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180 Review: Finlason's Common Lav Procedure Acts of 1852 and 1854. several enactments, will be useful to practi- plaintiff from the onus of proving the debt, and tioners in taking proceedings under the new himself undertaking to disprope it to their law. We have now before us the work of satisfaction. Mr. Finlason, whose previous labours in ex

“ Matters of debt and of mere account being pounding other Statutes entitle him to the thus summarily disposed of in such a manner favourable consideration of the Profession. means of delay, in other cases not of so press

that there was no refuge for dishonesty, no The Author observes in his Introduction, ing a character, and in which the questions that

must depend upon evidence, oral or written, " It is written that there is nothing new Common Law first held out every encourage

other than that of the parties themselves, the under the sun ; and the history of Common Law procedure illustrates the saying. All that ment to them to arrange the dispute without has ever been evil in it has arisen from an ob- resorting to litigation, and in arbitration aflivion of its ancient principles ; and every step of matters of fact and law, while fur questions

forded ample means for voluntary adjudication in its improvement is a recurrence to the past, of law a yet greater facility was afforded for every real reform is a restoration. This may prompt and inexpensive determination; bedied its old records ; but the writer finds in cause, by reason of the state of the Profession, them the proof that the paradox is truth.

in those more simple times, when the client “Nothing could be more practical, more and the counsel—who less practised in a Pro

had unrestricted intercourse with his counsel, simple, or more just than ancient Common fession than exercised a vocation-had more Law Procedure; in substance it contained every familiar intercourse with the Bench, the par. element that could adapt it to all the exigencies, ties, by their advocates, could come down to or satisfy all the requisitions, even of this com- Court without ceremony, and put a case' to mercial age. At the very outset, as respects the Judges, who would 'debate and decide it its process,' a distinction was drawn which all without difficulty.” our enlightenment has only just arrived at, after generations of complacent 'progress?

From this primitive state of pleading and the distinction between actions relating to practice, Mr. Finlason proceeds to describe matters of account, or mere money demands, the alterations or improvements in the Com. and actions relating to realty. In the former, mon Law Courts down to the "reforms," the process was by attachment and bail

, or by which took place in 1833, under the Comsummons and arrest; and in the latter by the less peremptory process of summons and dis- mon Law Amendment Act of Wm. 4, the tress. Nor was this all; the distinction per- consequences of which are thus described : vaded the whole course of procedure. Where “ The effect of the new system was an enorthe claim was matter of account it was at once mous multiplication of pleas, and a consequent compulsorily referred to auditors (assigned by increase of expense and complication of nisi the Court), whose jurisdiction was summary, prius records, which embarrassed the trial of whose investigations were conducted by the causes and led to continual failures of justice, examination of the parties upon oath, and either by special demarrers for faults, of form, whose adjudications had all the effect of the or by defect of evidence on points not the real judgments of the Court. And if the claim, matter in controversy between the parties. although not matter of mere account, was one There was another and perhaps a greater evil of simple debt, which must involve privity of still: that, as there was no power of comcontract, and must rest on credit, and depend pelling parties to submit matters of debt in most instances on the personal communica- or account to speedy adjudication by arbi, tions of the parties, there was a proceeding tration, one party in such cases was forced called 'wager of law,' in which both the parties to bring an action as his only available se were examined summarily on oath, and to medy; and yet, when it came down to trial, which if the defendant resorted, while he could the Judge found in numerous cases that by oath purge himself of the claim, that did it was practically impossible to try such matnot suffice unless twelve other men of good ters before a jury, and then at the last hour character attested upon oath to his credibility; both parties, under pressure of expostulaand on the other hand, by resorting to this tion from the Bench and persuasion from the course, he precluded himself from putting his Bar, agreed to a reference which might have opponent to the proof of his claim by pleading taken place perbaps 12 months before, and a denial of it; so that practically it came to must have taken place had it not been for the this, that the parties themselves were examin- desire of one party to delay for which bota ed upon oath without delay before a jury of parties had to pay the penalty in a useless intwelve persons, the party sued relieving the crease of expense.”

The following is Mr. Finlason's summary 1 «Mirror of Justice, c. 2, s. 6. * “ Bro. Abr, Account. In matters of ac

of the improvements effected by the two count the defendant could not plead a denial 3 “14 Edw. III. 3; 8 Hen. IV. 29 ; 13 of his liability, which was solely for the audi- Hen. VII. 4; Keil. 39; 13 Hen. VI.; Keil. tors. 3 Edw. III., 53.

41."

Review : Finlason's Common Law Procedure Acts of 1852 and 1854. 181 Common Law Procedure Acts of 1852 and and that he is to be arbitrator, not merely 1854.

auditor. Arbitrators may state special cases

for the opinion of the Court, and Judges may “The Common Law Procedure Act of direct special cases on matters of law or issues 1852 lays down its great principle, so far as on matters of fact, without waiting for the conactions at law are concerned, by declaring that sent of the parties, and with such consent the it shall be sufficient if any pleading set forth Judge may try questions of fact. The jurissufficient ground of action or defence, and that diction by arbitration is extended by enacting no pleading shall be deemed insufficient for that every agreement or submission to arbitraany objection heretofore ground of special de- tion may be made a rule of Court by either murrer; so that all the formalities recognised party (and so irreversible and enforceable) unby the Acts of Elizabeth and Anne are swept less it contain an express stipulation that it away by the Act of Victoria, which re-affirmos shall not be. the principle asserted under Edward III., that

“ Among various improvements in our sysby the forms of law no man shall be prejudiced, tem of trial, the most important are a proso that the substance of the action be shown ; vision for stamping documents, so as to preand, breaking through all the sophistries and vent parties being defeated by stamp objections, subtleties of Blackstone, recurs to the healthier and a provision for a tribunal of appeal on doctrines of Bracton. As arising out of this motions for new trials. There are some novel elementary principle, another principle is laid and most important provisions with respect to down, that general pleading is sufficient until the obtaining of evidence, power being given the point in dispute is arrived at... And, in to Judges to direct oral examinations of witorder to carry it out, the largest possible power nesses or parties before trial, or to permit the of amendment is allowed so far as necessary to parties to a suit to examine each other on writdetermine in the existing suit the real matter ten interrogatories before trial, so as to obtain in controversy between the parties, without any all the advantages of a bill of discovery; and limit or condition except such as the obvious power is also given to the Judges to allow in. justice of the particular case may dictate. And spection of any property the inspection of where this extensive power cannot be applied which may be material to the proper determi. provision is made for preventing, even after nation of the matter in dispute. A procedure verdict, a miscarriage of justice through mis- is provided for attaching the debts of a judgapprehension or mistake. Such were the salu- ment debtor after the manner of the custom tary provisions of the Act of 1852 as respects of foreign attachment in the city of London. pleading. But it was not restricted to pleading. A plaintiff may, by writ of mandamus, call on Provision was made for trial of questions with the Courts to compel the defendant to fulfil out pleading questions of fact by issue, ques- any duty in the fulfilment of which the plaintiff tions of law by special case ; it being also pro- is personally interested, thus rendering, an acvided that on the finding judgment might be tion at law, as of old, a means of enforcing the entered for payment of any sum of money, the performance of any duty, not merely of obtainthe right to which the finding resolved. And, ing pecuniary compensation for its breach. for the first time in the history of English law, And, on the other hand, a plaintiff may likepower was given to sue either British subjects wise in any action have an injunction against or foreigners residing out of the jurisdiction of the repetition of the injury for which he sues, the Courts of this country. Nor was this all ; thus restoring to the Courts of Law that imsome attempt was made towards the attain- portant department of their jurisdiction which ment, or rather the restoration of speedy adju- had been usurped by Courts of Equity. And, dication in matters of mere debt or money de- finally, a great step is made towards that fusion mand, partly by providing that by means of of law and equity which is the grand consumspecial indorsement on the writ judgment mation of legal reformation by providing for might be signed thereupon, and partly by fa- the admission of equitable defences in Court cilitating the procedure on judgment by default.

“Such was the ample scope of the Common It is due to Mr. Finlason to quote from Law Procedure Act of 1852. But large as it his Preface the object he has had in view was it was far from doing all that was to be in presenting his work to the consideration done ; the same Commissioners recommended of the Profession. in a second report still further improvements, which, with the warmest judicial and legislative “ Knowing that he would have able and approval, were soon carried out; and this year powerful rivals, the Editor has been anxious to a second Common Law Procedure Act supplied compensate by industry for any deficiency in some defects of the first, and introduced some ability, and has especially laboured to render still more important improvements in our sys- his edition the most complete. tem of civil judicature. Of these the first and For this purpose it comprises, not only perhaps the most important is a practical re- both the late Common Law Procedure Acts, vival of the ancient procedure in matters of but also those of William 4, with which they account—a compulsory reference to an arbitra- must be read, as in pari materiâ ; and likewise tor-the only difference being that he is ap- the recent Acts as to evidence, which are so pointed by the parties instead of by the Court, closely connected with them; and also, in the

He says,

182 Review : Finlason's Common Law Procedure. -Law of Attorneys and Solicitors. notes, all the cases which either have been al The agreement recited that the defendant ready expressly decided on the first Common was justly and truly indebted to the plainLaw Procedure Act, or tend to elucidate the tiff in the sum of 2001. for business done provisions of the second. Above all, the edition has been delayed until it could include the and that it had been expressly agreed that

as his solicitor, as the defendant admitted, New Rules under the latter Act.

It is believed that the reader now has in no bill of costs should be required by the the present edition, all the Statutes, rules, and defendant, but that the said sum should be cases connected with civil common law proce- fixed to be in lieu and full discharge of all dure, and that it will be equally useful for the bills of costs and other claims and demands student and the practitioner, and answer all of the plaintiff; and also recited the depurposes of a practical manual, whether at nisi livery up of the papers. It then witnessed prius or in banco. “The first Common Law Procedure Act of defendant agreed when and so soon as the

that in consideration of the premises the 1852 has now been nearly two years in operation, and the decisions upon it are the best Court of Chancery should declare that he testimonies to its utility. As to the Act of was next of kin and as such entitled to the 1854, the Editor believes the opinion of the sums of money, &c., in trust in the above Profession is very favourable ; and as to its cause, the defendant would pay the plaintiff composition, the Jurist most truly has observed the sum of 2001. with interest thereon at 5 that it is deserving of high honour on ac

per cent. from the date of the agreement. count of its brevity and condensation ; We The plaintiff covenanted, until the defend. changes was ever expressed in such few words. ant should be so declared next of kin, not And, taken as a whole, we regard it as a mo

to sue.

In 1849, the right of the defendDEL ACT.'

ant's wife was established and the moneys “The Editor may be permitted to state, by were paid over to him in 1853, whereupon way of explanation, that in annotating an untried the plaintiff filed this bill to enforce the Act, the notes must often be in a great degree specific performance of the agreement and rather suggestive than decisive ; but he has en- payment of the money thereby secured. deavoured to open up any source of informa- The defendant denied its validity, but of. tion likely to be useful for the purpose of exi fered to pay what should be found due on position or illustration, whether in the way principle or analogy."

delivery and taxation of the plaintiff's bill

of costs. The notes to the various new enactments are very full and valuable.

The Master of the Rolls said :

“Notwithstanding some difficulty that may LAW OF ATTORNEYS AND

arise from the dicta in some of the cases SOLICITORS.

referred to on this subject, I am of opinion that

the settlement of a solicitor's bill by the client AGREEMENT FOR DELIVERY UP OF PAPERS turbed by this Court, where it has been entered

for a fixed sum is valid, and will not be dis

into fairly and with proper knowledge on both It appeared that in April, 1836, the desides. Lord Langdale so decided in the case fendant employed the plaintiff as his so

of In re Whitcombe, 8 Beav. 140; and also held, licitor in respect of a claim in right of his in Re Eyre, 10 Beav, 569, that an agreement wife as next of kin in a cause of Turner v. remunerated, would be properly taken into

as to the mode by which a solicitor was to be Maule, but that in the December following consideration by the taxing master, and I have the plaintiff refused to continue to act un- myself acted on this principle in the case of In less supplied with funds. Nothing further re Taylor, which I lately decided.' was done in the matter and no bill of costs “The case of Exparte Bass, in re Ste. was delivered, but it was not denied some- phen, 2 Phill. 562, does not appear to me to thing was due from the defendant to the oppose this view of the case. In that case, a plaintiff.

In December, 1844, upon the large sum of money had been paid to solicitors, plaintiff's changing his offices and employ- and under an agreement that this should finally

for the purpose of obtaining papers from them, ing the defendant to remove his papers, the settle all matters between them. Lord Cottexdefendant's papers were discovered and he ham ordered the bill to be delivered and taxed; demanded them, as he intended to prose- but he did so, not, as it appears to me, on the cute his claim. The plaintiff accordingly, ground that such an agreement could not, on the following day, produced an agree under any circumstances, be entered into be ment, stating he would deliver up the tween a solicitor and his client, but on the papers upon its being signed, and the de- ground that the agreement in question was, in fendant executed it, after he had read it fact

, extorted by pressure. The Lord Chanand it had been fully explained to him.

| Feb. 8, 1854.

ON PAYMENT OF FIXED SUM.

Law of Attorneys and Solicitors.

183 cellor seems to have considered that the agree to consider the matter, he believed, and stated ment in that case could not be put higher than his belief at the time, that the bill of costs could payment of the bill; and that if payment had not amount to so large a sum. But admitting been extorted by such pressure, the client who such to be the case, provided the dispropor. had paid the bíll, under such circumstances, tion was not so great as to amount to fraud, I would have been entitled to tax it. In fact, am not prepared to say that the amount really in that case, the very existence of the company due would not be a sufficient consideration to seems to have depended on obtaining posses- support an agreement for the payment of a sion of the documents in the custody of the larger sum of money, depending on a contin. solicitors, and submitting to their terms. gency over which the solicitor had no control,

“But I see nothing in that case to counte- which possibly might never arise, or if it ever pance the opinion that, provided the transaction did arise, would probably be at a distant period be open and fair and without pressure, a so- of time. It is next to be observed, that the delicitor and his client may not agree that a fixed fendant has had the full benefit of the agreesum shall be paid to the solicitor, in liquidation ment; he obtained the papers, he prosecuted of his bill of costs, even though that bill of his claim, and he succeeded. costs has not been delivered, and even though “ It is true that there is frequently a great the object of the arrangement is to enable the difference between directing an instrument solicitor to escape the trouble of making out to be delivered up and compelling the parties his bill.

to make it effectual; but in the view I take of “I am also of opinion, that the circumstance this case, that difference does not exist here. that the money is to be paid at a future time, If I am right in the construction which I, sitdoes not alter the case, or make it, on that ac- ting in Equity, put on this agreement, the plaincount alone, more invalid, than if a sum of tiff could recover upon it at law. If he cannot, money had been paid at the time. I adopt the it must be owing to the use of an accidental observation of Lord Langdale in the case of expression in it, which, confessedly, was not Whitcombe, 8 Beav. 144 :- An agreement like intended by either party, at the time of its exethis between a solicitor and client, for taking a cution. I think, therefore, that I must confixed sum in satisfaction for all demands for sider how this case would have stood, if an accosts, is an agreement which may be perfectly tion had been brought on this agreement, and good; but this Court, for the protection of the defendant had instituted a suit to set it parties, looks at every transaction of this kind aside, and had applied for an injunction to rewith great suspicion.'

strain the prosecution of the action. If that “Looking at this transaction, therefore, with case were before me, I should have to consider, great suspicion, I proceed to consider whether whether I could restore the parties to it to the I ought to act upon and enforce it. The first position in which they were when it was entered question to be considered is, was it obtained into. This is manifestly impossible; as I have by pressure on the client? The solicitor re- already observed, the defendant has had the fused to give up the papers unless this agree- full benefit of it

, and cannot restore to the ment was signed; he had a perfect right to plaintiff what he obtained from him. The keep the papers until his bill was paid ; and lapse of time is another circumstance in favour on the other hand, the client, the defendant, of the plaintiff. It is true, that the evidence might at any time have taxed the plaintiff's respecting the plaintiff's books and the record bill and have obtained possession of the papers, kept of the defendant's services is so unsatisif he had been in a position to pay the amount factory, that I am induced to believe, that the found due on taxation. I am of opinion, in plaintiff would have found it extremely difficult this case, that the defendant has not made out to have made out his bill of costs in December, such a case of pressure. That he required the 1844: still this difficulty must be increased papers is certain, and that he could not prose- and made totally insuperable after the lapse cute his claim without them is probable; and of nine years, and some weight is to be given he certainly could not, without a considerable to this consideration, although not to the exoutlay, obtain new ones, if he failed in obtain- tent that would be proper in an ordinary case, ing these. But I do not find that the want of where the custodỹ of previously existing them was urgent, or that the defendant would vouchers might reasonably have been neglected have been prejudiced by the delay in obtaining by a person who considered the matter to be them, even though that delay should have settled. amounted to several weeks or even months. “ In addition to these considerations, I am The success of his claim did not depend on not satisfied that the defendant has not himself his obtaining immediate possession of them, as had the benefit of this claim of the plaintiff, in was the case in the matter of Stephens. That the sums allowed him for expenses by his cois a material difference, not to attend to which claimants, if I may use such an expression. would be, in many cases, to defeat the value On this point, however, the evidence is too unof the solicitor's lien. It is true that the de. certain to enable me to come to any conclusion fendant had no professional assistance in this without further inquiry: these, however, are matter, but I do not find that he was ignorant minor matters. of what he was about. He was conversant "I am of opinion that the plaintiff is entitled with legal matters, he understood the agree to the benefit of this agreement, on the grounds ment fully; he did not apply for further time I have already stated, and which may be shortly

[graphic]

184 Law of Costs.-Notes on Recent Statutes.-Copyhold Enfranchisement. recapttulated to be these :- that it does not ap- 101, to bring on the cause at the ensuing pear to me that it was obtained by fraud or by assizes, the commission day of which was undue pressure; that the defendant has had

March 18. the full benefit of it; that I cannot restore the parties to the position they were in, if I were

On a rule baving been obtained to expunge to set it aside, or to refuse to act upon it, and a suggestion entered under the above section that if I left the plaintiff to his remedy at law, that the plaintiff had failed to proceed to trial I might possibly enable the defendant to suc though duly required to do so, on the ground ceed on a technical point, in the wording of the agreement, which confessedly was not in- that 20 days' notice before the time for giving tended by either party at the time of its execu- notice of trial should have been given. Lord tion, and which does not appear to me to be Campbell, C.J., in discharging the rule said, its true construction.

“After service of 20 days' notice to the plain“ The result is, that in my opinion, the plain- tiff to bring the issue to trial at the sittings or tiff is entitled to a decree for specific performance of the agreement, and payment of the assizes next after the expiration of the notice, money secured by it. No costs.” Stedman the plaintiff is to be in the same position as he v. Collett, 17 Beav. 608.

would have been formerly had he given a per.

emptory undertaking to try at that sitting or LAW OF COSTS.

assizes.” Judkins v. Atherton, 3 Ellis & B.

987. OF INDICTMENT FOR NON-REPAIR OF HIGH

WAY ON REMOVAL BY PROSECUTOR, COPYHOLD ENFRANCHISEMENT. The prosecutor had removed by certiorari into the Court of Queen's Bench an indict

MANOR OF KENNINGTON. ment ordered by justices, under the 5 & 6 of a tract just published, containing transcripts

SIR,- I have been favoured with the perusal Wm. 4, c. 50, s. 95, against the inhabitants of of the various petitions to the Crown, the Lea parish for non-repair of a highway. The gislature, and Prince Albert, the Chief Steward, case was tried on the nisi prius side at the praying for the enfranchisement of Copyholds assizes, when a verdict was given for the

within the manor. A strong and unanswerable

case appears to be made out. Crown, and Wightman, J., indorsed on the

The first petition to her Majesty, presented record an order that the costs of the prosecu- in May, 1836, shows that the copyholders tion should be paid out of the rate made and offered voluntarily to relinquish their rights levied in the parish in pursuance of the above on Kennington Common, estimated at some Statute. A side bar rule was afterwards ob- receiving the inadequate and imperfect quid

fifteen-sixteenths of the entire common, on tained referring it to the coroner and attorney pro quo of an enfranchisement of their estates. of this Court to tax the costs.

It does not appear that any answer was given On a motion for a rule nisi to set aside the to this petition, except that disclosed in an Act Judge's order for costs and the side bar rule, the entire valuable common was vested in Com.

of the Legislature passed in 1852, by which held that the prosecutor was entitled to his missioners to constitute a park, freed and discosts, although the proviso in the section only charged from all rights of common and other referred to the removal by a defendant, and rights. Whereas when a similar measure lately that the order directing the costs to be paid passed in relation to Battersea, some 1,500l. out of “the rate made and levied ” in the tion of their rights.

was given to the persons interested in satisfacparish according to the Statute, was not for As it would be unreasonable to expect Parthat reason bad. Regina v. Inhabitants of liament to repeal the Kennington Common Eardisland, 3 Ellis & B. 960.

Act, the copyholders have at all events a fair claim to compensation on reasonable terms.

In the adjoining manor of Lambeth, belonging NOTES ON RECENT STATUTES. to the see of Canterbury, three and a half

years' purchase is taken, whereas in Kenninge COMMON LAW PROCEDURE ACT, 1852.-SUG- according to the rack-rents, although the

ton a compensation is outrageously demanded GESTION ON NOT PROCEEDING TO TRIAL. ground is let on building leases under the -NOTICE UNDER s. 101.

sanction and with the licence to demise of the It appeared that the plaintiff had given no- lord of the manor. I would particularly draw tice of trial for two successive assizes, but had the attention of your readers to the admirable not proceeded to trial at either, and the defend.

letter of “M. A.” in your Number of 29th

July last. ant accordingly, on February 21, 1854, gave Appended is a statement of the fine de him notice under the 15 & 16 Vict. c. 76, s. manded of Sir William Clayton, Bart, for the

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