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The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JULY 29, 1854.

LOCAL COURTS OF EQUITY. contemplated by the Government, at the

time a former Vice-Chancellor of the County

Palatine was appointed, to abolish the COUNTY PALATINE OF LANCASTER.

Equity Court altogether, and the learned In ancient times local Courts, both of gentleman, we understand, accepted the Law and Equity, were not only desirable, office on the understanding that if it were but absolutely necessary. When a fortnight abolished he would have no claim to comat least was occupied in travelling from the pensation. We are not aware whether the northern counties to the metropolis, and present able Judge was appointed on a when the danger was so great that men similar understanding ; but we believe there made their wills before starting on their is no doubt that the abolition of the Equity journey, it was essential that County Courts Court was not long ago ander the considerashould be established, and we need not tion of the authorities. marvel that the important counties palatine It does not tell favourably for the Court, of Lancaster and Durham, as well as Ches that notwithstanding the numerous alterater, and the principality of Wales, should tions effected by that eminent Judge Sir possess extensive jurisdictions, and that all William Page Wood, when he was Vicethe litigation of those early times, of whatever Chancellor, under the Act of 13 & 14 Vict. nature or amount, came within the province c. 43 (1850), the Legislature is again called of the local tribunals.

upon to make further amendments in order It is remarkable that, amongst the first to increase the business of the Court. of our modern law reforms, the Great Ses- The clauses of the Bill by which it is prosions of Wales and the extensive local posed to substitute the Lords Justices in jurisdictions of the principality were abo- Chancery for the Common Law Judges of lished, the business was transferred to the Assize in cases of appeal, are manifestly an Superior Courts, and the practitioners were improvement, and the powers also given to admitted on a separate Roll at Westminster the Court of Appeal to order the transfer of Hall

. The special jurisdiction of the Courts causes from the Local to the Superior Court of the county of Chester followed the same are also beneficial; but the question still fate.' And although the Courts of the remains to be decided, whether in the im. County Palatine of Durham remain in statu proved state of the Court of Chancery, it

quo, their occupation has diminished to a will not be preferable to transfer the whole comparatively small amount.

to the metropolitan Court. sd It is not surprising that the county of We understand that the attention of the Lancaster should form an exception to the Council of the Incorporated Law Society decay of these ancient tribunals. Liverpool has recently been called to the probable and Manchester alone are sufficient to form operation of the Bill if passed into a law; a populous county of themselves; but it and they have promptly taken the subject does not appear from the history of the into their consideration and prepared a Court that, even in that important district, statement from which we extract the fol administration suits and other equity busi- lowing objections to the measure and ness can be successfully conducted. 'If we which seem to demand the serious attenare not misinformed, it was a few years ago tion of the Law Officers of the Crown

VOL. XLVIII. No. 1,377.

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j 234

Local Courts of Equity-County Palatine of Lancaster. before the Bill be allowed further to pro- and debtors of every class, resident in London ceed :

or in places the most distant from Lancashire,

will be liable to proceedings against them åt “ The Chancery Court of Lancashire was the suit of creditors, legatees, and claimants of originally intended to be a purely local Court, all kinds; and they must appear in person or confined to local property and objects, in by their counsel and solicitors wherever the matters of litigation between persons resident local Court may sit or its officers discharge in the county ;-- the Judge and his officers their functions. being resident there, at a time when communi- “Whilst the Court is empowered by the Bill cations with the High Court of Chancery were to hold its sittings in London, the official busidifficult, inconvenient, and expensive ; and for ness must be conducted in Lancashire. From these purposes the existing law appears to be thence all proceedings will be issued for service more than sufficient.

on the defendants, whether in the county or “ Under the proposed Bill, the business of elsewhere; and there the suits will be conthe Court may be carried on, without the ducted, and accounts taken before the officers Judge, or the Bar, ever appearing in the Pala- of the Court. Thus all parties residing at a tine, or even any of its suitors having been there distance will be put to great expense, incon. (other than casually, in order to confer no- venience, and loss of time. minal jurisdiction), and to enable this local “ By the 10th section persons resident 'anyCourt for Lancashire to have all its hearings, where in England may be brought within the primary, interlocutory, and appellate in Lin- jurisdiction of the Lancaster Court'; atid even coln's Inn.

when out of the jurisdiction, they can be "The greatest part of the work of a Court of reached by an order from the Court of Appeal, Equity is administrative ; more than half of the which order is to be granted on the plaintiff's business of the High Court of Chancery is of application exparte, without notice to or hear. that character. But administration can only ing the defendant; and he is to be compelled be of the entire of the property subject to a to go to Lancashire to defend himself, except trust. If a man die possessed of a single share that, at the peril of costs, he may move to disin a public company, or other property of charge the order after it is made. limited amount in the county, and all the rest “By the 15th section, future Statutes appliof his estate elsewhere, it would be extravagant cable to the High Court are to extend to the to allow any one to compel all the other cre- local Court. This is very objectionable, and ditors and legatees to resort to Lancashire, and will lead to confusion, for the subsequent Acts employ Lancashire advisers and counsel for all may not be intended to apply to the County the matters relating to the trust : still more to Palatine ; and where such is the intention, it make all infants interested under the estate should be expressly declared : otherwise new (though neither they nor their parents were and extraordinary powers may be conferred on ever in the county in their lives), wards of the the local Court, which the Legislature never Court there, and all subject to be educated and contemplated. managed under the control of its Vice-Chan- The extensive changes in the practice cellor.

of the Courts of Equity of late years have "Formerly, when it was attempted to ren- enabled any person, with however uncertain der this Court really efficient, it was found a claim, to commence a suit, and afterwards that though nominally a Lancashire Court, to add all persons who may appear to have it must be allowed to sit in Lincoln's Inn, any interest in the subject matter. It is and possesses jurisdiction over persons out proposed now to endow the County Palaof the County Palatine. Accordingly, by tine Court with this power, so that, if the the 13 & 14 Vict. c. 43, s. 13, power is most meagre footing for a suit can once he given to the Vice-Chancellor of the County established within its jurisdiction, it may Palatine to hear cases out of the limits of draw to itself the fullest authority over perthe jurisdiction ;-by s. 14, to direct process sons and property in every part of the em. to be served out of the jurisdiction, where the pire. The only reason in favour of a local party has submitted to the jurisdiction. And Court of Equity was the advantage in certain by s. 15, where a decree or order cannot be cases of having accounts and inquiries taken enforced by reason of the party being out of where the parties and witnesses reside; but the jurisdiction, it shall be enforced by making this advantage is now attainable by the powers it an order of the High Court of Chancery. given to the High Court of Chancery of em. *'" These powers, already sufficiently compre- ploying local accountants in cases requiring hensive, are now proposed to be farther ex- them.”,11

111,1

15,0t leny tended.

bqot 197:45 ". The present Bill will have the effect of In considering whether it may possibly giving jurisdiction to the local Court concur. be expedient to continue an Equity Court rently with the Court of Chancery in all cases in Lancashire for the sake of the great in which there is any equitable question relat. towns of Manchester and Liverpool, we ing to property in the County Palatine, and on all claims and demands by persons residing in may advert to the Equity jurisdiction poss the County Pálatine against any party whererer sessed by the Lord Mayor's Court" in the resident. Thus executors, trustees, agents, city of London. It would very much sur.

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Local Courts of Equity.--New Statutes effecting Alterations in the Law. 235 prise the bankers, merchants, and traders Not to affect the admissibility of evidence of London, if the solicitor of any of them where now receivable. were to advise the adoption of proceedings in the City Court, instead of the High The following are the Title and Sections Court of Chancery. True it is, that the of the Act :Lord Chancellor, the Lords Justices, the An Act to enable the Courts of Law in EngMaster of the Rolls, and the Vice-Chancel- land, Ireland, and Scotland to issue Prolors are close at hand, and are preferred to cess to compel the Attendance of Witnesses the Recorder of London (however esteemed

out of their Jurisdiction, and to give effect as a criminal Judge). But then in Lanca

to the Service of such Process in any Part shire there is no Judge to administer justice

of the United Kingdom. [10th July, 1854.] at men's own doors, nor any Equity Bar.1

Whereas great inconvenience arises in the The suitors must come to London to follow

administration of justice from the want of a

power in the Superior Courts of Law to comthe Judge,-a sufficient proof that there is pel the attendance of witnesses resident in one so little Court business to transact that no part of the United Kingdom at a trial in anequity man of any eminence can be found other part, and the examination of such witto devote himself to the local duties of the nesses by commission is not in all cases a sufoffice. "The mountain must come to Ma. ficient remedy for such inconvenience : be it homet. He will not go to it.” Surely the therefore enacted, as follows:rational course would be to transfer the

1. If, in any action or suit now or at any official business to London, as the judicial jesty's Superior Courts” of Common Law at

time hereafter depending in any of her Mais already there, and compensate the local Westminster or Dublin, or the Court of Sesofficers for any loss they may sustain. sion or Exchequer in Scotland, it shall appear

to the Court in which such action is pending, NEW STATUTES EFFECTING ALTE- or, if such Court is not sitting, to any Judge

of any of the said Courts respectively, that it RATIONS IN THE LAW.

is proper to compel the personal attendance at

any trial of any witness who may not be with17TH VICTORIA, 1854.

in the jurisdiction of the Court in which such

action is pending, it shall be lawful for such The Acts of the present Session printed in Court or Judge, if in his or their discretion it the present Volume, with an Analysis to each, shall so seem fit, to order that a writ called a will be found at the following pages :

writ of subpæna ad testificandum or of sub

pæna duces tecum or warrant of citation shall Income Tax, cc. 17, 24, pp. 46, 134, ante. issue in special form, commanding such witCommons' Inclosure, c. 9, p. 64.

ness to attend such trial wherever he shall be County Court Extension, c. 16, 121.

within the United Kingdom, and the service Registration of Bills of Sale, c. 36, p. 216.

of any such writ or process in any part of the

United Kingdom shall be as valid and effectual Warwick Assizes, c. 35, p. 218.

to all intents and purposes as if same had been

served within the jurisdiction of the Court from ATTENDANCE OF WITNESSES.

which it issues. 17 & 18 Vict. c. 34.

2. Every such writ shall have at foot thereof

a statement or notice that the same is issued Courts of Law in England, Ireland, and by the special order of the Court or Judge, as Scotland may issue process to compel the the case may be; and no such writ shall issue attendance of witnesses, although not with without such special order. Darls' in their jurisdiction; s. 1. Toote hits

3. In case any person so served shall not Statement to be made at the foot of writ appear according to the exigency of such writ

or process, it shall be lawful for the Court out that it is issued by special order ; s. 2. of which the same issued, upon proof made of Witnesses making default to be punished the service thereof, and of such default

, to the by the Courts of the country in which the satisfaction of the said Court, to transmit a process was served ; $. 3. doiH od od nigvis certificate of such default under the seal of the

Persons not to be punished if it shall same Court, or under the hand of one of the appear that sufficient money has not been Judges or justices of

f the same, to any of her tendered to pay expenses ; s. 4.

Majesty's Superior Courts of Common Law at | Aet not to prevent the issuing of a Com- England, or in case such service was had in

Westminster, in case such service was had in mission to examine witnesses'; $0 5.qxs ad Scotland to the Court of Session or Exchequer sa to ale adt mot antiderare. I si at Edinburgh, or

or in case such service was had w In the City of London Court the suitors in Ireland to any of her Majesty's Superior bave now the advantage of the whole Metro: Courts of Common Law at Dublin ; and the politan Bar: yet rarely is any equity business Court to which such certificate is so sent shall 2012 1971 bltrow Isobuol lo yžio and may thereupon proceed against and punish

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such person.

236

New Statutes effecting Alterations in the Law,--Admiralty Court Bill. the person so having made default in like It shall not be necessary to sue out any manner as they might have done if such per- commission for the examination of any witson had neglected or refused to appear in obe nesses in any matter, suit, or proceeding in the dience to a writ of subpæna or other process said Court; and any examiner appointed by issued out of such last-mentioned Court. any order of the said Court shall have the like

4. None of the said Courts shall in any case power of administering oaths as Commissionproceed against or punish any person for hav- ers now have under commissions issued by the ing made default by not appearing to give evi- Court for the examination of witnesses ; s. 6. dence in obedience to any writ of subpæna or All answers, examinations, affidavits, deother process issued under the powers given positions on oaths, declarations, affirmations, by this Act, unless it shall be made to appear and attestations in or relating to any matter, to such Court that a reasonable and sufficient suit, or proceeding in the said High Court of sum of money to defray the expenses of Admiralty shall and may be sworn and taken coming and attending to give evidence, and of in England and Wales before any such Com. returning from giving such evidence, had been missioner appointed as aforesaid, or before any tendered to such person at the time when such magistrate or justice of the peace or before any writ of subpæna or process was served upon Commissioner to administer Oaths in Chan

cery; s. 7. 5. Nothing herein contained shall alter or All answers, examinations, affidavits, depoaffect the power of any of such Courts to issue sitions on oath, declarations, affirmations, and a Commission for the examination of witnesses attestations in or relating to any matter, suit, out of their jurisdiction, in any case, in which or proceeding in the said High Court of Adnotwithstanding this Act, they shall think fit miralty of England shall and may be sworn to issue such Commission.

and taken in Scotland or Ireland, or the Isle 6. Nothing herein contained shall alter or of Man, or the Channel Islands, or any of affect the admissibility of any evidence at any them, or in any colony, island, plantation, or trial where such evidence is now by law re- place under the dominion of her Majesty in ceivable, on the ground of any witness being foreign parts, before any Judge, Court, mabeyond the jurisdiction of the Court, but the gistrate, notary public, or person lawfully admissibility of all such evidence shall be de- authorised to administer oaths in such country, termined as if this Act had not passed. island, or plantation, or place respectively, or

before any of her Majesty's consuls or vice

consuls in any foreign parts out of her MaADMIRALTY COURT BILL.

jesty's dominions; and the Judge and other officers of the said High Court of Admiralty

shall take judicial notice of the seal or signaCOMMISSIONS TO SOLICITORS, PROCTORS,

ture, as the case may be, of any such Judge, AND NOTARIES, TO ADMINISTER OATHS.

Court, magistrate, notary public, person, conIt shall be lawful for the Judge of the High sul, or vice-consul attached, appended, or subCourt of Admiralty of England, and he is here- scribed to any such answers, examinations, by empowered, from time to time and as and affidavits, depositions on oath, declarations, when he may think fit, to appoint any person affirmations, and attestations, or the docupractising as a proctor, solicitor, or notary ments to be used in the said Court; 8. 8. public in any part of England and Wales to Penalty for false swearing, &c.; s. 9. administer oaths and take declarations, af- Penalty for forging signature or seal of firmations, and attestations in or relating to Judge, &c., empowered to administer oaths any matter, suit, or proceeding in the High under this Act ; s. 10. Court of Admiralty of England; and such The Judge of the High Court of Admiralty persons shall be styled “ Commissioners to of England may, whenever it shall appear to administer Oaths in Admiralty," and shall be him necessary so to do, authorise any person entitled to charge and take a fee of 1s. 6d. for to administer oaths and to take affidavits, de every oath administered by them, and for every positions on oath, declarations, affirmations, declaration, affirmation, and attestation taken and attestations during the time such person by them, subject to any order of the Judge of shall be on the high seas, or in any place not the said Court varying or annulling the same; within her Majesty's dominions, in or relating

to prize proceedings in the said Court, and it The fiat or document by which any such shall not be necessary to affix any stamp to the Commissioner shall be appointed shall bear a fiat or document by which any such person stamp of 1., and it shall not be necessary that shall be appointed ; s. 11. .. any such appointment should be published in Power of Judge to issue commissions as the London Gazette ; s. 4.

heretofore, to administer oaths, &c. ; s. 12. .. It shall not be necessary to sue out any Power to Court to proceed by way of mocommission to take the personal answers of nition ; s. 13. any party in any matter, suit, or proceeding in Her Majesty may by order in Council vary, the said Court; and any such answers may be alter, or abolish fees, and provide for their filed without any further or other formality collection by stamps; 8. 14. than is required in the swearing and filing of After such order fees not to be received in affidavits ; s. 5.

money, but by means of star

8. 3.

$$. 15.

Real Estate Charges' Bill.- Extension of Inclosure Acts.

237 Commissioners of Inland Revenue to give

1. Where any person shall die seised of or the necessary directions as to the stamps, and entitled to any estate or interest in any land to keep separate accounts ; s. 16

which shall at the time of his death be charged Provision for sale of stamps ; s. 17.

with the payment of any sum or sums of money Commissioners of Inland Revenue may by way of mortgage, and such person shall make regulations as to allowance for spoiled not, by his will or deed or other document, stamps ; s. 18.

have signified any contrary or other intention, Provisions of former Acts relating to stamps the heir or devisee to whom such land shall to be applicable to stamps under this Act : s. descend or be devised shall not be entitled to 19.

have the mortgage debt discharged or satisfied No document which by any order as afore out of the personal estate, but the lands shall, said ought to bave had a stamp impressed as between the different persons claiming thereon or affixed thereto shall be received or through or under the deceased person, become filed or be used in relation to any proceeding primarily liable to the payment of all mortgage in the High Court of Admiralty, or be of any debts with which the same shall be charged, validity for any purpose whatsoever, unless or every part thereof according to its value bearuntil the same shall have a stamp impressed ing a proportionate part of the mortgage debts thereon or affixed thereto in the manner discharged on the whole thereof: provided that rected by such order : provided always, that if nothing herein contained shall affect or diat any time it shall appear that any such docu- minish any right of the mortgagee on such ment' which ought to have had a stamp im- lands to obtain full payment or satisfaction of préssed thereon or affixed thereto has, through his mortgage debt either out of the personal mistake or inadvertence, been received or estate of the person so dying as aforesaid or filed or used without having such stamp im- otherwise. pressed thereon or affixed thereto, the Judge

2. When any person shall die seised of or of the said Court may, if he shall think fit, entitled to any land for an estate of inheritance, order that a stamp, not exceeding in value four and having the power to dispose of the same times the amount of such original stamp, shall by will, and shall have by his will directed the be impressed thereon or affixed thereto; and same to be sold for the payment of his debts thereopon, when the proper stamp shall, in or the purposes of his will

, then unless such compliance with such order, have been im- person shall by his will have signified any con, pressed on such document or affixed thereto, trary or other intention, the land so devised such document, and every proceeding in refer- shall be deemed by a Court of Equity to be ence thereto, shall be as valid and effectual as converted into personal estate, and the whole, if such stamp had been impressed thereon or or any portion thereof that may not be reaffixed thereto in the first instance ; s. 20.

quired for the purposes mentioned in the will, Officers guilty of fraud or wilfully neglect shall be divided under the Statute for the Disin relation to stamps liable to be dismissed ; s. tribution of the Estates of Intestates. 21.

It shall be lawful for the Commissioners of her Majesty's Treasury, on the recommenda- EXTENSION OF INCLOSURE ACTS. tion of the Judge of the High Court of Admiralty, to order to be paid to any person oxecuting the office of registrar, marshal, clerk, 1. LANDS subject to be inclosed may be exor servant of the said Court, who shall be af- changed pending inclosure proceedings. flicted with some permanent infirmity disabling 2. Undivided shares in any land or other him from the due execution of his office, and subject matter of exchange may be exchanged shall be desirous of resigning the same, an an- upon the application of the person interested. nuity not exceeding two-third parts of the yearly 3. Land to include incorporeal hereditasalary which such person shall be entitled to at the time of his resigning the same, to be paid 4. Where any land or hereditaments shall and payable at the same times and in the same have been leased for a term which shall have manner as the salaries of the said registrar, exceeded 100 years from the commencement marshal, clerk, or servant are ; s. 22.

thereof, and it shall be shown to the satisfacExcept where it shall be otherwise expressed, tion of the Commissioners that no rent or acthe provisions of this Act shall apply to all in- knowledgment has been paid or given for the stance, prize, and other matters, suits, and pro• period of 20 years, or that the person entitled ceedings of which the High Conrt of Ad- to the rent reserved upon such lease cannot, miralty may legally take cognizance; 8. 23.

upon reasonable inquiry, be ascertained, the

person in the actual possession or enjoyment REAL ESTATE CHARGES BILL. of such land or hereditaments, or in the actual

receipt of the rents and profits thereof as owner This Bill, as amended in Committee and of such term, shall be and be deemed to be the on consideration of Amendments, recites that person interested within the provisions of the Equity whereunder the real and personal assets 5. Extending time for application for converof deceased persons are administered should be sion of land to be inclosed into a regulated amended, and it proposes to enact as follows: pasture.

ments.

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