CONTENTS OF VOLUME XLVIII.

Taxation of costs-Solicitor's certificate of proper
master, 160

Order on petition to deliver bill of costs, 185
Closing of Accountant-General's office, 188
Transfer of causes, 227

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, MAY 6, 1854.

STATE OF LAW REFORM.

AT the commencement of a New Volume, it will be convenient to take a brief review

of the several measures before Parliament for the alteration or amendment of the Law; and in performing this task, we shall arrange or classify the various projects under the heads-1st. Of Equity. 2nd. Common Law. 3rd. Of Conveyancing. 4th. Of the Ecclesiastical Courts. 5th. Of the County Courts.

I. COURTS OF EQUITY.

suggestions, which we recommend to the consideration of our readers.

II. COMMON LAW.

1. Several important Bills in the department of Common Law are under the consideration of a Select Committee of the House of Lords. The most prominent of these is the Second Common Law Procedure Bill, founded on the last Report of the Common Law Commissioners. We are not aware that there is any material objection to the main features of this proposed amendment of the Law, by which expense will be saved and litigation expedited. It is much to be regretted that the all-absorbing topic of the war should thus suspend the progress of useful legislation in matters affecting the due administration of justice. We have no doubt that this measure, with the regulations of the Judges which might follow it, would go far to restore the public opinion in favour of our ancient tribunals, and put down that vulgar clamour with which they have been assailed.

It is remarkable that in the present Session, amongst the numerous Bills before Parliament, we are not called upon to include the Courts of Equity, which for the last quarter of a century, at least, stood as the foremost object of popular complaint. It seems that the Statutes of 1852 and 1853, with the various Orders of Court, have for the present silenced the reforming clamour; and time is allowed to digest and consider the alterations that have taken 2. Connected with this is a Bill to enable place, and test their efficacy by practical executions to be issued into any part of the experience. There is, however, one im- United Kingdom on judgments obtained in portant part of the recent changes in Equity any Court in England, Scotland, or Ireland; Procedure, which is still under the consider- and to enable process to be served in any ation of the Chancery Commissioners, part of the United Kingdom. Thus affordnamely, the mode of taking evidence. ing more effectual means than now exist of Several questions have been issued, em- enforcing pecuniary engagements. These bodying the objections to the expense and are the measures which belong to the safe delay of viva voce examinations, and invit- and useful department of Law Reform. ing the practitioners to communicate to the Commissioners their opinion on the several objections which have been stated, and to state the remedies they suggest. These questions were published in our last Number, preceded by some observations and VOL. XLVIII. No. 1,365.

3. Next comes Lord Brougham's Bills of Exchange Bill, by which it is proposed to assimilate the Law of England to that of Scotland, enabling the holder of a dishonoured bill of exchange, after noting and protesting it, to register the debt as a judg

ment, which is to be deemed final unless with deeds of trust or other collateral inthe debtor appears and satisfies the Judge struments. that he has a good defence, and gives se- These primary and other important sugcurity for the payment of the amount if gestions, are of course to be considered by decided against him. One objection to this the Real Property Commissioners, but it measure is, that it will throw the burthen seems clear that no legislative measure can of negative proof on the defendant, instead be brought forward in the present Session. of leaving the plaintiff to establish the The probability is, that the Commissioners' affirmative. It also urged that where there will not be able to make their report during is no defence to an action on a bill of the present Session, and if they should exchange, the holder may, according to the complete it before the next Session it will present Law, obtain final judgment in eight be quite as much as can be reasonably exdays, and may issue execution in sixteen pected. The last Real Property Commisdays. Further, it is objected, that to com- sioners were occupied about three years in pel every party to a bill of exchange to find taking evidence, considering the subject, bail or submit to an execution because the and preparing their report. Let it be reacceptor has failed in discharging his obli- collected that there is no question before gation, will be an unjust and intolerable the Public or the Profession of such maghardship, and must largely diminish the nitude, difficulty, and importance, as the facilities now afforded in commercial business by these negotiable securities.

4. Another Bill of Lord Brougham, also before a Select Committee of Peers, is the Arbitration Bill, in regard to which it may be observed, that in the Common Law Procedure Bill, provision is made for compelling the parties to refer matters of account to arbitrators at an early stage of the proceedings, thereby preventing the delay and expense which now take place where either party rejects the offer of a reference.

alteration contemplated in our ancient, abstruse, and complicated system of Real Property Law; and therefore, we earnestly trust, that there may be no haste in considering all the various suggestions which have been made, in weighing all the arguments carefully, and coming to as safe a conclusion as the nature of the subject will permit. In the meantime the solicitors, especially those practising in the country, should continue their attention to the several plans which have been recommended for effecting a registration either of titles or of deeds.

5. The Declaratory Suits Bill of Lord Brougham can scarcely be objected to by the Profession. Its effect would be to ren- 2. The call for this branch of reform is der more efficacious, suits for the perpetua- chiefly occasioned by the amount of contion of testimony and the settlement of antici- veyancing charges, often much exaggerated, pated claims, now rarely, if ever the subject and which it seems impracticable materially of Bills quia timet. Perhaps, after all, the to reduce, so long as the present rigid rules proposed new Statute may be as little re- of taxation prevail. This brings us to the sorted to as the old,-for remote events, consideration of Lord Brougham's revised distant contingencies, and doubtful ques- Bill for empowering, and indeed requiring tions, rarely excite men to action at the peril the Taxing Masters to consider not merely of considerable costs and doubtful success. the length of a deed or instrument, but the skill and labour employed and the responsi III. LAW OF PROPERTY AND CONbility incurred in the transaction. VEYANCING.

This proposition was some years ago 1. Cur readers are probably aware, that strongly resisted, and the Taxing Masters by almost common consent, the former pro- were, we believe, of opinion that the alteraject of registering all deeds and instruments tion was impracticable. It was, however, acrelating to land, has been abandoned in companied by an attempt to fashion all deeds favour of a plan for registering titles, and upon one model, and to give a parliamentary that along with the Act for such registra- signification to words and phrases incontion, there should be an alteration of the sistent with, and often opposed to, their Law of Real Property, whereby the absolute ordinary signification. So that, apart from legal estate should be vested in the owner all professional objections to the plan, the or trustees, and that such legal estate public would have been unable to undershould alone be registered, leaving the stand their short-form leases or conveyances parties beneficially interested to protect without constant reference to the Act of themselves by entering caveats or "inhibi- Parliament which defined their hidden tions," without incumbering the register meaning. Now, however, it appears that

State of Law Reform.

the draftsman will be at liberty to prepare IV. TESTAMENTARY JURISDICTION OF his deeds and documents in plain and intel- THE ECCLESIASTICAL COUrts. ligible English, in order that "those who run may read;" but he cannot be reinunerated The Bill for transferring the Testamentary for multiplying words, or providing with Jurisdiction of the Ecclesiastical Courts to superabundant caution for possible misin- the Court of Chancery has passed the House. terpretations or ingenious misconstructions of Lords, but at present remains suspended in the House of Commons. As the Solicitorof language. His reward will depend on the sound legal knowledge and scientific General, it is understood, is strongly in favour accuracy displayed in his compositions, and of the measure, it may be presumed that he in the concise and clear expression of the is controlled by the Government, and preintention of the parties, and the exclusion vented from pressing it forward. It must of all after doubts and difficulties. As, be admitted that although the Court of however, he is to be responsible for the Chancery, from the extensive improvements sufficiency of his skill and labour, the which have been effected in its procedure, extent of that responsibility should be esti- stands before the public in a more favourmated in the payment awarded for the work able position than formerly, it is not yet so performed. For, it must be recollected, popular as to give it the preference over all that whilst the solicitor adhered to estaother Courts as the successor of Doctors' blished forms of conveyance and adopted a Commons. Many would have supported settled language to which the test of ages hesitate in adding the business to the Court a new and distinct Probate Court, who had been applied, he ran no risk, beyond the failure of his judgment in selecting the of Chancery. Yet it must be admitted, proper forms applicable to the transaction. that as in Chancery the construction of Upon the whole, taking one case with wills is for the most part decided, the seveanother, he was adequately paid by a fixed ral Judges of that Court are eminently rate on the length of the papers. Now, qualified to deal also with the grant of however, he is required to incur the re- probates and administrations. sponsibility, as well as the labour, of abridging the old settled forms, and skilfully manufacturing new instruments, the legal sufficiency of which may not be ascertained for years to come. The new rules of taxation consequently require to be very carefully considered before they are adopted, in order to provide for the contin gencies that may arise in the various and complicated transactions in which solicitors are engaged.

The main difficulty, however, in effecting the change, consists in the necessity of giving a fair and just compensation to the advocates and proctors of the Ecclesiastical Courts. The officers, strictly so called, whether sinecurists, or performing valuable duties, are to be compensated for the loss of office; but the practitioners are offered only a limited exclusive practice in the New Court, which is grossly inadequate to satisfy their claims. This is the great difficulty to 3. On the subject of the Registration of be overcome, and we cannot at present see Legal Instruments, our readers are aware that how it can be effected. A large body of under recent Statutes warrants of attorney the solicitors who (with their brethren in and the orders of Judges are required to be general), would be benefited hereafter by entered in the proper office, and the omis- being entitled to practise in testamentary sion of such registration renders them matters, proposed, we understand, to petiinvalid. Many frauds having been perpetion the Legislature for a full compensation trated, or unjust preferences given, under to the proctors, on the practice being thrown assignments or bills of sale of property, it open forthwith; but the proctors object has been proposed that such assignments of London solicitors signed a petition in to this course, and a considerable number should be registered in the same manner as Warrants of attorney. A Bill for effecting favour of continuing the testamentary juthis object has passed the House of Lords, risdiction in the same hands, subject to and is now in a Committee of the House of such improvement of the practice and Commons.1 course of proceeding as might be deemed expedient.

The projected Joint-Stock Trust Company, to which we have of late often adverted, should not pass unnoticed in this Summary of Profesaional Measures. We shall continue to give the earliest information on the subject.

Thus the matter stands, and according to present appearances, it is not improbable that the Bill will be postponed till another Session, unless the advocates and proctors can agree with the Government on some modification of the scheme that may be sa

35

State of Law Reform.-Conveyance of Real Property Amendment Bill.

tisfactory to Doctors' Commons and just to the public.

V. COUNTY COURTS.

On all these measures, and whatever concerns the just interests of our brethren, we invite the communications of our readers, in order that we may fully understand their views and promote their objects.

The only Bill at present before Parliament relating to the County Courts, is that of Lord Brougham, for extending the right of appeal given by the 13 & 14 Vict. c. 61, s. CONVEYANCE OF REAL PROPERTY 14, to the cases in which jurisdiction is AMENDMENT BILL. given by the 17th section under the agree

matter exceeds 507.

ment of the parties where the subject-TAXING COSTS FOR SKILL AND LABOUR. Usually there has been an annual struggle THIS Bill was introduced by Lord to extend the jurisdiction of the County Brougham on the 10th April, and has Courts, step by step, until it appeared, they just been printed. It proposes to amend would fall little short of "Courts in the first and extend certain of the provisions of an instance" in all common law actions,-leav- Act made in the 8th and 9th years of her ing for the most part the Courts at West- present Majesty, intituled "An Act to faminster to sit on appeals. These ambitious cilitate the Conveyance of Real Property." projects have been for the present suspended The preamble recites that by the 8 & 9 by the Commission to inquire into the Juris- Vict. c. 119, "An Act to facilitate the diction and Practice of the County Courts. Conveyance of Real Property," it was The Commissioners are actively engaged in among other things enacted, that in taxing collecting evidence, and by the next Session any bill of costs for preparing and executof Parliament it may be hoped that suf- ing any deed under that Act the taxing ficient materials will be obtained finally to officer should, in estimating the sum proper settle the jurisdiction of these Small Debt to be charged, consider, not the length Courts within proper limits, and to improve their practice. At present the suitors pay for these "cheap" Courts about the same as the cost of the Court of Chancery, viz., upwards of 200,000l. a year.

thereof, but only the skill and labour employed and responsibility incurred in the preparation thereof. It being deemed expedient to extend the same provision to the case of all deeds, wills, and instruments, it is proposed to enact as follows:

1. In taxing any bill of costs for preparing or executing or preparing and executing any deed, will, or other instrument in writing, it shall be lawful for the taxing officer and he is hereby required, in estimating the proper sum to be charged for such transaction, to consider, not the length of such deed, will, or other instrument, but only the skill and labour employed and the responsibility incurred in the preparation.

There are some other topics which we must for the present defer. Parliamentary Reform, which included a partial representation of the Profession, having been deferred sine die, we need not at present advert to it; but must acknowledge that, so far as we have heard, the various Law Societies have not evinced much interest in the suggestions laid before them. When the proper time arrives, we shall again call the attention of our readers to the subject. We reserve for a separate Article the 2. This Act shall not extend to Scotland. proposed improvements as well in general 3. This Act may be repealed, altered, as Legal Education. Some delay has oc or amended during the present Session of curred in issuing the Commission of Inquiry Parliament.

into the state of the Inns of Court. Wel presume, it will also extend to the Inns of Chancery. The lesser as well as the greater Inns, or "ancient and honourable Societies" for the study and practice of the Law, will have to put their houses in order for the good of the Profession at large.

In the department of Criminal Law, a measure is proposed that may affect our provincial brethren, namely, the appointment of a public prosecutor. The duties and powers of such an officer require to be carefully considered.

thereof.

On the introduction of this measure the following debate took place, as reported in The Times :-

Lord Brougham, in laying upon the table a Bill for the amendment of the conveyance of real property said, its object was to simplify some of the proceedings, especially with reference to the taxing of costs. He thought that it was necessary that the learning and skill of the persons engaged in drawing the necessary deeds should be taken into consideration rather than that the taxing master should be guided