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Law of Costs.-Notes on Equity Jurisdiction Improvement Act.
priorities and amounts of the several incumbrances. There were about seventy defendants, and on a reference to chambers, the chief clerk certified the priorities of six, in which the plaintiff was not included, as exceeding the fund in court.
Upon the question of costs, the Master of the Rolls said, "I hold the settled rule and practice of this court, and one which I have acted on in a great number of cases, to be, that in a suit for the administration of an estate, all the proper and necessary parties are paid their costs in the first instance, and But where the before the fund is administered.
suit is by a mortgagee, or for the benefit of mort-
The question came before Vice-Chancellor Wigram
"I refer to that case for the purpose of shewing that it is a mistake to suppose that the case of Kenebel v. Scrafton establishes such a proposition as that which Mr. Daniell in his book (3 Pract. 1st ed. 18-62) seems to have considered. Certainly that has not been the practice, as far as I am aware, either during my own practice at the bar or since I have had to administer justice from this seat.
With respect to my decision is Armstrong v. Storer, 14 Beav. 535, it was distinct from, and is perfectly reconcileable with Hepworth v. Heslop. In that case, the mortgagee might, if he had pleased, have enforced the mortgage; but, instead of that, he filed a
The conbill for the administration of the estate. sequence, I said, was, that as he had exercised his option, and adopted that course, he must be held to have done so, knowing the usual rules of the court, and that the costs of the administration of an estate must be paid in the first instance, and before he was entitled to be paid his mortgage debt.
"I am of opinion, in this case, that the plaintiff must be allowed his costs of the suit, and that, after that, the costs of all the mortgagees and the incumbrancers must be added to their securities; that is the manner in which this fund must be administered." Ford v. Earl of Chesterfield, 21 Beav. 426.
NOTES ON EQUITY JURISDICTION
CERTAIN property had been directed by the decree to
The Lords Justices were of opinion that the act of Parliament conferred on the court authority to exercise its discretion in a matter of this description, and directed the application to be mentioned again to the Vice-Chancellor.
Gibson v. Woollard, 5 De G. M'N. and G. 835.
AFFIDAVIT SWORN BEFORE NOTARY PUBLIC.
An affidavit was sworn before Mr. Allen, a notary public at Geneva, in the county of Ontario, in the state of New York, America, and the fact of Mr. Allen being a notary public and that credit ought to be given to his official acts was certified by the British consul at New York under the official seal. There was also an affidavit of the solicitor in the cause, stating that he had applied to General Campbell, the American consul in England, who informed him that notaries public in the United States were authorised by law to administer oaths in any law proceeding.
The Vice-Chancellor Kindersley considered that the case was not within the 15 & 16 Vict. c. 86, s. 22, and refused to direct the affidavit to be filed.
The Lords Justices said that the affidavit would have been sufficient before the passing of the new act, and that as there appeared to be nothing in the act to exclude it, it ought to be placed on the file. Huggitt v. Iniff, De G. M'N. and G. 910.
ALTERATION OF COUNTY COURT
It is ordered by her Majesty in Council from and after the 25th day of October, 1856, that the parishes of Henley-on-Thames, Rotherfield Grays, Rotherfield Peppard, Harpsden, Shiplake, Remenham, Fawley, Hambledon, Medmenham, Bix, Pishill, Swincombe, Pirton, Watlington, Nettlebed, Hurley, and Wargrave, now in the district of the county court of Berkshire, holden at Reading, shall cease to be within the district of the said court holden at Reading, and
Alteration of County Court Districts.—Annual Registration of Attorneys.
shall form the district of a county court of Oxford- | 1703, 1702, across the adjoining road to the southern shire, to be holden at Henley-on-Thames, and a county court for the purposes of the acts in such order recited shall accordingly, from and after such day, be held at Henley-on-Thames aforesaid, by the name of "The County Court of Oxfordshire, holden at Henley-on-Thames," for the said parishes of Henley-on-Thames, Rotherfield Grays, Rotherfield Peppard, Harpsden, Shiplake, Remenham, Fawley, Hambledon, Medmenham, Bix, Pishill, Swincombe, Pirton, Watlington, Nettlebed, Hurley, and Wargrave.
That the parishes of Wedmore, Mark, Chapel Allerton, Weare, Badgworth, Biddisham, East Brent, South Brent, Burnham, Berrow, Banwell, Christon, Loxton, Compton-Bishop, Winscombe, Rowberrow, Shipham, Axbridge, Cheddar, Nyland, Butcombe, Blagdon, Burrington, Churchill, Congresbury, and the Ville of Charterhouse-on-Mendip, now in the district of the county court of Somersetshire, holden at Weston-super-Mare, shall cease to be within the district of the said court holden at Westonsuper-Mare, and shall form the district of a county court of Somersetshire, to be holden at Axbridge, and a county court for the purposes of the acts in such order recited shall accordingly, from and after such day, be held at Axbridge aforesaid, by the name of "The County Court of Somersetshire, holden at Axbridge," for the said parishes of Wedmore, Mark, Chapel Allerton, Weare, Badgworth, Biddisham, East Brent, South Brent, Burnham, Berrow, Banwell, Christon, Loxton, Compton-Bishop, Winscombe, Rowberrow, Shipham, Axbridge, Cheddar, Nyland, Butcombe, Blagdon, Burrington, Churchill, Congresbury, and the Ville of Charterhouse-on-Mendip.
That from and after the 1st day of November, 1856, the county court now holden by the name of "The County Court of Glamorganshire, holden at Newbridge," shall be holden by the name of "The County Court of Glamorganshire, holden at Pontypridd."
That from and after the 25th day of October, 1856, the county court of Pembrokeshire, known by the name of "The County Court of Pembrokeshire, holden at Haverfordwest," shall cease to be holden at Fishguard, in the said county of Pembrokeshire.
That from and after the 31st day of October, 1856, so much of the district of the county court of Glamorganshire, holden at Newbridge, as is included within a line drawn from the point where the western boundary of the plot of ground numbered in the tithe map of the parish of Llanwnno, 2016, joins the southern boundary of the parish of Aberdare, thence eastward along the said boundary of such parish till it joins the western boundary of the parish of Merthyr Tydfil, thence southward along the said boundary to the southern boundary of the plot of ground numbered in the said map 1497, thence westward along the boundary of the said plot, and thence in a straight line to where the southern boundary of plot 1964 touches the river Cynon, thence along the centre of the said river, and then across the same to the southern boundary of the plot of ground numbered 1703; thence westward along the boundaries of plots |
boundary of plot 1701, thence along the southern boundaries of plots 1701, 1698, 1697, thence along the western and northern boundary of the plot 1697 to the western boundary of plot 1936, thence along the said boundary of plot 1936 to the south-western boundary of plot 1991, thence along the southwestern boundary of plot 1991 to the southern point of plot 1932, and thence to the south-western boundary of plot 1931, and thence along the western boundary of the same, and thence along the northern boundary of the said plot 1931, until it reaches the western boundary of plot 2016, and thence along the western boundary of the same to the point first described, shall cease to form part of the district of the county court of Glamorganshire, holden at Newbridge, and shall form part of the district of the county court of Glamorganshire holden at Aberdare.
That from and after the 31st day of October, 1856, so much of the parish of Ystradyfodwg as is now within the district of the county court of Glamorganshire, holden at Merthyr Tydfil, shall cease to be within the district of the said court, and shall form part of the district of the county court of Glamorganshire holden at Newbridge.
That from and after the 25th day of October, 1856, the county court of Cheshire shall cease to be holden at Knutsford, and the parishes and places now forming the district of the county court of Cheshire holden under the name of "The County Court of Cheshire holden at Knutsford," shall be consolidated with and form part of the district of the county court of Cheshire, holden at Altrincham, and known by the name of "The County Court of Cheshire holden at Altrincham."-From the London Gazette of 24th October.
ANNUAL REGISTRATION OF AT-
The forms of declaration, under the 6 & 7 Vic. cap. 73, may be had on application at the office of the Incorporated Law Society, Chancery-lane.
The members of the profession are requested to be particular in filling them up, either by themselves, their partners, or their London agents, to send them to the office on as early a day as possible; and to attend to the following
1. No declaration can be acted upon which does not contain all the particulars required by the act of Parliament.
2. Every declaration must be delivered at the office six days before a certificate can be granted. 3. No certificate will be delivered out till Thursday, November 20th.
4. In the first six days, commencing on November 20th, certificates will be delivered only to such London agents as shall in due time previously have sent in the declaration of themselves and their country clients, accompanied by a list thereof arranged in alphabetical order, and written on foolscap paper bookwise.
5. These six days to be appropriated among the London agents in the following order :-The letters
Mr. Warren's Charge to the Grand Jury at Hull.
REVIEW OF THE ACTS OF LAST SESSION.
THE learned recorder, Samuel Warren, Esq., Q. C.; made an able charge to the grand jury of Hull at the Michaelmas General Quarter Sessions on Tuesday the 21st October, in which, after some introductory observations on the state of the calendar, he reviewed the principal statutes of the last session.
"Gentlemen (he said) energetic attempts are being made at this moment to reduce the bulk and simplify the structure of our statute law. In this direction I devoutly hope that not more haste than good speed will be seen; otherwise we shall rue the result for many a long day. Something has been actually effected, during the last session, by statute 19th and 20th Vic. c. 64, passed solely to expunge from the statute-book 118 sleeping statutes, that is, within two of the entire number of public statutes passed during the last session.
"The law of joint-stock companies it has been endeavoured to consolidate and amend by an act which I hope will be found to stand wear and tear— statute 19th and 20th Vic. c. 47. The police of counties and boroughs has been the subject of an act of extensive and important operation, the 19th and 20th Vic. c. 69, the jurisdiction of the county courts has been extended, and in some respects remodelled, by the 19th and 20th Vic. c. 108.
"The powers of the church building commis
sioners have been transferred to the ecclesiastical commissioners; the law of advowsons amended, by enabling parishioners and others, forming a numerous class, to sell advowsons held in trust, and applying the proceeds in providing parsonage houses, augmenting small livings, and for other beneficial purposes; and better provisions have been made for the spiritual care of populous parishes, and forming separate parishes, by three acts-chapters 50, 55, 104. The laws of marriage in England and Scotland have been amended by the acts 19th & 20th Vic. cc. 96 & 119; the administration of intestates' estates has been rendered uniform by statute 19 & 20 Vict. c. 94.
"The good government and extension of the University of Cambridge sought by statute 19th and
20th Vic. c. 88; the coast-guard service and the manning of the navy stand on a more secure footing by statute 19th and 20th Vic. c. 83; the customs laws are amended by chapter 75; a vice-president of the committee of council on education is appointed by chapter 116; the electoral law of Scotland elaborately amended by chapter 58, and several other highly-important and valuable statutes have
been passed with reference to Scotland and Ireland the factories acts have been amended by chapter 38, and those relating to the duty on fire insurance by chapter 22; that relating to pawnbrokers, by chapter 27.
"By chapter 113, valuable facilities are afforded for taking evidence in relation to civil and commercial matters, pending before foreign tribunals, the act coming into operation as soon as the judges have framed rules and orders for carrying it into effect; while chapter 54, as I pointed out last session, effects a great improvement in the method of discharging your office as grand jurymen, at once imposing on you a responsible duty, and relieving us from needless interruption in the discharge of ours.
By statutes 19th and 20th Vic. c. 120, an admirable alteration has been effected in the law relating to settled estates-one equally bold and beneficial; giving the courts of equity ample power to deal with a difficulty which has hitherto required the circuitous, clumsy, and costly interference of the legislature in private family settlements. The statute comes into operation on the 1st of November -and I confidently anticipate that it will effect great good, by relaxing the stringency of settlements of property made with the best intentions and on the best advice, but which subsequent events. impossible to have been forseen, have rendered worse than useless, mischievous and oppressive to those intended to have been benefited by them. It appears to me impossible to overstate the benefits conferred by this act, if it be carried out by the courts of equity carefully and discreetly.
"Let me now glance at three short statutes effecting salutary and extensive changes in that department of the law more directly concerning such a community as Hull. First of all, I warmly congratulate the sailors, and all interested in the welfare of them and their families, on the passing of statute 19th and 20th Vict. c. 41, which affords great inducements to economy, and facilities for securing to sailors their hard earnings, by establishing a central savings bank for seamen in London, and branch banks at all our principal sea ports, at any of which sailors may instantly deposit their wages with complete safety, withdraw the whole or any portion at any port they please, receive interest on their deposits, and in the event of death, both principal and interest will be handed over at once to their families.
The wives, widows, and children of seamen are also liberally allowed to open accounts on the same terms; and sailors may deposit money for their children, which those children, if above 14 years old, may draw out as, and when, they require it. Is not this better than expending the money hardly earned in a voyage round the globe, in a first day or night's profligacy ashore? Is there a sessions here at which we have not the sad duty of dealing with such cases, and seeing the poor foolish sailor driven back, ashamed of himself, and a beggar, again to the wide ocean, leaving often his wife and family beggared and heart-broken? Let him now, however, only make the Board of Trade his bankers, instead of scattering his earnings among crimps and thieves, and in brothels, and beer and gin shops, and he may take ship again, lighthearted, and with a smile reflecting God's approval, while he dashes a tear from his eye at parting with a happy and affectionate family. The legislature has done its duty, and let our gallant seaman do his, and let you and me, gentlemen, be spared the pain of seeing him stand either here, or there
Opinions of the Press on Legal Examinations.
beside me here, or before me there-in the witness box, or at the bar-as prosecutor or as prisoner, publicly telling, when sobered and ashamed, the wretched story of his folly and guilt!"
"Gentlemen, by another act (chapter 26), a banker's cheque, bearing across its face, in written or stamped letters, the name of a banker; or the words "and company," either in full, or abbreviated, is now payable only to or through some banker; which the statute I think truly recites will conduce to the ease of commerce, the security of property, and the prevention of crime.
"Another act is chapter 97; and I recommend the careful study of it, not only to the professional lawyers of Hull, but to all engaged in trade and commerce, for it effects great changes in mercantile law. First of all, it makes it no longer necessary that a written guarantee should state the consideration on which it was given, and which may now be proved by word of mouth. Again, a guarantee given to, or for, a firm, ceases to be binding after a change in any one or more of its members, unless the contrary be the expressed or necessarily implied intentions of the parties; and every surety paying his principal's debt is entitled to the immediate and fullest advantages of all securities then held by the creditor; in whose place the surety is thenceforth to stand. Again-a written acceptance on the bill is now necessary in all bills of exchange, whether inland or foreign; and bills and notes drawn in any part of the United Kingdom, or the channel islands and islands adjacent, within the Queen's dominions, and payable there, are henceforth to be deemed inland bills, but without affecting the stamp duties. And as to the rights and remedies of those who have done repairs to ships, or furnished supplies for them, every port in the United Kingdom, the channel islands, or other adjacent islands within the Queen's dominions, is to be deemed a home port. Important improvements, also, are effected in the Statutes of Limitations, and others relating to the law of debtor and creditor, principal and agent, and co-contractors, and co-debtors, whether liable jointly only, or jointly and severally.
"Another valuable section protects persons bonâ fide, and for a valuable consideration, acquiring a title to goods, against writs of execution against the seller, provided the buyer had no notice that any writ was in the hands of the sheriff, unexecuted. Finally, singularly stringent provisions are made by this act to enforce the specific delivery of goods contracted to have been delivered, for a price in money. A jury will henceforth have to say (under the direction of a judge) what are the goods remaining undelivered, and what the plaintiff would have had to pay if they had been delivered according to contract; as well as what damages he would have been entitled to receive, if the goods should, or should not, be afterwards delivered, in conformity with the act; which provides that the judge may order execution to issue for the goods, on payment of the sum due, without giving the defendant the option of retaining them, as payment of the damages; and, if the goods cannot be found, then all the lands and chattels of the defendant within the jurisdiction of the sheriff are to be distrained till the delivery of the goods; or, if the plaintiff prefer it, the sheriff must realise the assessed value, or damages, out of the defendant's goods.
Gentlemen, even as far as I have gone, and assuring you that I have necessarily omitted from my view perhaps 80 or 90 out of 120 acts of the
last session-I think we shall be entitled to say, looking solely at the record of the statute-book, to which I strictly confine myself here- that parliament has not been idle during the last session; and, speaking solely as an administrator of the law, I deprecate excessive, far more anxiously than deficient, legislative action, in matters of such magnitude as those which I have just been laying before you. Inconsiderate legislation serves only to plunder the public and enrich lawyers, whether they will or not!"
The honourable and learned member then enlarged with much eloquence on the code of reformatory procedure, and the means adopted for the moral and social improvement of the people, and especially the education and correction of juvenile offenders.
OPINIONS OF THE PRESS ON LEGAL EXAMINATIONS.
THE BAR AND THE ATTORNEYS.
SUBJECTS of discussion seem to recur with the
Until changes are effected-until reforms are accomplished-it is the duty of the journalist to keep them before the eyes of the public, to repeat again and again the arguments in favour of the proposed improvement, with fresh illustrations if possible, and to answer such objections as seem to carry most weight with them. world prevents us from levelling abuses with one single blow, let us imitate the slower, but not less certain, process of the dropping water, whose pertinacious touch hollows even the "everlasting flint."
If the fashion of the
We are again on the eve of term; the lawyers are hurrying back from their sea-side reveries, their Paris gaieties, or sporting idleness. The Temple begins to assume its look of monotonous activity, and parchment-faced creatures, armed with dulllooking papers, begin to people its deserted walks. The judges are, no doubt, beginning to rub their eyes as they awaken out of their vacation slumbers. And youths about the age of discretion are busy searching for lodgings, where in the foggy November evenings their anxious parents at home picture them cutting up the leaves of their new Blackstone, or mastering the enigmas of Fearne's Contingent Remainders. In a few days, in short, the courts will be sitting, the barristers' chambers will be open, and the legal professors will have resumed their functions.
Nor should we forget that this also is the season at which the board of examiners for the admission of attorneys and solicitors holds it sittings; and, if we are rightly informed, the approaching examination presents features of peculiar interest, for we understand that some sort of certificates of merit are to be awarded, so that the able and diligent student may entitle himself, not only to a certificate of competency, but to a certificate of having passed with distinction. In other words, the Law Institution seems to have taken the first step towards the introduction of a class list into their examination. This, surely, is in the right direction, and we have no doubt that it will stimulate young students to renewed activity.
We wish we could discern any signs of a similar sort in the benchers of the inns of court. As yet there is no examination imperatively required of any candidate for the degree of a barrister. Lectures are established, prizes are offered, certificates of merit are granted; but it is quite possible, and indeed it is the usual practice, to call men to the bar
Opinions of the Press on Legal Examinations.-Selections from Correspondence.
without applying any test for the purpose of ascer-
In the first place, it is said to be of immense importance that there should be the sons of country gentlemen among the law students. They give such a gentleman-like tone to the profession. They come sometimes to the chambers of their tutor in the Temple; and although they prefer discussing the merits of the newest actress to the newest case in the Queen's Bench, still they throw an air of refinement over the musty monotony and vulgar narrowness of the tutor's chambers. Then they go down to the country. They meet, perhaps, at quarter sessions dinners the very men whom they saw in chambers, and who are now the leaders of the sessions bar. They have some recollections in common with them. become students-now Though these quondam justices of the peace-don't know any law, still they have imbibed something of the legal mode of looking at a question; and at all events they are disposed to regard with something like toleration the man who earns his bread by every-day work. Now all this is surely a tissue of garrulous imbecility. It is the argument, not of country gentlemen, but of Their secret the benchers of the inns of court. ground for facilitating admissions to the bar is shrewdly suspected to be, not any philosophic desire to encourage idle young squires to become legal pupils, but the somewhat less lofty desire to increase their funds by the fees demanded of those on their books. So far are the majority of country gentlemen from adopting the puerile fallacy propounded by the sordid sages, that we have reason to know they warmly repudiate any such notions.
The object that any sensible man has in sending his son up to London to a barrister's chambers is, that he may read law in a serious way. His own experience has taught the father the advantages of a knowledge of the principles of law, whether he continues to reside at his place, or aspires to a seat He knows well enough the danger in Parliament. which surrounds any young man just released from college amidst the thousand temptations of this modern Babylon. Therefore, so far from desiring to see every restraint removed-every incitement to intellectual exertion cut off-it is his wish rather to see some at least of those tests retained, by which he may know whether his son devotes any considerable portion of his time to reading and reflection. may, indeed, be said, that any father may insist upon his son presenting himself at the examination; but experience shows, that unless an examination is made imperative, to insist upon this is very difficult, if not practically impossible.
But there is another view of this subject. It is sometimes urged by those who advocate a compulsory examination that the public have a right
to know whether those persons who style them-
the attorney stands to his client is so close, so confi-
This, however, is a simple mis-statement. indeed, it were true that all business transacted by barristers was conducted in open court, there might But the fact is be something in the argument. that a very small proportion of a barrister's business is conducted thus openly. Two branches of the profession-the special pleaders and the conveyancers never go into court at all; and sometimes the junior counsel, who is responsible for the conduct of the prior steps of the case, is not heard in court. What proportion, let us ask, does the number of cases in court bear to the number of cases for opinion, of conveyances of large property, or the thousand matters which are done in a barrister's chambers? and yet, upon such matters as these-transacted in private men's rights are determined, resolutions to take or to refrain from legal proceedings are That such matters as these adopted, enormous possessions are transferred, and vast sums are paid. should be conducted with knowledge, promptitude, and economy, is quite as essential as that those gentlemen who argue cases in court should do so with learning. And yet it is notorious that the class of lawyers who transact the one sort of business is quite distinct from those who transact the other sort. If the vigilance of the Bench is required to ensure knowledge on the part of those who figure in court, what means are there to ensure knowledge on the part of those who transact business in chambers? For these at least the test of an examination is imperatively needed.-From the Daily News, October 23rd.
SELECTIONS FROM CORRESPONDENCE.
UNDUE CHARGES OF CEMETERY COMPANIES.
Nearly a quarter of a century ago an act of the Legislature was passed for establishing a cemetery