« EelmineJätka »
Diporce and Matrimonial Causes' Bill
155 been made in any cause or matter matrimonial, or bigamy, or of an unnatural crime, or an atthe same may he enforced by the Court of tempt to commit the same; and every such Chancery in the same way as if originally made petition shall state the facts on which the by the said Court of Chancery; (s. 6).
claim is founded : Provided that no person All suits in matters 'matrimonial pending in shall, for the purpose of sueh petition, be any Ecclesiastical Court shall be transferred to deemed guilty of bigamy or of an unnatural the Court of Chancery, subject to such orders crime, or an attempt to commit the same, unas the Lord Chancellor shall make in that be- less he shall have been convicted thereof in half ; (s. 7).
due course of law ; (s. 16). Upon any bill or claim filed by a wife, alleg. The party prosecuting such petition shall ing that she has been deserted by her husband, file an affidavit stating that the allegations are the Court of Chancery, od being satisfied of the true to the best of the deponent's belief, and truth of such allegation, and that such deser- that there is no collusion or connivance betion has continued without reasonable excuse tween the deponent and the other party to the for three years or upwards, may, if it shall see marriage sought to be dissolved; (s. 17). fit, make an order for payment to her of ali- Every such petition shall be served on the mony in the same way as on a decree for a di- party to be affected thereby, either within or vorce a mensá et thoro, and such order shall re- without her Majesty's dominions, in such main in force until the Court shall make order manner as the Court shall direct; provided, to the contrary; (s. 8), and it may direct the that the Court may dispense with such service same to be paid either to the wife or to any trus in case it shall seein expedient so to do; (s. 18). -tee on her behalf to be approved by the Court, The Court may issue writs of subpæna, or and may impose terms as to the giving in- subpæna duces tecum, under the seal of the demnity to the husband, and any other terms Court, commanding the attendance of witor restrictions which may seem expedient; nesses ; and such writs may be served in any (s. 9).
part of Great Britain or Ireland; and every In any suit for obtaining a divorce a mensa person served therewith shall be bound to atet thoro or of nullity of marriage, or for pay- tend and give evidence, in the same manner as ment of alimony hy reason of desertion, the if issued from a Superior Court of Common Court of Chancery may, before final decree, Law; (3. 19). make interim orders, and provision in the final The evidence shall be given vivá voce, unless decree with respect to the custody, maintenance, the Court shall think it expedient to permit the and education of the children ; (s. 10). same to be taken by Commission; and in such
Any person conceiving himself to be ag- cases the Court may issue a commission for grieved by any decree or order of the Court of the purpose (s. 20), under the seal of the said Chancery, shall have the same right of rehear- Court, and the proceedings shall be conducted ing and appeal as against any other decree or in the same way as proceedings in the Superior order ; (s. 11).
Courts of Common Law under the 1 Wm. 4, The Lord Chancellor, the Lord Chief Justice c. 22, except as may be otherwise directed by of the Queen's Bench, the Master of the Rolls, the said Court; (s. 21). and such three other persons, one of whom The Court may order the attendance of the shall be a Judge of the Superior Courts of petitioner, and examine him or her, or permit Common Law, as her Majesty may appoint hy him or her to be examined or cross-examined, letters patent under the Great Seal, or any on the hearing ; but no such petitioner shall be three or more of them, of whom the Lord bound to answer any question tending to show Chancellor and the Lord Chief Justice of the that he or she has been guilty of adultery; Queen's Bench, for one of the said Judges, (s. 22). shall always be two, shall constitute a Court, The Court may allow any of the matters to be called “The Court of Divorce," which stated in the said petition to be verified by afshall be a Court of Record, and hold its sittings fidavit or declaration ; (s. 23). as it shall find expedient ; i(a. 12). +
The Court, before proceeding to hear the The Court to have a seal; (s. 13). evidence, shall appoint a shorthand writer to The registrars and other officers of the Court take down the same, and one or more extended of Chancery shall attend the sittings and assist copy or copies thereof shall be filed for the in the proceedings as the Lord Chancellor shall use of the Court; and such shorthand writer direct; (s. 14) un gi
shall, before he acts, be sworn faithfully to take The said Court of Divorce shall bave power down and extend the evidence, and shall be to make rules and orders, and regulate the paid, out of the Suitors' Fee Fund, such remu. fees payable, which shall be carried to the credit neration as the Court may direct; (ss. 24, 25). of the Suitors' Fee Fund of the Court of. Chan-All witnesses 'examined shall, before giving cery, and be collected by stamps, according to their evidence, be sworn, except in the case of the 15 & 16 Vict. c. 87 ; +(8. 15). ""
persons exempted upon trials at Nisi Prius, all Any husband may present a petition to the which persons may give their evidence upon Court of Divorce, praying that his marriage affirmation, as on such trials (s. 26); and all may be dissolved, on the ground that his wife persons wilsully deposing or affirming, falsely, has been guilty of adultery; and any wife may shall be deemed guilty of perjury, and liable to present a like petition, on the ground that her all the pains and penalties attached thereto; husband has been guilty of incestuous adultery |(s. 27).
Divorce and Matrimonial Causes' Bill. The Court may adjourn the hearing of any had been made (s. 36); and the said House such petition, and 'require further evidence may, on the hearing of any appeal against any thereon, if it shall see fit'; (s. 27).
order dismissing such petition, declare that the Upon the hearing of any such petition, the same ought not to have been dismissed, but Court shall be satisfied as to the fact of the that the marriage ought to have been dissolv. adultery, bigamy, unnatural crime, or attempted, and may declare the same accordingly to be therein alleged, and that the petitioner has not dissolved, on such terms in all respects as the been conniving at or condoned the same, and said Court might have done ; (s. 37). has not during the marriage committed adul- When the time limited for appealing against tery; (s. 29).
any decree dissolving a marriage shall have exIn case the Court shall be satisfied on the pired, and no appeal shall have been presented, evidence that the alleged adultery, &c., has or if in the result of any appeal such marriage been committed, and that the complaining shall be declared to be dissolved, it shall be party has not committed adultery during the lawful for the parties thereto to marry again; marriage, or was not conniving at the adultery, (s. 38). &c., and that such adultery, &c., has not been
The said Court on the hearing of any pepardoned by the petitioner, then the Court tition, and the House of Lords on the hearing shall pronounce a decree declaring such mar- of any appeal, may make such order as to costs riage to be dissolved : Provided that the Court as may seem just; provided that there shall be shall not be bound to pronounce such decree no appeal on the subject of costs only; (s. 39). if the petitioner shall, in the opinion of the If a any copy of, or extract from, any charter, Court, have been guilty of unreasonable delay deed, decree, report, record, licence, or other in presenting or prosecuting such petition; document deposited in any of the offices under s. 30).
the control of any Court of Law or Equity, or The Court may, if it think fit, in any decree Ecclesiastical Court, or preserved in any public on the petition of a husband, make it a con- registry, shall be required for the purposes of dition that the petitioner shall, to the satisfac- this Act, the officer having the custody of such tion of the Court secure to the wife such gross charter, &c., shall, upon an order signed by the or annual sum of money for a term not ex- Lord Chancellor, furnish such copy or extract, ceeding her life, as, having regard to her for- and which shall not be liable to stamp duty; tune (if any), to the ability of the husband, and (s. 40). to the conduct of the parties, it shall deem “All persons who have been admitted to reasonable, and may refer it to one of the con- practise as advocates or proctors respectively veyancing counsel, to settle and approve of a in any Ecclesiastical Court in England or deed to be executed by the petitioner and other Wales, as well as all barristers, attorneys, and parties; and the Court may in such case, if it solicitors now entitled to practise in the Su. shall see fit, suspend the pronouncing of its perior Courts at Westminster, shall be entitled decree until such deed shall have been duly to practise as counsel, solicitors, or attorneys executed ; (s. 31).
respectively in the said Court of Divorce, and Upon a decree dissolving marriage, the also in all matters matrimonial in the said Court of Chancery may, upon summary appli- Court of Chancery, subject to such regulations cation by petition, make such orders as to the as may be made by the said. Courts respeccustody, maintenance, and education of infanttively;" (s. 41). children, as if such children were wards of Every Judge or officer who shall be deprived Court; (s. 32).
of any of the emoluments of such office, shall In case the Court of Divorce shall not be be entitled to have an adequate compensation, satisfied that the alleged adultery, &c., has to be assessed by the Lords Commissioners of been committed, or shall be satisfied that the her Majesty's Treasury, and paid out of the petitioner has during the marriage been guilty Suitors' Fee Fund of the Court of Chancery, of adultery, or was conniving at the adultery, regard being had to the manner of his appoint&c., or has pardoned the party guilty thereof, ment, and to his term or interest therein, and all then the said Court shall dismiss the said pe- other circumstances of the case ; and every pertition ; (s. 33).
son entitled to sucli compensation shall deliver Either party dissatisfied with the decision of to the Commissioners a statement in writing, the Court may,
within three calendar months, setting forth the amount received by him or his appeal to the House of Lords, or if Parliament predecessors in every year for five years, on acis not sitting at the end of such three months, count of the emoluments in respect whereof be then within 14 days next after its meeting ; shall claim such compensation, distinguishing (s. 34).
the office. in respect whereof the same shall The evidence on which the said Court has have been received, and containing a declaraproceeded shall be used on the hearing of such tion that the same is a true statement accordappeal, and the decision of the said Court may ing to the best of his knowledge, information, thereupon be confirmed or reversed or varied, and belief, and also setting forth the sum as to the said House may seem just (s. 35), claimed by him' as such compensation; and or the said House may remit the case to the the Commissioners shall take the same into Court of Divorce to obtain further evidence on consideration, and determine thereon, and the matters in dispute, and the said Court shall make such order as to them shall seem just thereupon deal with the case as if no decree and such order, signed by the Commissioners
Mercantile Law-First Report of the Commissioners."
157 shall be binding on all parties ; provided that nevertheless well be, that the circumstances, such person shall attend at any meeting of the of the trading interests in the United Kingdom, Commissioners for the investigation of such may give it a very different operation here.« claim, and upon his oath answer all such ques. Your Majesty's Comınissioners have carefully tions as shall be asked by them touching the perused and considered these various opinions; matters set forth in such statement, and pro- two of their body, Lord Curriehill and Mr. duce all books, papers, and writings in his Slater, have put into writing their thoughts on possession, custody, or power, relating thereto; the subject, for the assistance of their fellow provided that if any person holding any office Commissioners who have thought it right to shall be appointed after the passing of this Act make these communications public hy printing to any public ofice under this Act, or under them in the Appendix. the Crown, or under the Court of Chancery, In considering this subject, the question the payment of the compensation, so long as which appeared to your Majesty's Commisbe shall continue to receive the salary of such sioners of paramount importance was, whether office, shail be suspended, if the amount of the proposed alteration of the law would operate such salary be greater than the amount of such beneficially on the general trading interests of compensation, or, if not, it shall be diminished the country? and they have arrived at the conby the amonnt of such salary; (s. 42).
clusion that it would not. They have not been able to discover any evidence of the want of a
sufficient amount of capital for the requireMERCANTILE LAW.
ments of trade; and the annually increasing
wealth of the country, and the difficulty of FIRST REPORT OF THE COMMISSIONERS,
finding profitable investments for it, seem to
them sufficient guarantees that an adequate To the Queen's most excellent Majesty.
amount will always be devoted to any mercanYour Majesty having been pleased to issue tile enterprise that holds out a reasonable prosa Commission directing your Majesty's Com-pect of gain, without any forced action upon missioners to inquire and ascertain how far the capital to determine it in that direction ;-while... Mercantile Laws in the different parts of the ariy such forced action would have a great United Kingdom of Great Britain and Ireland tendency to induce men to embark in specumay be advantageously assimilated, and also lative adventures to an extent that would be whether any and what 'alterations and amend- dangerous to the interests of the general comments should be made in the Law of Partner- merce of the country. Moreover, your Maships, as regards the question of the limited orjesty's Commissioners find no reason to supunlimited responsibility of partners, your Ma- pose that the reputation of British merchants, jesty's Cominissioners have proceeded to con- either at hoine or abroad, would be raised by sider the matters so confided to them; and the establishment of firms trading with limited having completed their inquiries and delibera- liability, but the contrary; for many of the tions as to the expediency of making alterations opinions in favour of such a system are coupled in the Law of Partnership, so far as relates to with a recommendation of more stringent rethe limited or unlimited liability of partners, gulations than those now existing for the predeem it right at once to lay before your vention of fraud. But if such partnerships Majesty the conclusion at which they have ar- would increase the danger of fraud, they can rired.
hardly be otherwise than prejudicial to our With a view to obtaining well-considered mercantile reputation. opinions on the subject, your Majesty's Com- Your Majesty's Commissioners have also missioners framed a series of questions which considered the subject with regard to the bethey thought calculated to elicit information, nefit which it may be calculated to confer on and caused them to be widely circulated both individuals, by enabling them to obtain capital at home and abroad; and those questions and and establish themselves in business by the the answers received are printed in an Appen- aid of partners incurring a limited liability dix to this Report.
only. It cannot be doubted that instances, Your Majesty's Commissioners have been occur where men of probity and talent would much embarrassed by the great contrariety of derive benefit from such a system, but your opinion entertained by those who have favoured Majesty's Commissioners are of opinion that them with answers to their questions. Gen- such benefit has been greatly overrated., tlemen of great experience and talent have ar. Further, it appears to your Majesty's Comrived at conclusions diametrically opposite; missioners that the benefit to be acquired by and in supporting those conclusions have dis- the managing or limited partners will be at the played reasoning power of the highest order. expense of a more than countervailing amount It is difficult to say on which side the weight of injury to traders, bearing the burden of un-, of authority in this country preponderates. The limited liability, who will have to enter into opinions received from foreign countries pre- competition with those who enjoy the protec- .. ponderates in favour of limited liability, but tion to be given by the proposed Law.. many of the foreign correspondents, while But while your Majesty's Commissioners are. bearing testimony, to the beneficial operation of opinion that it is not expedient to alter the of the law as to partnerships with limited lia-law and allow all persons at their own election bility in their countries, suggest that it may to trade with limited liability, they are aware, I
Mercantile Law First Report of the Commissioners. that many useful enterprises calculated to pro- or servant), Lord Eldon appears to have conduce benefit to the public and profit to those sidered that such contracts might exist without who engage in them, are of such magnitude constituting a partnership, provided, of course, that no private partnership can be expected to that they are made in good faith and are not provide the funds necessary to carry them into partnerships in disguise; and in Pott v. Eyton, effect, or to have the means of superintending 3 Common Bench Reports, page 32, Lord Chief and managing them, of which docks, railways, Justice Tindal expressed an opinion, that it and extensive shipping companies may be made no difference whether the money was taken as examples. And there are others of a received by way of interest on money lent, or more limited character, from which benefit to wages, or salary as agent, or commission on the humbler classes of society may be expected sales. But it appears to your Majesty's Comto accrue, such as baths and washhouses, missioners that in practice they would be atlodging-houses, and reading-rooms, to the tended with so many difficulties and with so establishment of which by large capitalists many results, which the contracting parties there is little inducement. These two classes would probably consider very objectionable, of undertakings it may therefore be desirable that your Majesty's Commissioners do not to encourage, by limiting the liability of those expect they will ever be extensively made. who embark in them. But with regard to In the report of the Committee of the House both, your Majesty's Commissioners think of Commons on the Law of Partnership, dated they should be subjected to some previous in- 8th July, 1851, it was recommended quiry as to the means of carrying them into power be given to lend money for periods not effect, and the prospect of benefit to the pro- less than twelve months, at a rate of interest moters and the public. With regard to those varying with the rate of profits in the business undertakings the execution of which involves in which such money may be employed, the an interference with the rights of property, the claim for payment of such loans being postsanction of Parliament always has been and poned to that of all other creditors; that, in still ought to be required. With regard to such case, the lender should not be liable be. others, the privilege of having a limited lia- yond the sum advanced; and that proper
and bility may be granted by charter ; and for the adequate regulations be laid down to prevent purpose of regulating the granting of charters, fraud.” your Majesty's Commissioners recommend As to the expediency of adopting that sugthat a board be established to decide upon all gestion, your Majesty's Commissioners, who applications for them; and this board should concur in the residue of this report, are not require, in all cases, compliance with certain agreed in opinion. fixed regulations.
With regard to the Usury Laws, your MaMuch observation has been made upon the jesty's Commissioners are of opinion that it expense of obtaining charters or private Acts would be expedient to repeal them altogether, of Parliament. Where a charter is applied for as far as they affect personal securities, but calculated to affect injuriously the interests of offer no opinion with reference to real seothers, it seems contrary to natural justice to curities. refuse them an opportunity of stating and In concluding their brief report, your Ma. proving the validity of their objections, but jesty's Commissioners feel, that although the regulations should be made to keep the ex- details of our mercantile laws may require corpenses of such inquiry as low as possible. rection, yet while there is on every side such Your Majesty's Commissioners feel that it is abundant evidence of satisfactory progress and beyond their province to offer any suggestion national prosperity, it would be unwise to inrespecting the expense of obtaining private terfere with principles which, in their judg; Acts of Parliament. If a charter is asked for ment, have proved beneficial to the general the establishment of baths and washhouses, industry of the country. or other things of that nature, opposition is We humbly offer to your Majesty's gracious hardly to be anticipated, and the Board would consideration this our first Report. have little to do beyond seeing that their fixed rules have been complied with, and the ex
(Signed) T. B. CUŞACK SMITH. (...) C. CRESSWELL.
L.S.) pense ought to be very small.
JOHN MARSHALL The attention of your Majesty's Commis
4 "(L.s.) sioners has been directed to another subject
THOMAS BAZLÉY. (1.8.)
Ro. SLATER.', / which appears to them within the spirit, if not
(1.8) within the letter, of their commission, viz., the
1). expediency of a further relaxation of the Usury Laws, and of enabling capitalists to lend money
[Mr. Bramwell's able paper in favour of to traders at a rate of interest, and agents and permitting limited liability partnerships shall servants to receive remuneration for their be noticed soon.] services by money payments, varying with the hage profits of the business, without being exposed to the hazard of being rendered liable as partDers to the creditors of the concern.
In Exparte Hamper, 17 Ves., page 403 (a case relating to the remuneration of an agent
about 300 pages.
TOWN AND COUNTRY ATTORNEYS.
Review : Atkinson's Shipping Laws of the British Empire.-Bills of Exchange Bill. 169
learned Serjeant admits he has done some The Shipping Lnu's of the British Empire, violence to them both. For instance, bo
consisting of Park on Marine Insurance has struck out from Park that part whick and Abbott on Shipping. Edited by relates to fire insurance ; his object beit. GEORGE ATKINSON, Serjeant-at-Law. I to confine it to marine insurance. But in London: Longman & Co. 1854.
lieu thereof he has substituted new dise MR. SERJEANT ATKINSON, in this von sertations on Steam Navigation, the Pass lume, has departed from the modern prac
sengers' Act, and the like. tice of so enlarging former standard treatises with proclamations and orders in council re.
The declaration of war against Russir, by full statements of recent Statutes and decisions that the original work is almost lating to the matter are added. overwhelmed in the new edition. His ob
" If" (says the Author) “ for this atject has been, as indicated in the title-page, standard works, my countrymen shoul
tempt to rescue from wreck these two to restore“ Park on Marine Insurance, and “Abbott on Shipping,” to their origi- I wish now to make it known that th
think I deserve any salvage remuneration nał simplicity and design, and he has ably. Merchant Seaman's Fund (one of the wises effected his purpose in a single volume of
and most humane of modern institutions) The early editions of those works were
receives voluntary contributions, and is small 8vo. volumes, and the learned Editor regards myself, that I am abundantly rehas retained them as they were originally earned it.”
munerated by the assurance that I have written, on the general principles of the law, instead of attempting to make the book serve at once the threefold purpose of a
BILLS OF EXCHANGE BILL. treatise on general principles, -Statutes at large, –and law reports; but he has omitted no Act of Parliament, nor any reported
We suppose our learned contemporary, case. Where either the one or the other in the Law Times, deems it politic to attempt, terfered with the original text, he has intro- whenever an opportunity offers, to disduced it, "not in extenso, a system (as unite the Profession and persuade the prothe learned Serjeant contends) no less de vincial attorneys that their interests are rogatory to learning than injurious to the neglected by their London brethren. Now, utility of a book," but he has analysed, 1st, it must be recollected that the Metro abridged, and incorporated the new matter politan and Provincial Law Association exwith the text itself. Thus he has embodied pressly represents the country solicitors, in the work with the utmost conciseness and indeed the London members of that the Pilot Acts (6 Geo. 4, c. 125; 16 & 17 society are a comparatively small minority; Vict. c. 129); the Mercantile Marine Act, 2nd, That a large proportion of the great 1850 (13 & 14 Vict. c. 93) ; the Mercantile towns possess active and influential societies Marine Act Amendment Act (14 & 15 Vict. by whom the defect would be supplied if c. 96); the Steam Navigation Act, 1851 it existed ; and, 3rdly. The whole provin(14 & 15 Vict. c. 79); the Passengers’ Act, cial Profession is represented by their Lon1852 (15 & 16, Vict. c. 44); the Customs don agents, whose interests are intimately Consolidation Act, 1853 (16 & 17 Vist. c. connected with the welfare of their clients. 107) ; the Consolidation Register Act (8 & The revival of this often refuted charge of 9 Vict. c. 89), the Navigation Acts (12 & selfishness or neglect against the London 13 Vict. c. 29, and 16 & 17 Vict. c. 131), attorneys, will no doubt fail in its object. and the Wreck and Salvage Consolidation
In our Number for the 17th of June, we Act (9 & 10 Vict. c. 99).
corrected some extraordinary mistakes which The Author has availed himself of all the appeared to have been made as to the law relearning of the reports of the Admiralty lating to public notaries, -it being supposed Courts, and the Privy Council
, and has not that the protests under the proposed Act neglected foreign codes and ordinances, must be made by London notaries, whereas, particularly those which are frequently re beyond ten miles from London, the Master ferred to and quoted by Lord Tenterden, of the Facuities at Doctors' Commons may and has referred to the Code de Commerce empower any attorney to act as a notary...' and Code Civil in the notes. In order to
But there seems to be another oversight bring these two standard works once more
in considering the effect of the Bill, for it within the reach of ordinary undertakings, offers an additional remedy, but does not