« EelmineJätka »
Analytical Digest of Cases: Privy Council Appeals.
account, amounting to a considerable sum, for found to be partially damaged by the salt
future investigation. This reserved item was water. The master, who acted bona fide and subsequently settled by the acceptance of a to the best of his judgment, selected the dabill of exchange for a lesser amount, as such maged chests of opium and sold them by aucreserved item, if opened, would have disarrang- tion, and forwarded the remainder to Hong ed the settled general account. The bill of Kong. It appeared that the master might exchange was dishonoured, and an action have had the damaged opium redried and rebrought to recover the amount. A bill was packed while the vessel was refitting, and have then filed for an injunction, for the cancelment forwarded it, though deteriorated in value, with of the bill of exchange, and that the accounts the other opium: Held, under such circumso settled might be opened. The Supreme stances, in an action brought by the consigCourt at Calcutta held, that the reserved item nees against the shipowner for the value of the being left open, was evidence that the account opium damaged and sold, that it was the duty was not finally closed, and decreed the accounts of the master to carry the cargo to its place of to be opened, referring the cause to the Master. destination, as the goods could have been deUpon appeal, held by the Judicial Commit-livered in a merchantable although damaged tee (reversing such decree and dismissing the state. Tronson v. Dent, 8 Moore, P. C. 419. bill with costs), that the transaction amounted to an adjustment of the general accounts between the parties, subject to the reserved item, which was ultimately settled, and that the accounts so settled and closed could not, in the absence of fraud, be reopened.
The defendant did not appeal from this interlocutory decree, but proceeded in the Master's office in respect of the other matters included in the accounts; but before the general report was made by the Master, he appealed from such interlocutory decree to England. In reversing such decision, the Judicial Commities ordered him to pay the costs of the proceedings in the Master's office, and remitted the cause to the Court below, with directions that the costs payable by the defendant upon the dismissal of the bill, and the costs payable by him consequent upon his proceedings in the Master's office, should be set off, the one against the other, and the balance paid to the party entitled to the same.
Cases cited in the judgment: Roux v. Salvador,
4 Scott, 1; 3 Bing. N. C. 266; Vlierboom v. Chapman, 13 M. & W. 230; Idle v. Royal Exchange Assurance Company, 8 Taunt. 755; 3 Brod, & B. 151 n.; Robertson v. Clarke, 1 Bing. 445; Read v. Bonham, 3 Brod. & B. 147; Knight v. Faith, 15 Q. B. 649.
Validity of-Extravagant disposition of property.-An Englishman, who had resided for many years in India, and become imbued with eastern notions, professing himself at different times a believer in the Hindoo and Mahomedan faiths, and to a great degree adopting the habits of life of the latter, by his will (which, with the exception of a small legacy, excluded his brother, his only next of kin, from any benefit) after bequeathing several legacies and specific bequests, gave the residue of his property to the Turkish Ambassador, or the person for the time being representing him, to be applied for the benefit of the poor of the city of Constantinople, and for the erecting of a cenotaph at Constantinople, with a light burning and a description of the testator engraved thereon. This will, which was in conformity with his written instructions, was duly executed during the last illness of the testator. The Prerogative Court, by its sentence, refused probate, upon the ground of the extraordinary nature of the bequest, coupled with the wild and extravagant conduct of the testator about the time of its execution, which the Court considered as amounting to insanity. Such sentence reversed upon appeal, and the will established; the Judicial Committee being of opinion, that as the will was in conformity with the written instructions of the deceased, the true test to ascertain its validity was to look into the previous habits and opinions of the testator to account for his his extravagant behaviour and language, and that though the dispositions in the will might be absurd and irrational in a Duty of Master-Carrying cargo to desti- native of England and a Christian, according to nation.-A cargo of opium, shipped at Cal- English habits, they were accounted for in the cutta, was by the bill of lading to be delivered case of the testator, who had in early life adoptat Hong Kong to the respondents. The shiped the manners and mode of living of a Macame in collision at sea with another vessel, homedan. Austen v. Grahan, 8 Moore, P. C. and received so much injury as to compel her 493.
Leave to appeal on an exparte application, was under special circumstances granted upon terms of the appellant prosecuting the appeal and giving security for 500l. No step was, however, taken by the appellant to perfect the security or prosecute the appeal. The respondents on being served with the order admitting the appeal, filed a counter petition to revoke the leave granted to appeal. The Judicial Committee, under the circumstances, there having been great delay, made an order putting the appellant upon terms of lodging his peti tion of appeal within six weeks, or the appeal to stand dismissed, and enlarged the amount of the recognizance to 1,000l., to cover the expenses occasioned by the proceedings in the Master's office, reserving the costs of the application to revoke the leave to appeal to the hearing. M'Kellar v. Wallace, 8 Moore, P. C.
to put in at Singapore, where the cargo was
The Legal Observer,
Still attorneyed at your service."-Shakespeare
SATURDAY, NOVEMBER 10, 1855.
PRACTICAL DEFECTS IN LEGIS-
SUMMARY PROCEDURE ON BILLS OF
ONE of the proposed measures of last Session, and which will no doubt be again introduced in the next, had for its object the withdrawal of a large portion of the private Bills which are annually brought into Parliament for the purpose of supplying defects in wills and settlements regarding the power of leasing, exchanging, or selling family estates; and transferring the authority in such cases to the Court of Chancery, where the object of the parties interested may be effected without delay and at a comparatively moderate expense.
on the existing course of proceeding. Secondly, if there should remain any failure in the machinery by which the amendment is sought to be effected, the Judges can promptly supply the defect by a new regulation or an amended form. Thirdly, if the Judges thought it proper, they could have the assistance, in matters of practice, not only of their own immediate officers, but of the attorneys of the Court, who, acting on behalf of the suitors, have to carry the rules and regulations of the Court into practical effect.
We make these remarks in reference to the Summary Procedure on Bills of Exchange Act, wherein not only a speedier remedy was intended to be given on dishonoured bills and notes, and all defence excluded, except by leave of a Judge (which Reforms like this must receive the ap- provisions are no doubt fit subjects of leproval of all classes both public and pro- gislation); but the Schedule to the Act fessional. One of the Acts of last Session gives the precise form of the writ and its sestrikingly shows that this improvement of veral indorsements; and although it is prowithdrawing unsuitable matters from the vided that the Common Law Procedure Acts Houses of Parliament, and confiding them of 1852 and 1854, and all rules made under to the Judges of the Superior Courts, should those Acts, so far as the same are or may be carried into various other departments be made applicable, shall extend to all proof our legal system. The proper province ceedings under the new Act, it is doubtful of the Legislature is to enact general laws whether the Judges can by any rules and and establish general principles for the ad- orders amend the precise forms given in ministration of justice. The forms and the Schedule.
modes in which those laws and principles It was supposed at first that under the should be carried into practical effect, 223rd and 224th sections of the Procedure should be left to the Judges and their Act of 1852, and the 97th and 98th sections officers by whom the rules are to be en- of the Act of 1854, "for the effectual exeforced. There would be several advantages cution of the Act and of the intention and in this method of proceeding :-First, the object thereof," the Judges might have Judges and their officers being well ac- corrected the forms in the Schedule of the quainted with the existing law and practice, new Act; but we understand that several know the most convenient mode of engraft- of the Judges are of opinion that they are ing the alteration which has been enacted not authorised to alter the new form of inVOL. LI. No. 1,444.
Practical Defects in Legislation-Summary Procedure on Bills of Exchange.
dorsements on the writ; and if so, no costs | either by rule of Court or an amendment of can be recovered unless the action proceeds the Act, provision should be made for the to judgment; and the defendant, on being various events that may occur,-namely, served with the writ, may tender the principal and interest without costs or noting; and yet the 5th section of the new Act expressly gives "the expenses incurred in noting for non-acceptance or non-payment or otherwise."1
where the party first served with the writ does not pay, and a second is served, who pays the debt and costs applicable to himself, but not the costs against the first party; or it may be that a third service on another party becomes necessary, and which We presume the question must soon be in the terms of the Act is also to be taken raised before the Court, either by an ap- as if a separate writ had been issued, and plication to stay the proceedings, if a consequently the judgment against each will tender of the debt be made (without be separate, whether drawer, acceptor, or costs), and the money refused, or if re- indorser; and the several judgments will ceived by the plaintiff's attorney, and he comprise the costs of each with interest to should proceed in the action to recover the the date of the judgment. And then there costs; or if judgment be signed, by a mo- will be a claim for subsequent interest to tion to set it aside. On full consideration the time of actual payment. of the whole matter, we trust the Judges will supply the defects by aid of their comprehensive powers under the Common Law Procedure Acts, which the Legislature, by incorporating in the new Act, surely intended to be made available.
Here are difficulties and doubts enough, and it is not improbable when actions are brought under the Act, that further defects will be discovered. Indeed, there seems danger that the cautious practitioners will not avail themselves of the new procedure, One of the most important points arises except in cases where a dilatory or fictitious under the 6th section, which provides, that defence may be anticipated, and it may be the holder may issue one writ of summons worth while to encounter the difficulties against all or any of the parties to the bill, referred to. If it should be expected that and such writ shall be the commencement a defence will be set up, and that in all of an action or actions against the parties probability the Judge would grant an order named therein respectively, and all subse- to appear and plead, the plaintiff may then quent proceedings against such respective be advised to sue in the ordinary manner. parties shall be in like manner, so far as Still there may be cases where it is desirmay be, as if separate writs of summons able that the affidavit to be made by the had been issued. It follows from this defendant, in support of the application, provision that there would be separate judg- should be known to the plaintiff :—such afments against each party, although all are fidavit disclosing a legal or equitable deincluded in the same writ; and the costs of fence, or other facts which the Judge may each judgment would be the same, minus deem sufficient to support the applicathe fee on the original writ, or a proportion tion. thereof.
This clause was introduced in the Committee of the House of Commons to meet the supposed advantage of Lord Brougham's proposed Bill, under which the registrar (a proposed new officer of Court) would enter the notarial protest against all the parties to the dishonoured bill. The clause seems not to have been prepared with sufficient correctness; and consequently,
The form in the Schedule leaves the number of days blank. If the noting cannot be added, nor the costs, how is the blank to be supplied?
The 5th section provides, that the holder of every dishonoured bill or note shall have the same remedy for recovering the expense of noting as for the amount of the bill. Here the body of the Act gives a right and the form in the Schedule omits it. How is this to be cured?
arise out of evil. We trust that one of the results of this specimen of imperfect legislation will be, that hereafter the Legislature will leave the task of framing technical forms of proceeding to the Judges, and that the Judges, with the assistance of their officers,-not forgetting the practitioners of the Court,-will be enabled to avoid these unseemly difficulties in the administration of justice.
In another Statute of the last Session, a more prudent course was adopted. In the Despatch of Business in Chancery Act (18 & 19 Vict. c. 134), the 16th section extends the jurisdiction of the Judges sitting in Chambers, regarding trust funds and other matters. Hitherto the object of the parties could only be effected by petition or motion in Court, though in a summary way without Bill; but in future it may be done at Chambers under General Orders to be
Professional Remuneration-Opinions of the Law Amendment Society.
made by the Lord Chancellor with the advice of the Master of the Rolls and the Vice-Chancellors.3
the interest of all branches of the Profession that legal documents should be as short and clear as possible."
The Law Amendment Society had refer
PROFESSIONAL REMUNERATION. red to a Special Committee "to consider
OPINIONS OF THE LAW AMENDMENT
the present relation between the Bar, the
"It has been more than once affirmed in this
catalogue of legal improvements, that the chief test of reform will be the mitigation of the atborne out by the report, which states that the torney's bill. This observation seems fully method of charging by the length of documents, and by the number of steps, lies at the very root of the expensiveness of legal proceedings; and they [the Committee] believe that, until an adequate remedy is applied, no law reform whatever will succeed in reducing law expenses within reasonable limits.' These habits of taking the dividual items or steps as the staple of the bill, length of documents, and the charges for inare, in the eyes of the Committee, distinctive claims on the part of the attorney when compared with the demands of other labourers. First, the attorney gains in proportion to the length of his work, whence it follows that stupidity and ignorance reap better fruits than does not make up his bill per saltum, but skill and information. Secondly, the attorney seriatim. Each article is the subject of a separate entry. He relies in Court business upon the scale of costs allowed on taxation, and in conveyancing upon, we may say, although the Committee do not so report it, the latitude of his conscience. Thirdly, his charges are compulsory in many cases, as where the Fourthly, instead of being subject to the relosing party has to pay his adversary's costs.' vision of a competent tribunal, his demand is reviewed by gentlemen who have at some time or other followed his own profession.'
THE new number of the Law Review comprises articles on the following subjects:-1. Judicial Orators and Writers in France. 2. Anonymous Writing. 3. Minister of Justice. 4. History of the Law Amendment Society. 5. Digest of the Law of Scotland. 6. Statute Law Commission. 7. Laws relating to Women. 8. Letter from Lord Brougham. 9. History of Jurisprudence. 10. Mettray and M. De Metz in England. 11. Principles of Jurisprudence. 12. Local Government.-Metropo litan Board of Works. 13. International Commercial Law. 14. Hon. Mrs. Norton's Letter. 15. Refugees in England. 16. Adjudged points. 17. Events of the Quarter. This is a comprehensive bill of fare for the legal reader. We shall confine ourselves to an important part of the article on the History of the Law Amendment Society (of which the Law Review is the organ); namely, "Professional Remuneration." We think that the views of the Law Amendment Society on this subject should be brought to the notice of our readers. Many of the members of that society are eminent solicitors, though the larger part are barristers; and it is fair to notice that on this subject of professional remuneration, which in fact aims at cheapening law charges in all departments to the lowest possible amount, the Law Amendment Society include as well the reduction of the fees of It is well known that in consequence of counsel, special pleaders and conveyancers the expedition required in copying convey(meaning, we suppose, conveyancers at the Bar), as those of attorneys and solicitors. Quoting from the Report of the Committee of the Law Amendment Society, it is said
ancing deeds, cases, briefs, and pleadings, (generally a very respectable body of men) the solicitors largely employ law stationers
to assist them, and the law stationers have "The observations which have been before in their employ, or are in communication made in the case of solicitors, in respect to with, a sufficient number of writers to copy payment in proportion to length, will apply these papers within the time required. The with nearly equal force to counsel, special solicitor is responsible for the accuracy of pleaders, and conveyancers; and your Committee having already expressed their opinion these copies, whether written by his own that that method of payment should be entirely clerks or the law stationer. It will be seen abandoned in all branches of the law, consider in the following extracts from the Law Rethat the fees to be paid to counsel, special view, that it is proposed the Solicitor should pleaders, and conveyancers, should be regulated by the same criterion as in the case of solicitors and attorneys. And if this suggestion were adopted, they think it would be found to be to
'These orders have not yet been made.
charge no more than the actual disbursement to the law stationer, which is called the "market value" of the work!
"The Committee look upon the practice of charging by steps as another inducement to
Professional Remuneration.-New Statutes effecting Alterations in the Law.
multiplication, and by referring to the comparative cost of copying and engrossing, as between solicitiors and law stationers, they show that whilst the attorney is beguiled into an increase of his work on the one hand, he is overpaid for it on the other. A table is given as a proof of this great difference of gain on the solicitor's side. It shows,' we are quoting from the report, that the attorney charges, and is allowed on taxation, sums varying from three and one-third to four times the amounts charged by the law stationer, that is, from three and one-third or four times the market value of his commodity. And your Committee feel the more bound to put this fact prominently forward, inasmuch as the Judges have, so lately as in Hilary Term, 1853, in their directions to the Taxing Masters, expressly au
thorised this rate of payment.'
"The report then gives a solicitor's bill of costs for a common lease of 30 folios, or 10
"The bill contains 37. 38. 4d. for the solicitor's professional skill; 27. 10s. for copying; and 21. 6s. 8d. for materials, monies paid, &c. And of this 17. 10s. only is for the preparation of the important document itself. Now, if 17. 10s. be a sufficient remuneration for drawing the document, surely 27. 10s, must be more than a proportionate remuneration for its transcription and engrossment.'
"The saving is estimated by the Committee at 29 two-tenths per cent., admitting the law stationer's charges as a substitute for those of the solicitor in respect of the copying, engross
ing, and parchment, and yielding up to the
attorney the full amount of his draft."
We deem it necessary that the solicitors should be made acquainted with these views of "Professional Remuneration," emanating from the Law Amendment Society. The Law Reviewer thus proceeds
NEW STATUTES EFFECTING AL-
LAWS OF BURIAL.
18 & 19 VICT. c. 128.
The preamble recites the 15 & 16 Vict. c. 85; 16 & 17 Vict. c. 134; and 17 & 18 Vict. c. 87.
Orders in Council under the recited Acts may be varied by like orders; s. 1. Penalty on persons burying contrary to the provisions of Orders in Council; s. 2.
Power to churchwardens to call vestry meetings for providing burial grounds. Where Order in Council has been made, or notice given to apply to the Privy Council for closing burial grounds, churchwardens shall call a meeting of vestry; s. 3.
Vacancies in burial board to be filled up by vestry within a month; s. 4. Monthly meetings of boards repealed;
Sanction of vestry not required for expenditure and other acts of burial board in certain cases; s. 6.
Fees, &c., to be subject to the approval of Secretary of State; s. 7.
Secretary of State may direct inspection of burial grounds. Penalty for obstructing inspector or violating regulations; s. 8.
Part of sect. 24 of 15 & 16 Vict. c. 85,
repealed. Burial ground not to be within 100 yards of a dwelling-house: s. 9.
If ratepayers resolve, land for new burial ground may be conveyed and settled as old burial ground; s. 10.
How burial grounds are to be provided for united parishes; s. 11.
Burial boards may be appointed for township, &c. (not separately maintaining their own poor) which have had separate burial grounds; s. 12.
Provision for expenses of burial boards of places not separately maintaining their own poor; s. 13.
"The report recommends the abolition of all proportionate charges in all branches of law,' with reference to mere length, except in the case of necessary copying and engrossing, which should be the same as those of the law stationers. Charges in proportion to the number of steps or attendances should be restricted within the narrowest possible limits. No obligation to build a chapel for percharge for drawing or preparing all documents, and pleadings, should include the instructions sons not members of the Church of Engand necessary copies and attendances; and land when Secretary of State, upon reprewhen a document is settled by counsel, no other sentation of three-fourths of vestry, declares charge for drawing should be allowed. The it unnecessary; s. 14. skill and labour, moreover, and not the length of a document, should be considered by the Taxing Masters. The Committee then refer to Lord Brougham's Acts, and to the scale of costs under the new County Courts Act, and suggest that if some better arrangement be not adopted in regard of taxation, the ordinary tribunal of a jury will have to be substituted for that of the Taxing Master.""
Assessment to local rates not to be increased after purchases for the purposes of this or any former Act; s. 15.
Separate burial boards whose burial grounds adjoin may contract with each other for specific purposes; s. 16.
Burial board may let land not required for burials; s. 17.
Burial board to keep in order closed burial grounds, &c.; s. 18.