« EelmineJätka »
Law of Attorneys and Solicitors.-Kingston-upon-Hull Sessions.
195 sonable, but that they were not costs which acts. Does not the necessity continue urgent? the petitioner was bound to pay upon the I have here a heavy calendar again before me ; transfer of the mortgage ; and if this was the and a letter which I received from the governor objection, it was clearly wrong, as the mort- of the gaol, shortly before I left London, in gage was to be transferred in trust for the pe- answer to inquiries of mine, as to the state of titioner. What pretence was there for taking the the gaol, ends with this melancholy and afflict.. deeds out of the hands of these solicitors, leaving sentence :ing, any costs which were due to them by the ** It is a lamentable fact, that the juveniles petitioner unpaid ?
under 17 years of age have increased to nearly "If it had been necessary to decide this case double the average number during the last five upon either of these points, I should have hesi- months! Indeed, there are two only 11 years of tated long before making an order for taxation, age?' but there is another point in the case, which ap- “ If no steps have been taken in the borough pears to me to be decisive against the petitioner. towards meeting the advance of the Legislature Special circumstances are always necessary to in the last session, I can but express deep confound an order for the taxation of a bill after cern, and earnestly echo the recently uttered payment, and it has been held, and in my language of Lord Brougham-the most illus. opinion most properly held, in all the cases, trious law reformer of his age, and ever foremost that whatever other special circumstances may in anything calculated to advance the higher be required to ground the order for taxation interests of society— I hope and trust," he after payment, there must at least be proof that says, 'that the war will not, among its other there are overcharges in the bill, whether evils, occasion obstruction in either countryamounting to fraud or not is not material to France or England—to any of those great plans the present case. Now the allegation of this of benevolence- let me rather say, beneficence.' petition (and the affidavits in support of the He was writing on the subject of reformatory petition follow the allegation) is simply this, that schools. My excellent friend the Recorder of the items and charges which are complained of London, in his last charge to the grand jury, are not such as the petitioner was bound to took occasion to express regrets similar to mine pay upon the transfer of the mortgage, not on this occasion, that the great county of Midthat the business to which the items refer was dlesex had not come forward, as I am now imnot done, or that if done, the charges for it were ploring you to come forward, to arrest the foul unreasonable ; and, so far from there being torrent of juvenile crime; and at the late Winter any proof of these essential circumstances, Assize for this county, I am assured by those there is evidence, in opposition to the petition, who were present, Mr. Baron Alderson dethat if a detailed bill had been made out, the livered an eloquent, a most impressive and charges would have exceeded the amount of awakening charge to the grand jury, on the the item particularly complained of.
all important topic which I am now urging “In this state of circumstances, I think it was again upon your attention. I believe that every the clear duty of the Court to refuse the order gentleman whom I am now addressing, is for taxation, and that this petition of appeal listening, in an enlightened and considerate must therefore be dismissed.” In re Finch spirit, to what I am now too feebly saying, and and another, exparle Barton, 4 De Gex, M‘N. also feels that public duty is knocking loudly & G. 108.
at the door of his heart and conscience.
Gentlemen, in the course of my legal readings, a few days ago, I suddenly stumbled on a very
affecting and remarkable passage, which I had JUVENILE OFFENDERS. REFORMATORY never seen before, in one of the writings of SCHOOLS.—THE RECORDER'S CHARGE. him whom we lawyers call our great master,
Lord Coke. Writing two centuries ago, he On Thursday the 28th December, the concluded his last great ‘Institute,' with the usual forms of the Christmas Quarter Ses- words, 'Blessed be the amending hand !' which sions having been gone through,
he addressed to 'the wise-hearted and expert Mr. Warren, Q. C., the Recorder of the builders of the laws, to amend both the method Borough, charged the Grand Jury as fol- or uniformity of them, and the structure itself, lows :
wherein they shall find either want of windows,
or sufficient lights, or other deficiencies in the “Gentlemen of the Grand Jury,-Ever since architecture whatsoever.' But the passage to I last sat here, I have been longing to see in which I more particularly refer, occurs in the your weekly organs of intelligence an an- epilogue to his Third Institute;' and it does nouncement that a beginning had been made eternal honour to the memory of that mighty in good earnest-one worthy of this popular lawyer. and important borough-to establish reforma
“Justice,' he says, 'is justice severely tory schools for juvenile criminals. But I have looked in vain. Nevertheless, I believe that punishing, and justice truly preventing. True there is a noble Christian feeling here on the it is, that we have found by woful experience, subject-a true and high philanthropy, not that it is not frequent and often punishment evaporating in words, but manifesting it by that doth prevent like offence! Those offences
Kingston-upon-Hull Sessions—The Recorder's Charge. are often committed, that are often punished:
“And now let us hear a commentary on this for the frequency of the punishment makes it touching passage of old Lord Coke, by a pious
and humane chaplain of 1854—the chaplain of so familiar, as it is not feared. For example:
our gaol, in his report to the magistrates this what a lamentable case it is to see so many day Christian men and women strangled on that “. It is painful, again, to mention the great cursed tree of the gallows; inasmuch as, if in a number of juveniles, that from month to month large field, a man might see together all the
are committed to prison. Since the 1st Janu
ary last, the number has been 133, of whom Christians that but in one year, throughout 37 have been committed since my last report. England, came to that untimely and ignomini. The greater part of these youths come to me ous death-if there were any sparks of grace,
on the Sunday morning for an hour before or charity in him, it would make his heart to religious instruction. About a month ago I
chapel time, to read the Scriptures and receive bleed for pity and compassion! But here I had 23 on Sunday morning for this purpose ; leave to divines, to instruct the inward man : and, from inquiry, I found that only eight of who, being well instructed, the outward man them had not been in gaol before ; seven had will be the easier reformed.
been in once, one three times, one four times,
and one 16 times. Seven of them were not « « This preventing justice consisteth in three able to read, and knew little more than the things :- First, in the good education of youth, Lord's Prayer, and some of them could not reand that both by good instruction of them in peat even that correctly. Many of those who the grounds of the true religion of Almighty to read and write, and their attendance at a
have been to schools do not keep up the ability God, and by learning them knowledge of trade, place of worship on a Sunday is a thing of rare in their tender years, so as there should not be occurrence. They thus lose their knowledge an idle person, or a beggar, but that every child, of religious phraseology, as well as of religion male or female, whose parents are poor, might, itself
, and are easily led to think that the knowat the age of seven years, earn their own living: the Bible, is not necessary to their present or
ledge of the commands of God, as contained in -and this, for the time to come, would un- future welfare ; and to this is, I think, to be doubtedly, by preventing justice, avoid idleness traced, in a great measure, their present reckin all (one of the foul and fatal channels that less conduct.' lead into the very Dead Sea)' and by honest mournful but awakening commentary on Lord
" This, I repeat, is your worthy chaplain's trades, cause them to become good members Coke. in the commonwealth. Secondly, preventing “Gentlemen, I venture to throw out for the justice consisteth in the execution of good laws. consideration of the authorities of this borough, True it is there be good laws already to punish they have not admirable facilities and oppor
and of all interested in its welfare, whether idleness, but none of sufficient force or effect tunities for establishing a maritime school, for to set youth, or the idle, on work. Thirdly, the hitherto neglected classes, such as I believe that forasmuch as many do offend in the exists in Germany, if not also elsewhere on the hope of pardon, that pardon be very rarely tion is attended with the very best effects. At
continent. There, I believe, such an institugranted.
a place 20 or 30 miles from the sea, they have «But the consideration of this preventing an establishment for teaching poor boys, chiefly justice were worthy of the wisdom of a Parlia- by means of a great model of a ship (as in the ment; and in the meantime, expert and wise Royal Naval School at Greenwich), the ele
mentary and practical duties of seamenship, as men to make preparation for the same. Blessed well as a little other useful knowledge; so that shall he be that layeth the first stone of this when old enough to go to sea, they are suffibuilding ; more blessed that proceeds in it: ciently trained and competent to undertake most of all that finisheth it to the glory of God regular ship duty, and escape being cabin-boys. and the honour of our king and nation.'
Now, if this humane and wise system can be
80 successfully used so far inland, wbat are not “Gentlemen, these are grains of gold—the your facilities? How easy it would be to make pure ore of philanthropy-dug out of the old a beginning here, and gradually excite an esprit ragged black letter, and I commend them to your de corps and emulation among the boys, which reflections. The first stone of the building has would soon reach their parents and friends ; been laid in Parliament; let us now, in Lord and how delightful to the feelings of the gentry Coke's language, uttered 200 years ago, proceed of Hull to find the maritime school increasing in it, and finish it, to the glory of God and the in numbers as the cells of the prison become honour of our Queen and nation. Let it not proportionately untenanted! What facilities be recorded that the Parliament relied on our exist for training hardy young sailors, in your voluntary coroperation in vain, and were at very presence, to handle ropes and climb the length obliged to have recourse to compulsory rigging, instead of picking oakum and treading action
the dreary and degrading treadmill! Why not Kingston-upon-Hull Sessions—The Recorder's Charge.
197 make a reformatory beginning here? It would I be done must, however, be left to the discrebe popular, I do believe, or the humbler classes tion and taste of the counsel themselves. here have not that kind and humane feeling for which at present I do heartily give them credit. “Gentlemen, both the criminal and civil It would be an act which the country at large business of this borough is much increasing, would applaud, as soon as they heard of it; and I am, and always have been, delighted to and say, that Hull has set a noble example to do everything in my power to despatch both her sister ports in Great Britain! Let Hull as quickly, but also as satisfactorily, as poshave that honour.
sible. My distinguised predecessor here, Mr.
Justice Cresswell, was appointed recorder in Gentlemen, there is another subject to 1831. The population was then 53,744. In which I must briefly refer, in connexion with the year 1833, the average number of criminal something which has occurred here since the cases at each sessions was 29, with three aplast session, and relating to the adıninistration peals. In the year 1832, the civil business of justice here. I was deeply concerned to be consisted of four cases for trial, and two writs informed that one or two gentlemen have ex- of inquiry, in the whole year. pressed anxiety that criminal cases here should “Now, I was appointed in 1851; and then be disposed of a great deal more rapidly than I the population was increased by upwards of think is consistent with the due administration 30,000—that is, it was, 84,690. The average of justice. If I am correctly informed, some number of criminal cases for last year, each one spoke with admiration of having seen a sessions, was 47, with one appeal; and in the man tried, convicted, and sentenced to tran- same year there were 13 civil causes tried, and sportation, all in 10 minutes !' and another one writ of inquiry. Thus you see, gentlemen, said the Recorder could prevent the sessions that as the population has greatly increased, being lengthened, by keeping counsel to the so has the criminal and civil business of the point and getting through a case in three sessions; and, moreover, many of each class minutes.'
of cases are of difficulty and importance, with “Gentlemen, when I took my seat first many witnesses, and require that attention in this chair, I stated, quoting language with which I am resolved they shall alwasy have, as which I would hope we are all familiar, that far as I am concerned. I would uniformly strive 'truly and indifferently to minister justice, to the punishment of “I have yet, gentlemen, one other matter to wiekedness and vice, and to the maintenance mention to you—that in order to obviate as of true religion and virtue.' This cannot be much as possible the inconvenience and loss done but with gravity, circumspection, and de- of time of which the venire jurymen have of liberation ; and all I shall think fit to say here late so much, and I doubt not justly, comon this subject is, that if you will go to your plained, I intend for the future to appoint a prison, when these sessions are over, I do not certain day, before which they need not atthink you will find a prisoner there who will tend, and on and after which they may attend not freely own that he or she has been fairly and despatch consecutively whatever business and patiently tried. Some of those with whom there may be for them. Whether this fixed I have been forced to deal most severely have day shall be for the future immediately before said as much to myself often, when afterwards or after the sessions, I have not yet detervisiting them in gaol, and to others, who can mined. The Christmas sessions are rather testify it; and I can conscientiously say that exceptional, as far as regards myself, and no man, woman, or child—alas that I should some of the gentlemen at this Bar who also have to say child-ever stands at that Bar whom attend the Beverley sessions. Desiring to acit is not my humble endeavour to try as fairly, commodate them as far as I deemed fair and and look into his case as thoroughly, as I would reasonable, I have named Wednesday, the 3rd desire to be done in my own case as if, un- of January, for the sitting of the Venire fortunately, our positions were reversed. What Court, which will admit of the members of the irreparable injustice may be done in the three Bar attending on the Tuesday at Beverley, on minutes in which it is imagined a person may which day the greater portion of the business be tried, convicted, and consigned to infamy of their sessions is transacted, and the bulk of and agony in a foreign land during a long period the Bar released from attendance. I hope to of his life! No, gentlemen, as long as I sit finish the criminal business here by Saturday, here, with God's blessing, I will hold the scales nex, or at latest on Monday; and cheerfully of justice calmly and steadily, and watch the sacrifice the one or two intervening days, inclination of them towards guilt, or innocence, remaining here idle, to consult the convenience with unfaltering steadfastness and deliberation of those members of the Bar who may have For rough and ready justice, as it is called, I business at Beverley. always entertained, and do entertain, a horror. " I repeat, gentleman, what I said in a letter, And as for my interfering with a prisoner's recently read before the town council, that. I counsel, I cannot do so. My heart recoils feel a warm interest in the Venire Court, and from interrupting a gentleman to whom an am delighted to see the town council of the unhappy prisoner has intrusted his character same mind, The Venire Court is a very, arıand liberty, and who has a most anxious duty cient Court of civil justice here, absolutely unto perform. The length at which this shall / limited in jurisdiction, except in respect of lo198 Kingston-upon-Hull Sessions.-Equitable Defences to Actions at Law. cality. It sits throughout the year; the grand jury, in their sworn judgment, believed deputy Judge is your able and experienced that there had been a felony, the value of the town clerk, whose decisions' I have never once goods had nothing to do with it. Property hitherto had occasion to overrule. There is as was necessarily exposed on wharves, railroads, free audience for attorneys and solicitors as for &c., and if only a single apple, or orange, or the Bar : and I have seen gentlemen in both piece of rope was stolen, the value of it was departments of the Profession discharge the not for consideration. Alluding to a case of duties of advocates in this Court in the most rope stealing, where the rope had not been reable and satisfactory manner, and in cases of moved wholly from the premises, the recorder no little difficulty and importance. And I pointed out the law, that if with a felonious never saw jurymen discharge their duties intent property was only removed a hair's better.
breadth, that constituted a stealing. “ Having adverted to jurymen, allow me to Immediately previous to their being dissay that their duties, alike in criminal and charged, on Saturday afternoon, the foreman civil cases, are equally important and honourable. Nay, they are very elevating : for they
of the grand jury (Charles Liddell, Esq., train the mind to grave, patient, dispassionate Banker), read in open Court the following im. inquiry-teaching the noble lesson of keeping portant presentment :the judgment suspended, uninfluenced by mere assertion, by sophistry, by prejudice, by pre express to you, sir, as the recorder of this
* The grand jury beg, before separating, to also familiar with the system of judicial in borough, their sincere thanks for having so vestigation and the great leading principles of ably and so forcibly, in your charge, called our civil and criminal law. No juryman who their attention to the important subject of reforms a proper estimate of his position-one formatory schools. In all that you have adwhich trains and prepares him admirably to
vanced respecting the treatment of juvenile
Thay feel fill municipal office-will feel impatient while criminals they entirely concur. called on by his country to exercise such inter
convinced that a considerable number of the esting and momentous public functions.”
juvenile offenders that now repeatedly are
brought before you at borough sessions, can The learned recorder then proceeded to
be efficaciously dealt with only by judiciously say that he regretted to find that, although removing them early from the evil influences the last session, there were not less than 46 or which they may be trained as to enable them little more than two months had elapsed since by which they are surrounded, and by placing
them in some reformatory institution, in 47 distinct cases for trial, involving at least 49 prisoners. And he was sorry to find that to earn for themselves an honest livelihood, among these cases were some which he had and thus become useful members of society. hoped would have been decreased by the The grand jury, therefore, trust that the recent wholesome severity which he had felt
it bis Act of Parliament, giving the people power to duty to exercise. There were no fewer than Home Secretary to provide entirely or in part
establish reformatory schools, and enabling the 10 cases of servants robbing their masters. for their maintenance, may early' receive the That must be put down. He would venture to remind the grand jury that they had not to council of this borough, and they ardently hope
careful attention of the magistrates and town try cases, but simply to ascertain whether on that at no distant period means will be adoptthe blush-on the first aspect of the casethere was enough of suspicion of guilt to war.
ed to carry into effect a recommendation rant them sending the case into the Court for which, in its operation, must prove an imtrial. There were one or two cases of felony,
mense benefit to the whole community. by youthful offenders, and it might occur to
"CHARLES LIDDELL, Foreman.' some of them that these might have been disposed of summarily by the excellent gentle. EQUITABLE DEFENCES TO ACTIONS man (Mr. Travis) who sat by him. But he
AT LAW. (the recorder) presumed that the magistrate acted upon the principle of the Act of Parliament which enabled justices to deal summarily cedure Act, 1854, the parties in a cause in
By section 83 of the Common Law Prowith juvenile delinquents. That Act did not apply to compound felonies, but in the express which, if judgment were obtained, would be terms of the Act to simple larcenies only. And entitled to relief on equitable grounds, may if a child unfortunately committed a compound plead the facts by way of defence to the felony as it was called, he (the recorder) and the action. jury alone could deal with it—as in the case where The following annotation on this enacta child stole from the person—that took the ment is extracted from Mr. Malcolm Kerr's matter out of the hands of the stipendiary man work:gistrate and compelled him to send it there. There were one or two cases involving only a “ One head under which Courts of Equity small amount of property. But the amount have constantly given relief, has been that of had nothing to do with the matter. If thel' accident.' At law, an esecutor, having once Equitable Defences to Actions at Law.
199 received assets of his testator, cannot discharge owner's title, a Court of Equity will not allow himself under a plea of plenè administravit, him to proceed to take advantage of bis legal against a creditor seeking satisfaction out of right, by ejecting, without compensation, the the testator's assets, either on the score of in- person who has made such expenditure. evitable accident, as destruction by fire, loss (Hunning v. Ferrers, Gilb. Eq. Rep. 456 ; by robbery or the like, or reasonable confi- Stiles v. Cowper, 3 Atk. 83; Earl of Oxford's dence disappointed, or loss by any of the va- Case, i Ch. Rep. 1; 2 Tudor's L. C. in Eq. rious means, which afford excuse to ordinary 442; note, p. 456.) But in such cases the deagents and bailees, in cases of loss without any fendant, it would seem, must still resort to a negligence on their part. (7 East. 258.) Thus Court of Equity, for how can such facts be in a case where an executor having received pleaded as an equitable
defence to an action of assets, and paid them over to a co-executor for ejectment? Although the word 'cause’ is the purpose of satisfying a bond-creditor, who used in sec. 83, it can never bave been conhad demanded payment from such co-executor, templated that the defendants in ejectment upon the latter applying it in payment of his should be enabled to plead to the writ. It is own simple contract debts, it was held that the clear that it is only in personal actions' that executor, who had paid him the money, could an equitable defence may be set up by way of not discharge himself by the plea of the plenè plea. administravit to an action by the bond-creditor. Again, when a party has conveyed a reverIn equity, however, although an executor is sionary or expectant interest for an inadequate liable should he unnecessarily pay over assets value, he can set aside the transaction, in a to his co-executor whereby they are embezzled Court of Equity, upon the ground that undue or lost. (Townsend v. Barker, i Dick. 356 ; advantage has been taken of his position. Jiangford v. Gascoigne, 11 Ves. 333), yet if the (Gowland v. De Faria, 17 Ves. 20; Bawtree v. payment were in discharge of a necessary duty, Watson, 3 My. & K. 339 ; Edwards v. Browne, as for the purpose of satisfying creditors re- 2 Coll. 100; Davies v. Cooper, 5 My. & Cr. siding at a distance from the executor remitting 270.) In an action against the vendor by the such assets, he would not be liable for their purchaser, for the amount agreed to be paid, loss. (Bacon v. Bacon, 5 Ves. 331; 2 Tudor's the defendant may plead, that it was the sale Leading Cases in Equity ; 659, 660.) Again, of a reversionary interest at an undervalue. in equity, an executor has been held 'not liable “ In these cases, in equity, the onus of provfor the loss of assets occasioned by fire (Lady ing the adequacy of the price lies upon the Croft v. Lyndsey, Freem. Ch. Rep. 1) or rob- person dealing with the reversionary (Gowland bery (Holi v. Holt, 1 Ch. Ca. 191, Jones v. lv. De Faria, i7 Ves. 20). Quære, whether it Lewis
, 2 Ves. 240). In these cases an exe- will be so at law. Where, however, the dealcutor might have proceedings against him at ing with a reversionary interest is in the nature law restrained ; he may now plead in bar of an of a family arrangement (Tweddell v. Tweddell, action the same circumstances which would J. & R. 13; Heron v. Heron, 2 Atk. 160; have entitled him to this relief in equity. On Wallace v. Wallace, 2 D. & W. 452), or the the other hand, the plaintiff may, by way of party having a prior interest joins in the sale replication, insist upon any of those circum- (Wood v. Abny, 3 Madd. 422; Wardle v. stances, which in equity would have rendered Carter, 7 Sim. 490), and, according to Lord the executor liable, as for instance, that the Brougham, where the transaction was known payment to the executor was unnecessarily to the father of the reversioner, or the person made.
from whom the spes successionis was enter* The Courts of Equity also give relief tained (King v. Hamlet, 2 My. & K.), or if the against mistakes. Although relief will not be transaction had been so acted upon as to alter afforded against the legal consequences of any- the situation of the other party in his property thing done in ignorance of the law ( Marshall (16. sed vide Sug. V. & P. 316, 11 Ed.) a Court v. Collett, 1 Y. & C. Exch. Ca. 238; Great of Equity will not afford relief; and where a Western Railway Company v. Cripps, 5 Hare, sale of a reversionary or expectant interest has 91; Drew. Inj. 62), a Court of Equity will fre- taken place by auction, the purchaser is pre. quently give relief against the legal conse- sumed to have given an adequate price for it quences of mistakes of facts. Where, for in- (Shelly v. Nash, 3 Mad. 232), unless it appears stance, a person executed a deed, in which he, that by the conditions of the sale or mode of by mistake, covenanted to pay a sum of money conducting it, the interests of the reversioner to another, who commenced an action against were not properly attended to. (Fox v. Wright, him, a Court of Equity granted an injunction 6 Madd. 111.) Quære, whether such facts
can to restrain the action. (Ball v. Storie, 1 S. & be set up as avoiding a plea (s. 85) to the effect S. 210, see also Drew. on Injunct. 62.) above stated.
Another very important head under which “Where an expectant or reversioner borrows equity gives relief is that of fraud, both actual money upon a post-obit bond, a Court of and constructive. There are many cases where Equity will set it aside if unreasonable, or if a Court of Law does not take cognizance of the price be inadequate (Curwyn v. Milner, 3 what is considered fraud in a Court of Equity. P. Wms. 293, note; Peacock v. Evans, 16 Where, for instance, the owner of an estate Ves. 512, and see
1 Tudor's L. C. 394). Such stands by and permits another person to ex- inadequacy of price may, it would seem, be pend money upon it, in ignorance of the p.eaded in bar to an action upon bond.