New Statutes effecting Alterations in the Law. 439 Justices, have and exercise the like jurisdic- of pleadings and other proceedings; and also tions, powers, and authorities as might have to regulate the taxation, allowance, and paybeen exercised by the Chancellor of the said ment of costs, and all other the business of the Duchy and County Palatine sitting alone, if said Court: be it enacted, that all the powers this Act had not been passed. thereby given to the Chancellor of the said Duchy and County Palatine of Lancaster shall not, from and after the passing of this Act, be exercised with such advice and assistance as aforesaid, but shall be exercised with the advice and consent of one of the Lords Justices of Appeal in Chancery for the time being and the Vice-Chancellor of the said County Palatine for the time being. 3. All decisions, decrees, or orders of the Court of Appeal shall be subject to appeal to the House of Lords in the cases and under the conditions in and under which the like decisions and decrees or orders of the Chancellor of the said Duchy and County Palatine, sitting alone, or together with any other person or persons, would have been subject to such appeal if this Act had not been passed. 4. The decision of the majority of the Court of Appeal shall be taken and deemed to be the decision of the said Court; and if the Judges of the Court be equally divided in opinion on any cause or matter brought before the Court by way of appeal, the decree or order appealed from shall be taken and deemed to be affirmed. 5. The Court of Appeal shall make such regulations as may from time to time be necessary for fixing and regulating the sittings and business of the Court; and the registrar and other officers who, according to the existing practice, are attendant upon the Chancellor of the said Duchy and County Palatine in matters of appeal in his Chancery shall be the registrar and officers of the Court of Appeal, and shall be in like manner attendant upon the said Court of Appeal: provided always, that any order of the said Court of Appeal may and shall be drawn up by any registrar of the High Court of Chancery, if so directed by the said Lords Justices or either of them. 7. In all cases in which, by reason of any person being out of the jurisdiction of the Court of Chancery of the said County Palatine, or otherwise, effectual protection cannot be given to any ward of the said Court, or to any executor, administrator, officer of the Court, or other person entitled to the protection of the said Court, against any action, suit, or other proceeding, or in which, for the same reason or otherwise, any contempt of the said Court cannot be effectually punished, it shall be lawful for the Court of Appeal, upon the application of any person concerned, to make such order or orders for the protection of such ward, or of such executor, administrator, officer of the Court, or other person as aforesaid, or for the punishment of any such contempt, as to the said Court of Appeal shall seem just, and according to the practice of the High Court of Chancery in like matters; and every such order shall have the same operation and effect as an order of the High Court of Chancery, and shall and may be enforced, and all proceedings shall and may be had thereupon, as if the same had been made by that Court, 6. Whereas it was enacted by the first section of the said recited Act that it should be lawful, from and after the passing of the said 8. In all cases in which any person who may Act, for the Chancellor of the Duchy and be a necessary or proper party to any suit or County Palatine of Lancaster for the time be- other matter in the Court of Chancery of the ing, with the advice and consent of the Vice- said County Palatine shall not be subject to Chancellor of the said County Palatine for the the jurisdiction of the said Court, it shall be time being, and one of the Vice-Chancellors of lawful for the Court of Appeal, on the applicathe High Court of Chancery, to be named for that tion of the plaintiff in such suit, or of any perpurpose by writing under the hand of the Lord son to whom the conduct of such suit may High Chancellor or other officer having the have been committed, or of the party proceedcustody of the great seal, or (if more than one) ing in such other matter, if that Court shall of the Chief Commissioner or officer having think fit, and according as it shall appear to such custody, by any rules or orders to be by that Court best calculated to answer the ends him from time to time made, with such advice of justice, either to order and direct that the and consent as aforesaid, to make such altera- said suit or other matter be transferred to the tions as to him might seem expedient in the High Court of Chancery, or otherwise to order form of writs and commissions, and the mode and direct that such service as may be proper of sealing, issuing, executing, and returning be effected upon such person out of the juristhe same; and also in the form of and mode diction of the said Court of the said County of filing bills, answers, depositions, affidavits, Palatine, and such application shall be made or other proceedings; and in the form or mode either ex parte or upon such notice as the said of obtaining discovery by answer in writing or Court of Appeal shall think fit: provided, neotherwise; and in the form or mode of plead-vertheless, that if such order for service shall ing and of taking evidence; and generally of have been made without notice to any person proceeding to obtain relief in the Court of affected thereby, it shall be lawful for the Chancery of the said County Palatine, and in Court of Appeal, upon the subsequent applicathe general practice of the said Court; and tion of any such person, to make such order also in the form and mode of proceeding be- for transferring the said suit or other matter to fore the registrar of the said Court; and of the High Court of Chancery, or otherwise, as drawing up, entering, and enrolling orders and to the said Court of Appeal shall seem just. decrees, and of making and delivering copies 9. In case such suit or matter shall be di 440 New Statutes effecting Alterations in the Law. rected to be tranferred as aforesaid, all proceed- Judge thereof might exercise in the like mat ings therein shall be transmitted by the officer of the Court of the said County Palatine to the proper officer of the High Court of Chancery, to be filed, and the same shall thereafter be proceeded with according to the practice of that Court; and in case service shall be directed as aforesaid, the same shall be of such and the same force and effect, and such and the same proceedings may be had thereupon, as if service had been duly effected within the jurisdiction of the said Court of the said County Palatine. 10. The provisions in the said recited Act contained for enforcing decrees and orders made by the Court of Chancery of the said County Palatine, by making them decrees or orders of the High Court of Chancery, shall extend and apply to decrees or orders made by the Court of Appeal. ters: but whereas doubts are entertained as to the extent of the jurisdiction of the said Court of Chancery of the said County Palatine with respect to trust estates within the said County Palatine, so far as relates to the provisions of the said Trustee Act of 1850, subsequent to the 21st section, and to the provisions of the said Act of the 15 & 16 Vict. c. 55: be it enacted, that all the powers and authorities given by the said Trustee Act of 1850, and by the said Act of the 15 & 16 Vict. c. 55, to the Court of Chancery in England, and all the provisions therein contained, shall and may be exercised in like manner, and are hereby given and extended to the said Court of Chancery of the said County Palatine, with respect to all lands aud personal estate within the said County Palatine: provided always, that no person who is anywhere within the limits of the jurisdiction of the High Court of Chancery shall be deemed by the Court of Chancery of the said County Palatine to be an absent trustee or mortgagee within the meaning of the said Acts. 12. When under or by virtue of any Act of Parliament already made and passed or which may hereafter be made and passed power and jurisdiction are or shall be given to the High Court of Chancery to manage, dispose of, or deal with the property of infants or other persons under disability, or to manage, dispose of, or deal with property in the administration of assets, then and in every such case (unless in any Act the contrary be expressly enacted) it shall be lawful for the Court of Chancery of the said County Palatine, so far only as regards all persons and property within its jurisdiction, to exercise the like power and jurisdiction in the same manner and subject to the same restrictions in all respects as the said High Court of Chancery might exercise in the like matters. 11. And whereas by the 21st sect. of the Trustee Act, 1850, it was enacted, that as to any lands situated within the County Palatine of Lancaster it should be lawful for the Court of Chancery in the County Palatine of Lancaster to make a like order in the same cases as to any lands within the jurisdiction of the same Court as the Court of Chancery has under the provisions therein-before contained been enabled to make concerning any lands, and that every such order of the Court of Chancery in the County Palatine of Lancaster should, as to such lands, have the same effect as an order of the Court of Chancery: provided always, that no person who is anywhere within the limits of the jurisdiction of the High Court of Chancery should be deemed by such local Court to be an absent trustee or mortgagee within the meaning of that Act: and whereas by an Act of the 15 & 16 Vict. c. 55, the provisions of the Trustee Act, 1850, were in some respects amended, and further and other provisions made and whereas several provisions of the .said Trustee Act, 1850, subsequent to the 21st section, and the provisions of the said Act of the 15 & 16 Vict. c. 55, are applicable and ought to be applied to persons and property within the jurisdiction of the said Court of Chancery of the County Palatine of Lancaster: and whereas by the 11th section of the said Act of the 13 & 14 Vict. c. 43, it was enacted, that when, under and by virtue of any Act of Parliament made and passed, or which might thereafter be made and passed, or by any orders or regulations made in pursuance thereof, application is authorised or allowed to be made by petition or motion, or otherwise, to the High Court of Chancery, or any Judge of the said Court, and summary jurisdiction to be exericised thereon (unless in any Act of Parliament to be thereafter passed the contrary should be expressly enacted), it should be lawful for the Court of Chancery of the said County Palatine," so far only as regards all persons and property within its jurisdiction, to exercise the like summary jurisdiction, and in the same manner and subject to the same restrictions in all respects as the said High Court of Chancery or any 13. And whereas by the 12th section of the said Act of the 13 & 14 Vict. c. 43, it was enacted, that all monies payable in respect of lands situate within the said County Palatine, and which are authorised to be paid into or deposited in the Bank of England to the account of the accountant-general of the High Court of Chancery, under and by virtue of the Lands' Clauses' Consolidation Act, 1845, or any local or special Act passed or to be passed incorporating the provisions of the said last-mentioned Act, or otherwise authorising the taking or using of lands situate in the said County Palatine, and also that all monies and securities held by any party who might be sued in the Court of Chancery of the said County Palatine in respect thereof, and which, under and by virtue of an Act made and passed in the Par liament held in the 10 & 11 Vict., intituled An Act for better securing Trust Funds, and for the Relief of Trustees," might be in like manner paid or transferred into or deposited in the Bank of England to the account of the said accountant-general, might, from and after the passing of the said Act now in recital, be New Statutes effecting Alterations in the Law.--Nine Criminal Law Bills. 441 the said Court of Chancery of the said County Palatine. 15. Whenever it shall be necessary to cite or refer to the said first-recited Act or this Act, it shall be sufficient to cite or refer to the same respectively as the "Court of Chancery of Lancaster Act, 1850," and as the "Court of Chancery of Lancaster Act, 1854." NINE CRIMINAL LAW BILLS. REPORT OF THE SELECT COMMITTEE OF as follows: in like manner paid or transferred into or deposited in the Bank of England, to the joint account of the clerk of the Council of the Duchy of Lancaster and of the registrar and comptroller of the said County Palatine Court, in the matter in respect whereof such payment, transfer, or deposit should be made, and that the receipt of one of the cashiers of the said bank should be a full discharge to the person paying or transferring or depositing the same, and that such monies and securities, and all costs of application in respect thereof, should be dealt with by the said Court of Chancery of the County Palatine in the same manner as the same might be dealt with by the High Court of Chancery, or by the Lord High Chancellor, or any of the Judges of the said High Court, if THE Select Committee of the House of such monies or securities had been paid or Lords appointed to consider the Nine Criminal transferred into or deposited in the Bank of Law Bills, with the Letters of the Judges to the England to the credit of the accountant-gene- Lord Chancellor, reported on the 11th August, ral of that Court, and the lands in respect of which such payment, transfer, or deposit should be made might be dealt with in the "That the Committee have met, and consame manner as if it had been made in manner sidered the several Bills and other matters represcribed by the Lands' Clauses' Consolidation Act: and whereas since the passing of the said ferred to them, and have not thought it necesrecited Act the said County Palatine has been sary to enter into the discussion of the addivided into districts, and registrars and comp vantages and disadvantages of attempting to trollers have been appointed for such districts reduce the whole Criminal Law into one Code, respectively be it enacted, that any monies and securities to be paid or transferred or de- nor to enter into a detailed examination of the posited under the said recited provision may particular merits of the Bills now before them, be so paid or transferred into or deposited with because, after mature consideration, they are some one or other of the branches of the Bank of England within the said County Palatine, to the joint account of the clerk of the Council of the Duchy of Lancaster and the registrar and comptroller of the district within which such branch bank is so situate, and the receipt of "The Committee, however, are of opinion, the manager, or agent, or cashier of such branch bank shall be a full discharge to the that great advantage may be derived from the person paying or transferring or depositing the very important and elaborate reports of the same, and such payment, transfer, or deposit Criminal Law Commissioners, and from the shall have the same force and effect as Bills already prepared, and from the introducany payment, transfer, or deposit made under the said recited provision would have tion of others relating to as many of the rehad: provided always, that no moneys shall maining branches of the Criminal Law as are be so paid or deposited under or by virtue of not affected by the present Bills, in which the the Lands' Clauses' Consolidation Act, 1845, Criminal Law, as defined by statutory enactor any local or special Act as aforesaid, in case the party who would have been entitled to the ments, should be consolidated; and in such rents and profits of the lands in respect of Bills the Committee recommend that advanwhich such monies shall be payable, or his or tage should be taken of the valuable recom her guardian or committee in case of infancy mendations of the Criminal Law Commission or lunacy, shall at any time before such payers for the improvement and simplification of ment or deposit serve or cause to be served a of opinion that it is inexpedient at present to press forward any Digest, except that of Statute Law, as on every account the step first to be made. notice in writing at the office of the company the existing law, and that such further imtaking the lands, requesting them not to make provements as may appear necessary should the payment or deposit. also be added. 14. In all proceedings under and by virtue of this Act the said Court of Chancery of the "And the Committee therefore recommend, County Palatine and the Court of Appeal hereby that the present Bills should be revised, and constituted respectively shall have full jurisdic- others prepared, for the purpose of carrying into tion to deal with the costs thereof and occa- effect the above objects, whereby the whole sioned thereby, and all orders made by the Statute Law relating to Crime shall be comsaid Courts respectively, in pursuance of this Act, shall be subject to appeal in the same pletely consolidated, together with such amend manner in all respects as any other orders of ments and additions as may be considered 442 Points in Equity Practice-Medico-Legal Evidence. expedient, and from which the Committee ing matters of science upon which the Judge, are satisfied great advantage may be ex-jury, and counsel are incompetent, from pected. actual want of knowledge, to form a sound "And the Committee further think that it and accurate judgment. will be advisable, after such Bills may have "With a view to their elucidation, men of been passed, to take into consideration the re-repute, termed in France experts, and in Italy port of the Commissioners on Procedure, and so to revise and amend the same, that the whole course of Criminal Procedure may be embodied in one or more Statutes." POINTS IN EQUITY PRACTICE. periti, who have made the matter at issue a special object of study, are called upon for their testimony, and their evidence is generally considered as final and conclusive. In a case in which it is necessary, in order to satisfy the ends of justice, to submit certain portions of food, or the contents of the stomach, to careful chemical analysis, in order to ascertain, by the aid of delicate tests, whether a person had come to his death by fair means, professional INCUMBRANCER PENDENTE LITE, PARTY TO gentlemen who have a reputation for having SUIT TO RECOVER FUND. Held, that an incumbrancer pendente lite is not an indispensable party to a suit to recover the fund. Macleod v. Annesley, 16 Beav. 600. EXPARTE ORDER TO AMEND PENDING When a demurrer has been overruled, and an appeal from the order is pending, held, that an exparte order to amend is irregular. Where a plaintiff had obtained such an order, after notice that the appeal had been set down, it was discharged with costs, and the amendments were expunged. Ainslie v. Sims, 17 Beav. 174. MEDICO-LEGAL EVIDENCE. paid particular attention to such investigations, and who are practical and experienced chemists and toxicologists, are called upon for their opinion, and upon the result of their investiga tions the life or death of a fellow-creature often depends. No reasonable man disputes the value of such testimony. A similar course is pursued when any difficult and complicated question arises connected with navigation, mechanics, or civil engineering. The most able men of the day are summoned to solve knotty points, and to settle questions of disputed science, which sagacious and experienced minds are only able satisfactorily to determine. For what objects are matters of great difficulty and doubt submitted to the adjudication of the Judges assembled in the highest Courts in the kingdom, if it were not to obtain from men, presumed by their elevated station to possess the maximum amount of legal lore, a safe and satisfactory opinion?" Dr. Winslow complains, that medical witnesses are often treated unjustly and harshly during their examination by counsel. SCARCELY any Assizes or Sittings pass without the trial of some case in which the testimony of medical men is required, re- which he is subpoenaed a lucid statement of "In attempting to give the Court before garding the cause of death, or the state of his opinion, based upon actual experience, mind of the party before the Court; and long-continued observation, reflection, and pain such cases the evidence is often con- tient study, the views thus expounded are flicting, and it is difficult for the Court and too often considered either as the offspring of jury to arrive at the right conclusion. In a false philosophy-a mawkish sensibility-a the Journal of Psychological Medicine and distorted science-the affectation of a learned Mental Pathology for July last, we find an sordid result of the paltry honorarium awarded and metaphysical subtlety-or, alas! as the Medico-legal Evidence in to him for the expression of his professional cases of Insanity," delivered before the opinion! The medical witness has to encounMedical Society of London, by Dr. Forbes ter the sarcastic doubts, the special pleading, Winslow, from which we propose to make the suspicious inuendoes, the legal finesse, of some extracts, which we trust will be in- the acute and accomplished advocate, always teresting to our readers. on the alert to perplex and confound him; he Dr. Winslow, in treating of the circum- has also arrayed against him the unbending circum-dicta of the Judge, and inexperience of the stances in which a medical witness appears jury, easily misled by the plausible appeals, to give evidence, observes, that questions the persuasive eloquence, and ad captandum of great perplexity often arise in the course arguments of the counsel, who, occasionally, of important judicial investigations, involv- in the discharge of his duty as an advocate, able lecture on 66 Medico-Legal Evidence. considers himself justified, whilst defending the interests of his client, to combat truth by sophistry-to dumb-found, confuse, and entrap the witness-dazzle and bewilder the Judge-hoodwink the jury, and, by a combination of qualities which the accomplished nisi prius advocate and practised disputant is so competent to call into successful operation, make the 'worse appear the better reason."" The lecturer admits, however, in justice to the Legal Profession, that occasionally the evidence of medical men is extremely unsatisfactory. He says, 443 escape punishment, as the result of his opinion if, in consequence of the medical evidence, his life be saved-I do not see by what right he can be held up to public odium and censure. The witness is not to be considered responsible for the operation of the laws (be they good or bad), neither is he accountable for the escape of the prisoner, if acquitted on the plea of insanity, and thereby exempted from the extreme penalty awarded for his crime. The witness is sworn to state the truth according to his honest convictions, regardless of the legal results of his evidence." The well-known Bainbrigge Will-Case, which was tried at the Stafford Assizes, is thus noticed by the lecturer :— "This remarkable and celebrated trial was "It is too often the practice to place in the witness-box professional men wholly incompetent to give testimony in cases of disputed insanity;-incompetent, from ignorance of the meaning of the ordinary medical terms used to one of the most important disputed will cases designate the recognised forms of diseased which has been made the subject of litigation, mind, as well as from inexperience in the prein this country, for a considerable period; cise bearing of medico-legal evidence. I have, upon its issue depended property to a vast in my time, seen men manifesting great self- amount; the investigation of the facts of the assurance and unbounded confidence in their case occupied more than a week; and some of own knowledge and sagacity, step flippantly guished common and equity lawyers were rethe most illustrious advocates and distinand eagerly into the witness-box, only to re-tained as counsel. The question at issue rested tire sadly mortified. It has been my duty to see some melancholy exhibitions of painful entirely upon the sanity or insanity of the tesprofessional humiliation, and must admit, that tator. Evidence of a very conflicting character in most cases they have arisen from an actual was adduced; the facts in relation to the alwant of information on the subjects upon which leged insanity were strangely contradictory; the witnesses have been examined! If I were and it was therefore deemed necessary to bring not indisposed to descend to particulars, I could specially from London, three physicians, who refer to several recent trials for illustrations of were, I presume, considered to be men of exwhat I have said. It is too commonly ima-perience, sagacity, and science, to hear the gined that a knowledge of insanity comes by best of their judgment, basing their conclusions sworn testimony; and, as experts, to state, to the, intuition, and that, without special and particular investigations of this class of affections, any well-informed and regularly educated medical man is qualified to give evidence in courts of justice upon these matters. This is a sad mistake; but, unfortunately, the discovery is rarely made until the medical man has recorded his testimony." The imperative duty of witnesses on these occasions is then pointed out by Dr. Winslow : "When a medical man" (he says) "is summoned to record his testimony in a Court of Law, upon a case in which it is important to ascertain the degree of sanity that existed at any stated period, he gives his opinion to the best of his knowledge and ability, upon an abstract point, without any reference to ulterior results. He has not to regard the legal consequences of his evidence; it is not for the witness to consider whether life is to be prolonged to an indefinite period, or whether a fellow-being shall be immediately launched into eternity. To the questions-'Do you consider the party insane?-was he so, according to the best of your judgment, at such a period?' the medical gentleman experienced in the characteristics of insanity answers, negatively or affirmatively. If the accused party upon the evidence adduced in Court relating to when the will was executed, was of a healthy, the testator's condition of mind, whether he, sound, and disposing intellect. Can we conceive a more important and relevant question for the medical witnesses to decide, and one coming more legitimately and strictly within their jurisdiction ?1 |