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Notices of New Books.
NOTICES OF NEW BOOKS.
BEFORE Concluding the last pages of the LEGAL OBSERVER (at least, in its present form), we have to pay our respects to several authors whose works have been forwarded for our perusal, and must offer our apologies for the brief manner in which their respective merits are noticed.
Lives of the Lord Chancellors and Keepers of the
"A new edition of The Lives of the Chancellors' being called for, I have employed this Long Vacation in carefully revising the whole work, and I now offer it to the public in as perfect a state as I can hope that it may ever attain. The minute criticisms which it has undergone in print, the private communications which I have received from friendly readers, and my own subsequent researches, have enabled me to correct various mistakes in the text, and to enrich the notes with valuable illustrations and references.
"As I despair of further Improvements, the work is now stereotyped. I should have been glad if there had been no change in the appearance of the page or the number of the volumes; but, with a view to make it accessible to all who may have a taste for such reading, I have followed the example of my distinguished friend Mr. Hallam, and adopted a form of publication which admits of a considerable reduction in price, and, avoiding double columns, may be agreeable to the eye of the reader.
Adverting to the changes which have taken place of late years in the high office, duties, and emoluments of the Lord Chancellor, the noble biographer observes that
ings except that of pecuniary corruption. Some new measure was necessary to satisfy the nation; and, instead of recurring to expedients which might have been rendered effective by their own authority, the Lords, following the unlucky advice of their leaders on both sides, preferred a scheme for which the sanction of the two houses as well as of the Crown was necessary, viz., having a certain number of salaried peers for life, with the title of "Deputy Speakers" to assist the Lord Chancellor. The Bill for this purpose being thrown out by the House of Commons, in what a state is the Lord Chancellor for the time being now left? "Single-seated justice," which was applauded in the time of Lord Hardwicke and Lord Eldon, will no longer be endured, nor the divisum imperium of the Lord Chancellor and a retired Common-law Judge, however distinguished. The probable experiment will now be a Judicial Committee, consisting of peers, and of judges and privy councillors summoned to advise the House. There the Chancellor will have no official ascendency, and a Vice-Chancellor or a Puisne Judge may be selected to declare the judgment of this tribunal according to the applauded practice in the Judicial Committee of the Privy Council.
"I care little about the reduced salary of the Lord Chancellor, althongh it is not now sufficient to enable him to keep a carriage, and to exercise becoming hospitality, much less to make any provision for his family. Against poverty a noble struggle may be made; but there seem to be causes in operation which, in spite of the most eminent learning and ability, must speedily reduce the office to insignificance and contempt. This is a sad prospect for the Biographer of the Chancellors.
'May I lie cold before that dreadful day,
Pressed with a load of monumental clay!'
And yet' (in the beautiful language of my predecessor, Lord Chief Justice Crewe) Time hath his revolutions: there must be a period and an end to all temporal things-finis rerum-an end of names and dignities, and whatever is terrene-for, where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more and most of all, Where is Plantagenet? They are entombed in the urns and sepulchres of mortality'!-And why not the Marble Chair?"
An Introduction to the Principles and Practice of
"Recent events have been still more unfortunate for the office of Lord Chancellor as connected with the appellate jurisdiction of the House of Lords. Without the slightest blame being imputable to the present excellent holder of the Great Seal, the judgments of the House of Lords in his time had not given entire satisfaction to the bar or to the public, and some change in the tribunal became necessary. The creation of a peerage for life was very inconsiderately resorted to. "Hac fonte derivata clades-." The Lords, in the exercise of their undoubted privileges, having judicially determined that a peer for life cannot as such sit in parliament, a committee was appointed to consider what was fit to be done for improving the appellate jurisdiction of the House. This was eagerly embraced as an opportunity to bring forward charges which, though most offensive to former holders of the Great Seal, and, generally speaking, quite unfounded, were listened to without the smallest check by the committee. In consequence a sudden belief arose in the public mind, that the appellate jurisdiction of the House of Lords, "The system of pleading in the superior courts which for centuries had commanded more respect of law having, in many important respects, been than the jurisdiction of any other tribunal in the newly moulded within the last few years, it has been kingdom, was usurped, and was liable to every thought that a new work upon the principles and charge which can be made against forensic proceed-practice of pleading might prove acceptable to stu
In addition to the general title above set forth, this
dents and also to the profession; a treatise upon the entire subject has accordingly been undertaken.
"The present volume, embracing the introductory division of the work, is offered to the student in a distinct form, and complete in itself. The remaining portion, which has been some time in course of preparation, will be issued as speedily as due regard to accuracy and the difficulty of the task will permit."
Mr. Williams has arranged the materials collected for the present volume in the following order :1. Origin of the Superior Courts, and their ancient Jurisdiction.
2. The Ancient modes of Procedure.
3. Progress from the Ancient to the Modern Jurisdiction, and Procedure of the Courts.
4. The Superior Courts of Law, their Modern Jurisdiction, and procedure.
5. Procedure by Action.
6. Commencement of the Action,
7. The Pleadings in general.
8. Modern Pleadings: first.
9. Modern Pleadings: second.
service and employment of the defendant, in his trade and business of a miller, and that the said E. F. conducted himself in the course of such his employment in a certain negligent and improper manner, and so caused a serious injury to befal the plaintiff. Now, in the first place, the defendant might have traversed the fact, that E. F., who caused the accident, was in his service, or he might have traversed the fact, that he had been negligent.
"Secondly, he might have demurred to the declaration, upon the ground that a master is not responsible to one servant for the negligence of a fellow servant, at least, not unless he had continued to retain such servant, knowing his negligent character, and had entrusted him with employment, which, in such case, it was not proper or safe to have done, which was not alleged by the plaintiff to have been the case. If the plaintiff had merely by inadvertence omitted to state in his declaration a fact which was material to his right of action, he would have been allowed, upon discovering his mistake, to have corrected himself, and have amended his statement
10. Modern Pleadings-Replication and subse- by the addition of the omitted fact. quent pleadings.
11. The Issues, and the Tribunals by which they are decided.
12. Proceedings upon Trial by Jury.
13. Proceedings to Judgment.
14. Proceedings in the nature of Appeal. 15. Execution.
16. Arrest on Mesne Process and Bail. 17. Costs.
18. Regulæ Generales, Hilary Term, 1853-the Rules of Practice.
19 Regulæ Generales, Trinity Term, 1853-the Rules of Pleading and the Rules of Michaelmas Vacation, 1854.
As an example of the author's composition, and for the use of the student, we extract the following passages from the chapter on Pleadings in general:
"In ancient times, when the appearance was actual, the pleadings were conducted orally in open court, either by the parties themselves or their pleaders, under the immediate superintendence of the judges.
"The plaintiff was first called upon for a statement of his cause of action. This was called the narratio or count, and since then the declaration, and where he had two or more distinct causes of action, he was required to state each in a distinct count. The defendant was then called upon for his plea, or his statement of what his defence was, and, passing over certain preliminary objections that he might have made to the suit, he might have denied the truth of the whole or a material part of the facts alleged in the count, in which case he was said to plead by way of traverse, or he might have disputed the validity of the plaintiff's claim, asserting that it disclosed no cause of action, in which case he was said to plead by way of demurrer; in both of these cases, it is clear that an issue would already have been arrived at in the former case upon a matter of fact, in the latter upon a point of law. The defendant, however, might, without disputing the validity or the truth of the declaration, have made a defence by disclosing additional facts, destroying the primá farie legal effect of those alleged by the plaintiff'; this being called a plea in confession and avoidance of the declaration.
"To illustrate these by example, suppose the plaintiff to declare that he and one E. F. were in the
"Thirdly, the defendant, without disputing the truth or validity of the count, might have pleaded, that after the occurrence of the matters therein mentioned, and before the commencement of the action, the plaintiff and the defendant agreed together, that the defendant should give, and the plaintiff should accept, the sum of £100, in full satisfaction and discharge of all claims of the plaintiff against him by reason thereof, and that afterwards and before the action the defendant paid to the plaintiff, and the plaintiff then accepted, the sum of £100 in full satisfaction and discharge as aforesaid.
"When the defendant thus introduced new facts, without disputing the truth of those alleged by the other side, it is evident that as yet there would have been no issue arrived at, everything alleged by the plaintiff having been omitted; the court, therefore, passing over the original allegations of the plaintiff, as not involving any of the matters in dispute, called upon him to reply to the new matter advanced by the defendant, in avoidance of the declaration; and by his replication the plaintiff might, in like manner, have traversed or demurred to the plea, or have replied by way of confession and avoidance. To illustrate this by a different example, suppose the defendant to have pleaded in confession and avoidance, that the plaintiff had by deed released and exonerated him from the claim; the plaintiff, without disputing the validity of such a defence, or the fact that he had given the deed, might have alleged that the deed was obtained from him by the fraud of the defendant.
"So long as the validity and the truth of the statements of either party were thus admitted by the other, and fresh facts were brought out, to avoid their effect, no issue was arrived at, and each statement thus admitted, was in its turn passed over and discarded, as containing no point in dispute; and the parties were compelled to go on alternately answering each other until the matter really in dispute being advanced by one of them, and denied by the other, brought them at last to issue."
A Treatise on the Law relating to Bankers and Banking. By JAMES GRANT, M.A., Esq., of the Middle Temple, Barrister-at-Law, Author of "The Law of Corporations in General." London: Butterworths.
1856. pp. 670.
THIS is a well-designed and well-executed work.
Notices of New Books.
There can be no doubt that it was desirable to post up the law of banking, collected from the recent acts of the Legislature and the decisions of the superior courts, and arrange the whole in clear and methodical order. In this view Mr. Grant states the plan that has been followed of placing before the reader
Banker has upon Securities, Goods, Shares, &c., of
"10. The Law as to Banking Partnerships constituted at Common Law, and also as to the Rights, Remedies, and Liabilities of Bankers in dealing with Firms as Customers.
"11. The Rules, Principles, and General Considerations on which the conduct of Bankers is to be guided on the Bankruptcy of Customers: the Rights of Bankers, and the several modes of realising them, &c., together with the Law relating to the Bank
"Not merely statements of the dry points of law, which were decided in the cases collected; but, as a rule, a summary of the principal facts, and occasionally of the arguments urged before the court, together with the main grounds on which the judg-ruptcy of Bankers themselves. ment proceeded, are also presented. By this means, and by the endeavour to lay down no position or principle unaccompanied by examples to illustrate its application and effect, it has been hoped to provide facilities, in a compendious form, for the solution of every question that can arise, provided such question, in its nature, falls within any of the classes of questions which have already passed into res judicatæ, By this means, at any rate, it may be hoped that a person who consults this work, in order to know what are his rights or liabilities, and what the proper course of conduct in any given set of circumstances, will be enabled readily to observe and to decide whether the principles and rules stated under the head to which his difficulty belongs, have been applied to or deduced from, circumstances the same as, or analogous to, those of his particular case, and whether the reasons assigned by the court meet the difficulty and govern the case."
"12. The Law governing the relations of Societies, Commissioners, and other bodies of a public character, and of persons bearing a representative character, to Bankers, and the relations of the latter to the Bank of England; together with Matters relating to the Public Stocks, to Shares, Bank Stock, Exchequer Bills, &c.
The author adds that
"With respect to those comparatively new modes of carrying on the business of banking, the banking copartnerships, and joint stock banking companies, much attention has been paid, to place before the reader the law relating to them in as clear a light as possible; the subject of directors' powers and liabilities, civil and criminal, the rights and liabilities, and remedies of shareholders, as involved on the bankruptcy, or winding up of these bodies, and also generally, it is hoped, will be found explained in as satisfactory a manner as the present state of the law admits of."
The following are the contents of the volume :"1. The general outline of the Relations between Banker and Customer, and the Principles and Rules of Law governing those relations.
"2. The Rules and Principles governing Cheques or Drafts on Bankers.
"3. The Duties and Rights of Bankers in respect of Bills of Exchange made payable at their Bankinghouses.
"4. The Duties of Bankers in respect of the Orders of their Customers.
"5. The Obligations of Bankers giving Accountable Receipts.
"6. The Rights and Liabilities, criminal and otherwise, of Bankers on the deposit with them of a Customer's Securities for safe custody or other special purpose; as also on the taking of Securities against Loans or advances made to Customers.
"7. The Rights and Remedies on Guarantees, Bonds, &c., given to Bankers by third persons to secure Advances to Customers, and when given to secure the Fidelity, &c., of Clerks, Officers, &c.
"8. The Principles upon which, on a Customer's Running-account, Payments made by him into the Bank are to be appropriated.
"9. The Rules regulating the Lien which a
13. Matters affecting the Rights and Risks of Bankers in affording Accommodation by way of Discounts.
14. The Law as peculiarly relating to Country Banks, and their Bank Notes, and governing transactions with Town Correspondents, &c., in the remittance of Money, Bills, Notes, &c., and in case of Bankruptcy, &c.
"15. The Decisions and Enactments relating to Banking Copartnerships formed under 7 Geo. 4, c. 46, and to Shares and Shareholders, Directors and other Officers therein, and the Rights and Remedies of Customers, together with the subjects of the Bankruptcy and Winding-up the affairs of these bodies.
"16. The Decisions and a summary of the Enactments relating to Joint Stock Banking Companies constituted under 7 & 8 Vict. c. 113, &c., comprising the Rights and Remedies of Customers and Shareholders respectively, the Duties and Responsibilities, criminal and otherwise, of Directors, Managers, and other officers; and the subjects of the Bankruptcy and Winding up the affairs of these bodies.
"17. A Summary of the Law of Savings' Banks, chiefly as affects ordinary Bankers becoming connected with these institutions."
An Exposition of the Joint Stock Companies Act, 1856, designed as a Practical Guide for the Promoters, Directors, Shareholders, Solicitors, Secretaries, Officers, and Creditors of Mercantile, Mining, and all other Companies. By THOMAS TAPPING, Esq., Barrister-at-Law. London: Mining Journal Office. pp. 88.
WE collect from the title-page and preface of this work, and its having been issued from the office of the Mining Journal, that the author's object is principally directed to such joint-stock companies as are engaged in mining transactions, and it is evident that in this respect the work will be peculiarly valuable in the formation of such companies, and the regulations for the management or winding up thereof. We observe in the preface that Mr. Tapping brings forward and ably states the several objcetions which have been raised to the alteration in the law of jointstock companies; but he candidly says, "it is not intended to cavil at a measure for which the nation generally, and mercantile men in particular, may well be thankful." After stating the various objections which have been urged against the measure, Mr. Tapping observes that-
"As the legislature has, however, thought proper
Conclusion of the "Legal Observer."
o except from the operation of the 4th section as well all companies authorised to carry on business by some private Act of Parliament, or by royal charter, or letters patent, as those engaged in working mines within and subject to the jurisdiction of the stannaries; it is asked, why not except all cost-book companies, whether working mines without or within the stannaries jurisdiction? To which no satisfactory answer can be given: although to compel a mining company to become a joint-stock company is in nearly all cases to prevent its formation."
CONCLUSION OF THE "LEGAL OBSERVER."
OUR readers, we trust, will allow us to address a few words on concluding our labours in the compilation and management of the LEGAL OBSERVER during twenty-six years and upwards. We would, in the first place, observe, that the work was not instituted as a personal speculation, or its plan settled by any single individual. In 1830, large and comprehensive schemes of law reform were announced, and it appeared to many eminent attornies at that time that a periodical publication should be commenced under the superintendence of members of their branch of the profession, for the purpose of recording and discussing the projects for the alteration of the law, and enabling the practitioners to communicate their opinions on such proposed changes as might affect their position and the interests of their clients.
At a somewhat numerous meeting of leading attorneys, a general plan was sketched out, and the present Editor was requested to use his exertions in carrying it into effect. Aided by several able contributors, and under valuable advice, the work was commenced, and successfully established,
It comprised the statement and discussion of all the projects in Parliament, or elsewhere, so far as they concerned the profession; the means adopted for the improvement of its members; the proceedings of the several societies of attorneys; the amendment of legal practice; the status of that branch of the profession; the honours and emoluments, and the exclusive privilege of audience, claimed by the bar; and the exclusion of attorneys from the inns of court, and from many posts of distinction.
The prosperity of the work soon induced numerous competitors to enter the field. During the first few years several rivals appeared, and in no long time vanished. But at length the defects in the system of law reporting, the delay in publishing the decisions of the courts by the so-called "regular reporters," and the great expense of their ponderous volumes, in addition to the constant excitement produced by the never-ending changes in all departments of the law and practice, made way for new publications to
meet the supposed wants and interests of the profession at large.
The Justice of the Peace first came forward, seeking to inform and instruct the magistrates all over the country, and the numerous and intelligent body of magistrates clerks. Next came The Jurist, which, from first to last, has mainly devoted its columns to the reports of the decisions of the superior courts, and to the statutes, either at large or abridged, as appeared expedient. Finally appeared The Law Times, which had the ambition to include all the objects of The Justice of the Peace and The Jurist, with the addition of the varied materials usually found in the pages of the LEGAL OBSERVER.
It may be admitted that we have not devoted sufficient space to a full report of the numerous decisions in all the courts. Our excuse must be, that the improvements effected in the regular reports by their early publication, and the promptitude and accuracy of the Law Journal in its reports, appeared to render unnecessary another extensive series, and consequently our reports and notes of cases were confined to such as appeared more particularly useful to solicitors.
It seems, also, that, in this age of cheap literature and double sheets of all kinds of newspapers, the moderate size of the LEGAL OBSERVER did not suit the general taste. The advice we originally received from some of our respected supporters, to confine our labours within their original bounds, and render the work valuable for its brevity and condensation of useful matter, appears to have been better suited for the last than the present age. Quantity is now required as well as quality, and we cheerfully consent to merge our work in a publication better adapted to the requirements of the times.
Other circumstances may also have rendered it expedient to retire from the conflict. Amongst these it may be, the position of the Editor restrained that freedom of disquisition which appears to be demanded on the part of all great classes of the community. Most of our readers will comprehend the difficulties to which we refer, and appreciate the motives which have induced us willingly to resign an office that, for the good of the profession, may be more efficiently filled by others.
We beg, in taking leave, to return our hearty thanks, as well to our friendly correspondents, as to our regular or occasional contributors and reporters, who have lent their powerful aid during the whole progress of the work; and we owe our acknowledgments also for the support and encouragement which we have received from our subscribers. We have been accustomed to receive many valuable suggestions, of which we freqnently availed ourselves; and it is no small gratification to remember that we have rarely encountered any objection, from our professional brethren, to the opinions we have expressed on pro
Testimonial to the Secretary of the Incorporated Law Society.
fessional subjects, or the measures we have advocated, in the anxious endeavour to benefit our brethren, to whom we are so deeply indebted.
Our readers will observe by the prospectus
present efficient state of the society. Upwards of six hundred pounds have been subscribed
BY MEMBERS OF THE SOCIETY
For the purpose of a Testimonial,
of THE SOLICITORS' JOURNAL AND REPORTER, Part of which has been applied in the purchase of this
which we inserted last week, that the pages of that work will be especially devoted to the interests of solicitors, and that it will become the acknowledged organ of that branch of the profession.
TESTIMONIAL TO THE SECRETARY OF THE INCORPORATED LAW SOCIETY.
Ar a Meeting of the Council of the Incorporated Law Society, held on Thursday, 12th June, 1856,
THE PRESIDENT reported to the Council that a fund had been raised, by subscription of the members of the society, with the object of presenting to Mr. MAUGHAM a memorial of their respect and esteem, and an acknowledgment of the valuable services which,-with ability and with untiring zeal, and with unblemished honour, he has rendered to the Society, as the Secretary, since its formation, in 1825; that upwards of £600 had been contributed; and that it was proposed to devote 100 guineas to the purchase of a piece of plate, with an appropriate inscription, and to apply the remainder of the fund for the permanent benefit of Mr. MAUGHAM; and
IT WAS thereupon unanimously RESOLVED: That the Council gladly avail themselves of this opportunity to record the high sense which they entertain of the ability, activity, and zeal with which the Secretary has discharged the varied and laborious duties of his office, during the whole period of the existence of the Society, and their sincere and cordial respect for his character.
IT WAS also RESOLVED unanimously:
That a copy of these resolutions be transcribed and framed, and be presented to Mr. MAUGHAM.
Piece of Plate.
KEITH BARNES, President. EDWARD WHITE, Vice-President.
The Secretary returned his grateful acknowledgments to the Council and Members of the Society for this most gratifying compliment, the highest that could be bestowed upon him, by Gentlemen so eminently competent as vices he might have rendered. It was, indeed, they were to judge of the value of any serfrom the Members of the Council (themselves among the ablest of the profession) that he had received a long course of instruction in the duties of his office, and to them he was principally indebted for any measure of success he had attained. He always felt it a high honour to be engaged in carrying the resolutions of the Council into effect and aiding their exertions in behalf of the Society and the Profession at large. He could claim only the humble merit of a constant and anxious desire to discharge his various official duties in the business of the society, the examination and registration; to be always at his post; and ready to render any service or assistance to the Members. He hoped to be able by future exertions to secure the continuance of the favourable opinion so kindly expressed towards him.
A DEPUTATION from the council of the Incorporated Law Society waited upon Sir Benjamin Hall, Chief Commissioner of Public Works, at his offices, Whitehall-place on the 18th instant, relative to the removal of the courts of law from Westminster, and the erection of a building in the neighbourhood of the inns of court, in which all the courts, both of law and equity, and all the law offices, might be
The following is the inscription on the congregated under one roof. silver salver :
ROBERT MAUGHAM, ESQ., By the COUNCIL and MEMBERS of the Incorporated Law Society in testimony of the high sense they
entertain of his invaluable services as
Secretary to the Society
For upwards of Thirty Years,
And in the belief that his ability, integrity, and unweari ed exertions have tended to promote the
Mr. White, president of the society, in explaining the object of the deputation, called the attention of the Chief Commissioner to the inconvenience arising not only to gentlemen of the bar and solicitors, but also to the public, from the circumstance that the courts and legal offices were scattered about the metropolis. The Lord Chancellor, the Lords Justices, and the Vice-Chancellors at present sat at Lincoln'sInn, in temporary courts, totally void of accommodation for either solicitors or suitors.
The common law judges sit in the courts attached to Westminster-hall, which are all small and inconvenient in accommodation for the judges and the