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Notes of the Week.-Legal Education.
NOTES OF THE WEEK.
THE Judges have arranged that at Abingdon and Oxford both Courts should sit for the despatch of business on the commission day.
NON-ATTENDANCE OF JURYMEN.
At the sittings at Nisi Prius at Westminster, before Lord Campbell, on the 21st instant, five jurymen were fined 40s. each for non-attendance.
NEW MEMBERS OF PARLIAMENT.
The Honourable Dudley Francis Stewart Ryder, commonly called Viscount Sandon, for Lichfield, in the room of Henry Manners, Baron Waterpark, who has accepted the office of Steward of her Majesty's manor of Northstead, in the county of York.
John Biggs, Esq., for Leicester, in the room of Richard Gardner, Esq., deceased.
ELECTION OF CORONERS FOR THE COUNTY OF
It has been ordered by her Majesty in council that in lieu of the town of King's Lynn, the parish or place of Gaywood, situate in the said Lynn district, in the county of Norfolk, shall be the place at which the courts for the election of coroners for the said district shall be holden.-From the London Gazette of June 27.
The Queen has been graciously pleased to appoint Richard Levinge Swift, Esq., Barrister-at-Law, now her Majesty's Consul at Buffalo, to be her Majesty's Consul at Riga. From the London Gazette, of June 13.
We are informed that J. Worlledge, Esq., Barrister-at-Law, will be the New Judge of the County Courts (Circuit No. 33), in the room of Francis King Eagle, Esq., deceased. Mr. Worlledge was called to the bar by the honourable society of the Middle Temple, the 23rd of November, 1838, and went to the Norfolk Circuit.
Mr. William Woodman, solicitor and town clerk of Morpeth, has been appointed treasurer of the County Courts of Northumberland and Durham
Charles Saunders, Esq., Recorder of Plymouth and Devonport, has been appointed judge of the county courts (circuit No. 57), in the room of Graham Willmore, Esq., deceased. Mr. Saunders was called to the Bar by the Hon. Society of Lincoln's-inn, on the 17th November, 1829, and went the Western Circuit.
Thomas Frederick Kelly, Esq., L.L.D., was presented to the Queen at the levee last Wednesday, by Sir George Grey, on his appointment as the Judge of the High Court of Admiralty in Ireland.
RESULT OF TRINITY TERM EXAMINATION. At the examination of articled clerks. which took place on the 3rd instant, ninety-three out of 114 completed their testimonials, and were entitled to be examined; but three did not attend. The examiners were engaged nearly three days in considering the answers to the questions, and ultimately passed eighty-three and postponed seven.
REDUCTION OF STAMP DUTY AND
To the Editor of" The Legal Observer."
SIR, I fully intended on the last occasion I troubled you to remain for the future, in regard to spondent, if he desired it, the merit of an apparent this subject, sub silentio, and to allow your correvictory; but, like the rest of the world on certain occasions, my intention has been overruled by circumstances, over which I have had no control, and I therefore feel compelled, at the risk of wearying ending discussion, to set right your correspondent yourself and readers completely out with this neverwhere he has entirely, but, no doubt, unintentionally, shall show, altered my words. misrepresented my views, and in one place, as I
I appeal to you, Sir, and to such of your readers who have perused our respective communications, whether your correspondent has not shifted his ground since he first began to write. I honestly confess I considered him, in the first instance, as the chivalrous supporter of ordinary clerks as against the profession and its articled members. But as soon as I humbly reply, giving my reasons against your correspondent's views, though acknowledging, in a general way, the worth of his supposed clients, he turns round upon me in his rejoinder with the insinuation of flattery, throws overboard altogether his former friends, the ordinary clerks, and takes under his protection that unfortunate, illused body of men, the articled clerks! Truly, I may venture to add, with all due respect to B., "parturiunt montes, nascitur ridiculus mus."
If there be any class in society less deserving of, fession, that class is, I think, the articled clerks. or less requiring the aid and sympathy of the proIn the first place, they are almost always the younger sons of gentlemen of fortune and station, and in very They are not the most industrious, nor the most many instances have something to fall back upon, easy to manage in an office. They come and they trol, and not generally gifted with any very large go when and where they like; are impatient of conshare of diligence, though, of course, there are exceptions. It has been my opinion for some time stiffer examination than a lightening of their pecuthat the only stimulus they required was rather a niary burthens.
I do not consider that I reasoned quite so illogically as B. would very cleverly make to appear. My statement was this:-If the ordinary clerks are so immoral as B. would make out, it "was the greatest inducement possible to withdraw the attornies from so contaminating an influence." I reasoned if B. or myself were about to engage a servant that we should both feel anxious that he was honest, moral, and respectable; that if he were not so, we should not look for the first cause of his worthlessness, whether it were owing to his training or manner of life, but dismiss him at once. I know I should. I shoulp not stop to inquire the why and the wherefore he were bad, nor whether it were possible to redeem him,. but should seek at once to be relieved of his presence. So, no doubt, in the case of law clerks, the very fact of their being a bad set of men (whether or no it were reasonable so to do) would be likely to prejudice the public and the profession against them. am advocating the interests of a body of men, I do not place their character and conduct in the worst
Legal Education.-Superior Courts: Lords Justices.
and most unfavourable light. And yet B. does this, and wonders how anybody should be prejudiced against them in consequence.
I assert again that, whether towards articled clerks or the profession, I see no injustice in advancing orIt dinary clerks to an equality with the former. must be borne in mind that ordinary clerks must become articled ones before they can be so elevated, and the test of merit can be the only one fairly applied. If the articled clerk who has hitherto depended solely on his own means be the best qualified by his legal attainments, iudustry, and talents to be the chief in an office, he will undoubtedly be so. On the other hand, if it be found that the man who possesses the greatest qualifications for the position is the ordinary clerk, he will be elevated accordingly. We all use those instruments which are most useful to us, and I have heard of attornies advancing their clerks in their offices in preference to their sons, because they saw the former more capable than the latter. In the law, as in every other position in England, it is talent and worth, not money nor gentility, that elevate a man to the highest places of honour. Let us refer to the past, or regard the present, and we shall find that the noblest instances of greatness and good fortune have arisen from the humblest and poorest of the land. Mrs. Barbauld, in two beautiful lines, has expressed this idea
"Man is the noblest growth our realms supply,
In my former communications, I have hinted that the profession might become too full, and I do not see any occasion to alter my opinion. My object, of course, can only be to maintain the respectability of the profession, and I do not, except by means of a "pecuniary barrier," perceive very clearly how this is to be done. We know that multitudes are prone to do evil, and how feeble the restraint of conscience is to the untutored mind. Lord Maidstone's remarks
about Lord Derby and the Deluge might, I consider, not unfairly be applied to the profession after the removal of the duty on articles.
I should be very sorry to make an unjust reflection upon your correspondent, whose gentlemanly courtesy towards me I must admit; but he has very curiously altered a word of mine, which places altogether a wrong construction on my argument, and it is the more curious as the words are between inverted I wrote that the reduction of the stamp commas. duty on articles to an insignificant amount would "neither afford security to the public, nor satisfy the profession of the worth and respectability of the aspirants." Your correspondent makes me say the "wealth and respectability of the aspirants," which is nonsense as regards wealth, but in a very secondary degree. His subsequent observations will not therefore apply.
I have been for a long while a reader of the LEGAL OBSERVER, and have been, from time to time, struck with the force and truthfulness of its arguments. I believe it has been the consistent supporter of the views I have now the honour to advocate, and which I am confident will, at no very distant period, be crowned with success. Liberal views on all subjects must, in these days of advancing civilisation, be held by every one who desires to keep equal pace in the race of life, but they must be kept in check, and trained by that conservatism which is the surest guide to real improvement.
In conclusion, Sir, with my thanks to you, I may add, as long as I fight under the shadow of your Ægis, I need not fear being vanquished in argument, nor be liable to a charge of illiberality. I have the honour to be,
With sincere respect,
RECENT DECISIONS IN THE SUPERIOR COURTS.
In re Saumarez. June 23, 1856,
TRUSTEES' ACT, 1850.
PETITION FOR VESTING
Held, that a petition for a vesting Order, under the 13 & 14 Vict. c. 60, ss. 3, 5, upon the lunacy of a trustee so found by commission, should be served on the committee of his estate.
THIS was a petition for an order, under the 13 & 14 Vict. c. 60, upon the lunacy of one of the trustees
"Sect. 3 enacts that, "when any lunatic or person of unsound mind shall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate."
"And sect. 5 provides, that "when any lunatic or person of unsound mind shall be solely entitled to any stock or to any chose in action upon any trust or by way of mortgage,
of a settlement, so found by commission, to vest the estate in the continuing trustee, and the new trustees appointed under the power contained in the settlement, and to transfer certain stock into the joint names of the trustees. Mr. Registrar Wilde having required that the petition should be served on the committee of the lunatic's estate, this application was made.
R. Pryor, in support.
The Lords Justices said that the committee must be served.
it shall be lawful for the Lord Chancellor, întrusted as aforesaid, to make an order vesting in any person or persons the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof; and when any person or persons shall be entitled jointly with any lunatic or person of unsound mind to any stock or chose in action upon any trust or by way of mortgage, it shall be lawful for the said Lord Chancellor to make an order vesting the right to transfer such stock, or to receive the dividends or income thereof, or to sue for and recover such chose in action, or any interest in respect thereof, either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any other person or persons the said Chancellor may appoint."
Superior Courts: V. C. Stuart; V. C. Kindersley; V. C. Wood.
It appeared that in July, 1854, an order was made in this cause for the payment to the plaintiff of a sum of £2,990 odd, and that he attended with Mr. Cheslyn Hall, a solicitor, at the Accountant-General's, when it was paid, and Mr. Hall wrote his bankers' names across the cheque. One fifth of this sum was subject to the trusts of a deed, of which Mr. Hall, Mr. John Turner, and Mr. William Henry Palmer were trustees for the benefit of a Mr. and Mrs. Johnson and their children, and the remainder was payable to Mr. Hall and his partner as mortgagees or otherwise. Mr. Nicholson, who was Mr. Johnson's solicitor, in October, 1855, requested from the Messrs. Hall information relating to the suit, when Mr. Hall delivered a memorandum to the effect that the one-fifth had been invested. In May last this was discovered to be untrue, and this petition was accordingly presented by his co-trustees, praying that Mr. Hall might be struck off the rolls.
Goldsmid in support; Bacon and Bird contrâ.
The Vice-Chancellor (after having refused to hear Leach for the cestuis que trustent) said, this is an application of a very painful kind, and it is impossible not to agree with what has been urged by the respondent's counsel that the order is highly penal, and one which the Court is not justified in making except on the clearest evidence, and in a case of imperative necessity arising from the obligation which the court owes to the public. It is urged that there is no instance of the court punishing in such a way one of its officers guilty of a mere breach of trust. But a breach of trust by an officer of the court is a very serious matter, and unless the officers of this court are in the highest degree trustworthy, the greatest danger to the public must occur. It is the duty of the court, when it finds one of its officers clearly guilty of conduct which shews him not to be trustworthy, to remove him from the list of its officers. Transactions in ordinary business can only be carried on in reliance on the integrity of individuals; for if in every transaction nothing were done without the strictest legal evidence, and if nothing were to be taken on the faith of representations being true and honest, the transaction of business would be so impeded as to make the affairs of mankind in the highest degree difficult to be conducted. What is alleged against the respondent is not a mere breach of trust; not that he merely received a sum of money of which he was a trustee, and misappropriated it; but that, in addition to receiving and not properly applying a sum of money he wilfully and deliberately put into the hands of the solicitor of the person interested in the fund, a representation that it was invested. That that was an untrue and dishonest representation was beyond all doubt, and the unfortunate nature of Mr. Hall's case is that he is obliged to rely on technicalities and circumstances, which do not shew the
representation is one to be excused or honest. It is said that it was made to a person who does not complain of it, and that the parties now complaining have no right to do so. If this were the case, the Court would be bound to act on that view, but the persons complaining are the co-trustees, and can hardly be said to be wholly unconcerned in the matter. It appears to be wholly immaterial to consider whether Mr. Hall was the solicitor in the cause for Mr. Johnson or not. The case, however painful, is therefore one about which there is not the slightest doubt or difficulty, and this gentleman has been guilty of such a misrepresentation, in addition to a breach of trust, that he cannot, consistently with what is due to the public and to the other men of high honour and character in the profession, be allowed to remain an officer of this Court.
Vice-Chancellor Kindersley. Colvin v. Lord. June 28, 1856. AFFIDAVIT. — - FILING, AFTER EVIDENCE CLOSED.PRACTICE.
Held, that in order to obtain leave to file an affidavit after the evidence is closed, it should be shewn to be material, and to further the ends of justice. Where an affidavit was sought to be filed, which was made in India, and it contained nothing more than was before the Court on a former occasion, and where a commission to examine witnesses in India had been refused :-Held, that leave to file it could not be granted.
THIS was an application for leave to file an affidavit made by a gentleman in India, notwithstanding the evidence in the cause had closed. It appeared that commissions had been granted for the examination of witnesses in France and Scotland on the question of the domicile of the testator, Dr. Cochrane, but that his Honor had refused to direct a commission to India where the testator had resided.
Glasse and Welford, in support; Anderson and E. F. Smith, contrà; C. Purton Cooper and W. Morris, for other parties.
The Vice-Chancellor said, that, although it was a matter-of-course to grant a similar application, if it was shown to be material, and to further the ends of justice, yet the affidavit, in the present case, contained nothing more than was before the court on the former occasion, and the application would be refused.
Williter v. Dobie. June 23, 1856.
EXPENSES CHARGE ON RESIDUE.
A testatrix by her will, made in execution of a power of appointment reserved by her marriage settlement, appointed the interest and dividends of certain stock to her husband for life, with remainder as therein mentioned. She then gave two legacies of £50 each, and directed and appointed the residue of her personal estate, from and after payment of her just debts and funeral and testamentary expenses, among her nieces:-Held, on special case, that her husband, who had paid her funeral expenses, was entitled to be paid the same out of the residue in priority to the nieces.
THE testatrix, by her will, made in execution of a power of appointment, reserved by her marriage settlement
Superior Courts: V. C. Wood; Court of Exchequer; Exchequer Chamber.
appointed the interest and dividends of certain stock to her husband for life, with remainder as therein mentioned. She then gave two legacies of £50 each to one of her executors and a niece, and directed and appointed the residue of her personal estate, from and after payment of her just debts and funeral and The testamentary expenses, among her nieces. husband had paid the funeral expenses, and the question was submitted for the opinion of the Court, on this special case, whether he was entitled to be repaid these expenses out of the residue in priority to the legacies.
Gowan, for the husband; Nixon, for the execu
Barstow v. Reynolds. June 11, 1856. COMMON LAW PROCEDURE ACT, 1854.-APPEAL FROM RULE FOR NEW TRIAL.
On a rule nisi to enter a non-suit, the Court, upon there being a question as to the facts, directed a new trial simpliciter. Held that this was a matter of discretion, from which there was no appeal under the 17 & 18 Vict. c. 125, s. 35. THIS was a rule nisi to rescind a rule giving the plaintiff leave to appeal from a rule absolute for a new trial. It appeared that on the trial leave was
reserved to the defendant to move to enter a non-suit, but on the rule being accordingly obtained, there being some question as to the facts, the Court, without entering into the question of law, directed a new trial.
By the 17 and 18 Vict. c. 125, s. 34, it is enacted that, "In all cases of rules to enter a verdict or non-suit upon a point reserved at the trial, if the rule to show cause be refused or granted and then discharged or made absolute, the party decided against may appeal." And by s. 35 that, "In all cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or, if granted, be then discharged or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or, provided the court in its discretion think fit that an appeal should be allowed; provided, that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed." Wilde and Cleasby showed cause.
The Court (without calling on Barstow in support) said the question originally was whether a non-suit should be entered, and the Court, upon the facts not sufficiently appearing, granted a new trial simpliciter. This was a matter of discretion from which there was no appeal under the 35th section. The rule would therefore be made absolute to set aside the rule giving leave to appeal.
Jones v. Jenner. June 12, 1856. COMMON LAW PROCEDURE ACT, 1854.-ATTACHMENT OF DEBTS.
Semble, that an attachment of debts under the 17 & 18 Vict. c. 125, s. 61, will not be granted where the power of issuing execution on the judgment is gone.
Therefore, where a judgment creditor sued in the county court on the judgment, and obtained an order for payment by instalments, some of which were paid, a rule for an attachment of a debt was refused.
THIS was a motion to attach a debt due to the defendant, under the 17 & 18 Vict. c. 125, s. 61, which enacts that "it shall be lawful for a judge, upon the exparte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney, stating that judgment has been recovered, and that it still is unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judgment debtor shall be attached to answer the judgment debt; and by the same or any subsequent order, it may be ordered that the garnishee shall appear before the judge or a master of the Court, as such judge shall appoint, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt." It appeared that the plaintiff had obtaiued a judgment in an action in this Court, and had then sued thereon in the county court, where the debt was ordered to be paid by instalments, some of which had been paid.
Lush in support.
The Court said that as the power to issue execution on the judgment in the superior Court was gone after the judgment obtained in the county court, the right to attach debts was also gone, and the rule would therefore be refused.
Bart v. Haslett. June 13, 24, 1856.
LEASE-COVENANT-REMOVAL OF IMPROVEMENTS -BREACH OF.
The lessee of certain premises covenanted not to remove any erections or improvements which should be made during the term of the lease. It appeared that he had taken out the old shop window, and replaced it by a plate glass one, which was wedged in aud not fixed by nails or screws. Held, nevertheless, affirming the judgment of the Court of Common Pleas, that the defendant was not entitled to remove the same, and to put back the old window.
Ir appeared that the defendant, under a lease of certain premises from the plaintiff, covenanted not to remove any erections or improvements which should be made during the term of the lease, and that he had taken out the old shop front and replaced it by a new plate glass one, which was, however, only wedged in and not affixed to the frames by screws or nails, and that before the expiration of his tenancy he removed it and replaced the old window. The plaintiff thereupon brought this action for breach of the covenant, and on reference to arbitration a case was stated for the opinion of the Court of Common Pleas, whether the window in question was such a fixture as the defendant was bound to leave under the covenant. The plaintiff obtained judgment, whereupon this error was brought.
Hawkins in support; R. E. Turner contra. Cur. ad, vult. The Court affirmed the judgment of the Court below.
The Legal Observer,
SATURDAY, JULY 12, 1856.
THE APPELLATE JURISDICTION BILL.
ONE of the most important bills which has passed the House of Lords, after being submitted to a select committee, is that of the Appellate Jurisdiction of the House of Lords. It was read a second time in the House of Commons on Monday last, after much opposition; the number in its favour being 191, and against it 142: majority, 49. It will be proper, on so important a measure, to notice some of the main points urged pro and con by the principal speakers on the subject.
by the Court of Exchequer and the Master of the Rolls. There was an appeal from the judgment of the latter, and it was heard before two law lords; they differed, and the result was that the judgment of the Master of the Rolls was confirmed, notwithstanding the conflicting decisions of the Court of Exchequer. If it happened that the Lord Chancellor was sitting alone, he might confirm by his own judgment a decision which he had given in the Court of Chancery in opposition to that of an inferior
4. Not only was the composition of the House as an appellate tribunal unsatisfactory, but its sittings were necessarily co-extensive only with the session of parliament; and nothing could be more inconvenient than such an arrangement where there were
According to the statement of the Attorney-appeals in cases of injunctions or of specific performGeneral the defects of this ultimate court of appeal are as follow :—
1. With the exception of the Lord Chancellor and the Lord Chief Justice for the time being, the judges consisted exclusively of ex-chancellors, with the occasional, but very rare, exception of some other members of the house who had belonged to the profession of the law. A body of judges so composed was open to several inconveniences. Its number must depend more or less upon accident. Sometimes the number of ex-chancellors had been very considerable, but sometimes it had been comparatively small. Again, considerations of age and infirmity would have a great bearing upon the number of law
lords able to attend.
2. There was nothing to render it in any degree obligatory upon ex-chancellors to attend on the hearing of appeals, even supposing there were no obstacles to prevent their so doing. The consequence had been that the number of law lords who sat in appeals had for some time past been below what could be called satisfactory either to the suitors or the country. It had very often happened that not more than two, or even one law lord had been present-and that, too, when the cases which came before the house had had the opinion of two of the courts of common law confirming perhaps the decision of the third; when they had been decided by the Lords Justices, confirming in like manner, perhaps, the judgment of the Master of the Rolls or one of the vice chancellors; or when they had come up from the Court of Session in Scotland, which consisted of a number of judges.
3. In cases where there were two judges in the House of Lords, nothing had been more frequent than that they should hold a divided opinion, and in that case no judgment could be given on the appeal; and the effect must necessarily be to cause a feeling of great dissatisfaction. In a case mentioned in the evidence there had been conflicting decisions given VOL. LII. No. 1,479.
ance. The shortest period at which an appeal could be brought to bear was, at least, two years.
5. There were several other matters of which complaints had been made, such as the want of all the externals of a court of justice, the absence of a distinctive dress, the judges not sitting together, the grievous expense to which suitors were put, and the like. All these were things which could be corrected by the House of Lords itself; but the others were matters which could not be redressed except by the interposition of the legislature.
In considering the remedy for this unsatisfactory state of the appellate jurisdiction, the Attorney-General observed
That the Government might undoubtedly elevate a sufficient number of eminent judicial persons to the dignity of the peerage; but there would be considerable difficulty in carrying a plan like that into effect. There were now few lawyers who could afford, with any due regard to themselves or their families, to take upon themselves the dignity of a peerage, Things were not as they used to be, and fortunes were not now to be easily earned at the bar. The number of the courts had of late been greatly increased. Formerly there were few Queen's counsel; now there were a great number; and many changes had been made in the administration of justice, which were beneficial, no doubt, to suitors, to the public, and to the profession, but which rendered it very difficult to amass such fortunes as would justify a man imposing on his family the onerous burden of a peerage. They were thus in this dilemma. The House of Lords would not admit life peers, and they could not obtain a sufficient number of lawyers to accept hereditary peerages; they would not part with their appellate jurisdiction, and it was admitted on all hands, their lordships included, that the exercise of that jurisdiction was in a most unsatisfactory condition. Besides, even if the House of Lords were disposed to admit peers created for life, they would