eligible for these appointments. And it is proposed that the salary attached to the office shall be 6,000l. per annum.1
Scotch appeal cases-a result which we would consider anything but an improvement on the present system. Indeed it would be infinitely better, and much less In referring to the subject of Scotch ap- expensive to create a new Chamber in the peals, in connexion with the proposed Court of Session, in which the present Lord changes, the Committee, whilst stating that President might exercise appellate jurisdicnearly all the witnesses have admitted that tion. This would at least simplify the provery material advantage has been derived by ceedings, and save the litigants both the Scotland in the course of the administration trouble and expense of carrying their causes of the law by the House of Lords, say-to London, merely to be adjudicated upon "It appears to the majority of the Bar and by a Scotch lawyer. the writers of the signet in Edinburgh, are in favour of one of the members of this Appellate Court being a Scotch lawyer.”But they add-" It is not proved that this is the opinion either of the mercantile classes, or the community at large in Scotland." It is important to observe how this point is disposed of "The Committee are of opinion that no fixed or invariable rule should be adopted on this subject.
[We are indebted for the preceding ob servations to a Northern Correspondent, whose communication, however, we have ventured to abridge; and in the next page will be found the Bill for carrying the Report of the Select Committee into effect.]
APPELLATE JURISDICTION BILL.
Now under this apparent caution it is not difficult to discover what is really con- the discharge of the Appellate Jurisdiction of THIS Bill, "to make better Provision for templated. The salary is fixed at a sum the House of Lords," recites that it is expedient which will make it an object even for the to secure the regular attendance in the House head of the Scotch Court to accept of the of Lords during the hearing of appeals and appointment. Mr. Macneill, the present writs of error of an increased number of peers President of the Court of Session, is un- who have filled high judicial offices, and therequestionably one of the ablest Scotch law-fore proposes to enact :yers of his time, and perhaps the only 1. It shall be lawful for her Majesty by Judge of that Court who would have any chance of being translated to the House of
'The Bill proposes only 5,000l. a-year.
letters patent under the Great Seal of the United Kingdom, to appoint two persons, qualified as hereinafter-mentioned, to be deputy speakers of the House of Lords, to as
Appellate Jurisdiction Bill.
sist in the judicial business of the said House, and every such deputy speaker shall hold his office during good behaviour: Provided always, that it shall be lawful for her Majesty to remove any such deputy speaker from his office upon the addresses of both Houses of Parliament.
2. No person except hereditary peers shall be qualified to be appointed deputy speaker under this Act who shall not have held for a period of five years or upwards, or for periods amounting together to five years or upwards, any one or more of the judicial offices following, viz., Lord Chancellor of Ireland; Master of the Rolls in England; Master of the Rolls in Ireland; Lord Justice of the Court of Appeal in Chancery; ViceChancellor (in England); Judge in any of the Superior Courts of Law at Westminster or in Dublin; Judge of the Court of Sessions in Scotland; Judge of the High Court of Admiralty of England; Judge of the Prerogative Court of the Archbishop of Canterbury.
3. There shall be payable to each such deputy speaker the yearly salary of 5,000l., or such a yearly sum as with any pension, retiring allowance, or compensation to which he may be entitled in respect of any office for merly held by him, will make up a yearly sum of 5,000l.; and such salary or yearly sum shall be payable out of the Consolidated Fund of the United Kingdom by quarterly payments, free of all deductions, except income tax, on the 5th day of January, the 5th day of April, the 5th day of July, and the 10th day of October in every year, such salary or yearly sum nevertheless to grow due from day to day, and to be subject to apportionment at the commencement and termination thereof accordingly.
4. It shall be the duty of the said deputy speakers, unless prevented by illness or other sufficient cause, to attend the House of Lords during the hearing and decision of appeals and
writs of error.
paid; and if the annual amount of such profits be less than such an annuity, then no more of such annuity shall be paid than will, with the annual amount of such profits, make up the annual sum of 3,750/.: Provided also, that no such grant of an annuity shall be valid unless speaker for the period of 15 years, or have such person have held the office of deputy held such office and any of the judicial offices hereinbefore-mentioned for periods amounting together to 15 years, or be affected with some permanent infirmity disabling him from the due execution of his office of deputy speaker, which shall be distinctly recited in the said grant.
6. If her Majesty by her letters patent shall have granted or shall hereafter grant a peerage for life only to any person who shall be appointed Lord High Chancellor of Great Britain or deputy speaker under this Act, such person, on receiving the appointment of Lord High Chancellor of Great Britain or of deputy speaker under this Act, shall be entitled to sit and vote in the House of Lords, and to have and enjoy all the rights and privileges of a Peer of Parliament during his life, if there are not more than three other persons having seats in the House of Lords as peers for life only at the time he shall be so created: Provided always, that not more than four persons shall nave seats in the House of Lords at one time as peers for life only: Provided also, that if any person to whom a peerage for life only shall have been granted shall inherit or receive a patent for an hereditary peerage, he shall not be reckoned as one of the peers having a seat in the House of Lords for his life only.
7. For disposing of any appeals or writs of error which may remain undisposed of at the end of any Session it shall be lawful for the House of Lords to sit and act during the Prorogation of Parliament; and all orders and proceedings of the said House in relation to appeals and writs of error, and the matters conected therewith, during such prorogation, shall be as valid and effectual as if Parliament had been then sitting; provided that the times of such sittings during the prorogation or the time of the first meeting of the House for that purpose be appointed by order of the House during the Session of Parliament; and that no business other than the hearing and determination of appeals and writs of error, and the matters connected therewith, shall be transacted by such House during such prorogation.
5. It shall be lawful for her Majesty, by letters patent under the Great Seal of the United Kingdom, to grant to any person holding the office of a deputy speaker of the House of Lords under this Act an annuity for his life, not exceeding 3,7501, to commence immediately after his resignation of such office, such annuity to be paid out of the Consolidated Fund of the United Kingdom, free from all deductions whatsoever, except income tax, by quarterly payments on the 5th day of January, the 5th day of April, the 5th day of July, and the 10th day of October in every year, such annuity 8. Nothing in this Act shall in anywise nevertheless to grow due from day to day, and abridge or affect the right of her Majesty to to be subject to apportionment at its com- appoint deputy speakers of the House of mencement and termination accordingly: Pro-Lords, but such deputy speakers may be apvided always, that in case any person to whom any such annuity is granted hold at any time any other pension or office of profit under her Majesty, then while such person holds such pension or office such annuity shall if the annual amount of the profits of such pension or office be equal to such annuity, cease to be
pointed from time to time in the same manner and with the same rights and authorities as if this Act had not been passed, and shall, unless her Majesty shall otherwise direct, have precedence of the Deputy Speakers appointed under this Act.
Amended Oath of Abjuration Bill.-Law of Attorneys and Solicitors.
AMENDED OATH OF ABJURATION
LAW OF ATTORNEYS AND
NEARLY SIX YEARS.
1. THE oath of abjuration and the assurance DELIVERY OF BILL OF COSTS.-LAPSE OF as set forth and prescribed in the said Act, or as set forth and prescribed in any previous Act or Acts, and the affirmation instead thereof as prescribed by an Act passed in the 3 & 4 Wm. 4, c. 49, intituled "An Act to allow Quakers and Moravians to make Affirmation in all Cases where an Oath is or shall be required," shall not from and after the passing of this Act be required to be taken, subscribed, or made upon any occasion or for any purpose whatsoever.
It appeared that in November, 1848, a person named Wilson retained Mr. Edward Vann as his attorney to defend him against a charge preferred at the Worship Street Police Court for criminally assaulting a female child of tender years; and that Wilson requested him to keep no record or memorandum of the business, and that no entry should be made nor account kept 2. In lieu of the oath of abjuration and of touching anything which might be done in the assurance set forth and pescribed by the relation to the charge. Wilson also resaid recited Act or any other Act, the follow-quested Mr. Vann not to allow any of his ing oath shall be substituted, which shall be clerks to know anything of the matter, and intituled "An Oath for securing the Protestant Succession to the Crown as by Law stated that he did not wish for any account established," and shall be in the words following; that is to say,
or explanation as to what might be paid by Mr. Vann to the friends of the child, or their attorney, but requested to be allowed to place in his hands a sum of money to do the best he could with it on his behalf.
"I A. B. do faithfully promise to maintain, support, and defend, to the utmost of my power, the succession of the Crown, which Mr. Vann deposed in his affidavit that succession, by an Act intituled An Act for the further Limitation of the Crown, and Wilson placed in his hands a sum of 2001. better securing the Rights and Liberties of the wherewith to pay, satisfy, and discharge all Subject,' is and stands limited to the Princess the costs, charges, and expenses of his deSophia, Electress and Duchess Dowager of fence against the said charge, and also all the Hanover, and the heirs of her body, being moneys which it might be necessary to pay Protestants. So help me GOD." in order to free him from the said charge, And every statutory enactment now in force with respect to the oath of abjuration or the or to induce the friends of the child to foreassurance hereby abolished shall henceforth go any action for damages for the alleged apply to the oath hereby substituted, in the assault; and that he then agreed with Wilson same manner as if such last mentioned oath to receive and did receive from him the said had been expressly mentioned or referred to in and by such statutory enactments instead of the oath of abjuration and the assurance hereby abolished.
3. Every person permitted by the said Act of his late Majesty King William the Fourth to make his affirmation instead of the oath of abjuration and assurance shall in lieu of the oath hereby substituted, and of the affirmation contained in the last-mentioned Act, make his solemn affirmation in the following words; that is to say,
sum of money, and then agreed to bear the said Wilson harmless from all costs, damages, &c., in relation to his defence and his liberation from the said charge. Mr. Vann then went on to say that it was then agreed at the express request of Wilson that no account in writing or otherwise was to be kept or rendered by him to Wilson of any costs, charges, disbursements, or expenditure relating to the said defence, or the liberation of Wilson from the said charge, or of the said sum of money; that "I A. B., being one of the people called he did afterwards apply and dispose of the Quakers [or, one of the persuasion of the said sum of money for Wilson's benefit in people called Quakers, or of the United Bre- accordance with the terms upon which he thren called Moravians, as the case may be], received it. Ultimately Mr. Vann succeeddo solemnly promise, That I will be true and ed in procuring the prisoner's discharge and faithful to the succession of the Crown, which obtaining a compromise from the parents of succession, by an Act intituled An Act for the further Limitation of the Crown, and the the child. He kept no record or memoranbetter securing of the Rights and Liberties of dum of the transaction nor was any entry the Subject,' is and stands limited to the Prin- made nor account kept by him respecting After the lapse of nearly six cess Sophia, Electress and Duchess Dowager the same. of Hanover, and the heirs of her body, being years Wilson obtained a rule for the deProtestants." livery by Mr. Vann of his bill of costs.
Jervis, C. J., said :-" An attorney ought