« 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 recorer 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 de
Upon 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 be
Cases cited in the judgment: Roux v. Salvador,
4 Scott, 1; 3 Bing. N. C. 266; Vlierboom v. tween the parties, subject to the reserved item,
Chapman, 13 M. & W. 230; Idle v. Royal which was ultimately settled, and that the ac- Exchange Assurance Company, 8 Taunt. 755; counts so settled and closed could not, in the 3 Brod, & B. 151 n. ; Robertson v. Clarke, 1 absence of fraud, be reopened.
Bing. 445 ; Read v. Bonham, 3 Brod. & B. The defendant did not appeal from this in. 147 ; Knight v. Faith, 15 Q. B. 649. terlocutory decree, but proceeded in the Mas
WILL. ter's office in respect of the other matters included in the accounts; but before the general
Validity of .- Extravogant disposition of proreport was made by the Master, he appealed periy.-An Englishman, who had resided for from such interlocutory decree to England. many years in India, and become imbued with In reversing such decision, the Judicial Com eastern notions, professing himself at different mitiee ordered him to pay the costs of the times a believer in the Hindoo and Mahomedan proceedings in the Master's office, and remitted faiths, and to a great degree adopting the babits the cause to the Court below, with directions of life of the latter, by his will (which, with the that the costs payable by the defendaut upon exception of a small legacy, excluded his brothe dismissal of the bill, and the costs payable ther, his only next of kin, from any benefit) after by him consequent upon his proceedings in the bequeathing several legacies and specific beMaster's office, should be set off, the one quests, gave the residue of his property to the against the other, and the balance paid to the Turkish Ambassador, or the person for the party entitled to the same.
time being representing him, to be applied for Leave to appeal on an exparte application, the benefit of the poor of the city of Constantiwas under special circumstances granted upon nople, and for the erecting of a cenotaph at terms of the appellant prosecuting the appeal Constantinople, with a light burning and a deand giving security for 500l. No step was, scription of the testator engraved thereon. however, taken by the appellant to perfect the This will, which was in conformity with his security or prosecute the appeal. The respond written instructions, was duly executed during ents on being served with the order admitting the last illness of the testator. The Prerogative the appeal, filed a counter petition to revoke Court, by its sentence, refused probate, upon the the leave granted to appeal. The Judicial ground of the extraordinary nature of the beCommittee, under the circumstances, there quest, coupled with the wild and extravagant having been great delay, made an order putting conduct of the testator about the time of its the appellant upon terms of lodging his peti. execution, which the Court considered as tion of appeal within six weeks, or the appeal amounting to insanity: Such sentence reto stand dismissed, and enlarged the amount versed upon appeal, and the will established ; of the recognizance to 1,0001., to cover the the Judicial Committee being of opinion, that expenses occasioned by the proceedings in the as the will was in conformity with the written Master's office, reserving the costs of the ap
instructions of the deceased, the true test to plication to revoke the leave to appeal to the ascertain its validity was to look into the prehearing. M'Kellar v. Wallace, 8 Moore, P. C. vious habits and opinions of the testator to ac378.
count for his his extravagant behaviour and
language, and that though the dispositions in SHIP.
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 ship ed the manners and more of living of a Macame in collision at sea with another vessel, homedan. Austen v. Grahari, 8 Moore, P. C. and received so much injury as to compel her 493. 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- on the existing course of proceeding. SeLATION.
condly, if there should remain any failure in the machinery by which the amendment
is sought to be effected, the Judges can SUMMARY PROCEDURE ON
promptly supply the defect by a new reguEXCHANGE.
lation or an amended form. Thirdly, if the ONE of the proposed measures of last Judges thought it proper, they could have Session, and which will no doubt be again the assistance, in matters of practice, not introduced in the next, had for its object only of their own immediate officers, but of the withdrawal of a large portion of the the attorneys of the Court, who, acting on private Bills which are annually brought behalf of the suitors, have to carry the rules into Parliament for the purpose of supply- and regulations of the Court into practical ing defects in wills and settlements regard- effect. ing the power of leasing, exchanging, or We make these remarks in reference to selling family estates; and transferring the the Summary Procedure on Bills of Exauthority in such cases to the Court of change Act, wherein not only a speedier Chancery, where the object of the parties remedy was intended to be given on dishointerested may be effected without delay noured bills and notes, and all defence exand at a comparatively moderate expense. cluded, 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 in
Vol. LI. No. 1,444.
22 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 prin- where the party first served with the writ cipal and interest without costs or noting ; does not pay, and a second is served, who and yet the 5th section of the new Act ex- pays the debt and costs applicable to himpressly gives “the expenses incurred in self, but not the costs against the first noting for non-acceptance or non-payment party; or it may be that a third service on or otherwise.”1
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 ;2 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 Here are difficulties and doubts enough, will supply the defects by aid of their com- and it is not improbable when actions are prehensive powers under the Common Law brought under the Act, that further defects Procedure Acts, which the Legislature, by will be discovered. Indeed, there seems incorporating in the new Act, surely in danger that the cautious practitioners will tended to be made available.
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.
Good may arise out of evil. We trust This clause was introduced in the that one of the results of this specimen of Committee of the House of Commons to imperfect legislation will be, that hereafter meet the supposed advantage of Lord the Legislature will leave the task of framBrougham's proposed Bill, under which the ing technical forms of proceeding to the registrar (a proposed new officer of Court) Judges, and that the Judges, with the aswould enter the notarial protest against all sistance of their officers,—not forgetting the the parties to the dishonoured bill. The practitioners of the Court,—will be enabled clause seems not to have been prepared with to avoid these unseemly difficulties in the sufficient correctness; and consequently, administration of justice.
In another Statute of the last Session, a · The form in the Schedule leaves the num- more prudent course was adopted. In the ber of days blank. If the noting cannot be Despatch of Business in Chancery Act (18 added, nor the costs, how is the blank to be & 19 Vict. c. 134), the 16th section exsupplied ?
The 5th section provides, that the holder tends the jurisdiction of the Judges sitting of every dishonoured bill or note shall have the in Chambers, regarding trust funds and same remedy for recovering the expense of other matters. Hitherto the object of the noting as for the amount of the bill. Here the parties could only be effected by petition or body of the Act gives a right and the form in motion in Court, though in a summary way the Schedule omits it. How is this to be without Bill; but in future it may be done cured?
at Chambers under General Orders to be
Professional Remuneration-Opinions of the Law Amendment Society.
23 made by the Lord Chancellor with the ad- the interest of all branches of the Profession vice of the Master of the Rolls and the that legal documents should be as short and Vice-Chancellors.3
clear as possible.”
The Law Amendment Society had referPROFESSIONAL REMUNERATION. red to a Special Committee • to consider
the present relation between the Bar, the OPINIONS OF THE LAW AMENDMENT
Attorney, and the Client; and to report SOCIETY.
whether any and what alterations can be The new number of the Law Review lic; and the reviewer observes that
made therein with advantage to the pubcomprises articles on the following subjects:-1. Judicial Orators and Writers in “ It has been more than once affirmed in this France. 2. Anonymous Writing. 3. Mi- catalogue of legal improvements, that the chief nister of Justice. 4. History of the Law test of reform will be the mitigation of the atAmendment Society. 5. Digest of the Law borne out by the report, which states that the
torney's bill. This observation seems fully of Scotland. 6. Statute Law Commission. method of charging by the length of documents, 7. Laws relating to Women. 8. Letter and by the number of steps, lies at the very from Lord Brougham. 9. History of Ju- root of the expensiveness of legal proceedings ; risprudence. 10. Mettray and M. De Metz and they (the Committee) believe that, until an in England. 11. Principles of Jurispru- adequate remedy is applied, no law reform whatdence. 12. Local Government.—Metropo. ever will succeed in reducing law expenses withlitan Board of Works. 13. International in reasonable limits. These habits of taking the Commercial Law. 14. Hon. Mrs. Norton's dividual items or steps as the staple of the bill,
length of documents, and the charges for inLetter. 15. Refugees in England. 16. Ad- are, in the eyes of the Committee, distinctive judged points. 17. Events of the Quarter. claims on the part of the attorney when com
This is a comprehensive bill of fare for pared with the demands of other labourers. the legal reader. 'We shall confine ourselves First, the attorney gains in proportion to the to an important part of the article on the length of his work, whence it' follows that History of the Law Amendment Society stupidity and ignorance reap better fruits than (of which the Lavy Review is the organ); does not make up his bill per saltum, but
skill and information. Secondly, the attorney namely, “ Professional Remuneration." We
seriatim. Each article is the subject of a sethink that the views of the Law Amend- parate entry. He relies in Court business ment Society on this subject should be upon the scale of costs allowed on taxation, brought to the notice of our readers. Many and in conveyancing upon, we may say, alof the members of that society are eminent though the Committee do not so report it, the solicitors, though the larger part are bar- latitude of his conscience. Thirdly, his charges risters; and it is fair to notice that on
are compulsory in many cases, as where the this subject of professional remuneration, — Fourthly, instead of being subject to the re
losing party has to pay his adversary's costs.' which in fact aims at cheapening law charges vision of a competent tribunal, his demand is in all departments to the lowest possible reviewed by gentlemen who have at some amount,--the Law Amendment Society in- time or other followed his own profession.' clude 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 ancing deeds, cases, briefs, and pleadings, Bar), as those of attorneys and solicitors. the solicitors largely employ law stationers Quoting from the Report of the Committee of the Law Amendment Society, it is said (generally a very respectable body of men)
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 charge no more than the actual disburseby the same criterion as in the case of solicitors ment to the law stationer, which is called and attorneys. And if this suggestion were the “market value” of the workl adopted, they think it would be found to be to
“ The Committee look upon the practice of These orders have not yet been made. charging by steps as another inducement to
24 Professional Remuneration - New Statutes effecting Alterations in the Law. multiplication, and by referring to the compa- NEW STATUTES EFFECTING ALrative cost of copying and engrossing, as be- TERATIONS IN THE LAW. tween solicitiors and law stationers, they show that whilst the attorney is beguiled into an in
LAWS OF BURIAL. crease of his work on the one hand, he is overpaid for it on the other. A table is given as
18 & 19 VICT. C. 128. a proof of this great difference of gain on the
The preamble recites the 15 & 16 Vict. solicitor's side. It shows,' we are quoting c. 85; 16 & 17 Vict. c. 134 ; and 17 & 18 from the report, that the attorney charges, Vict. c. 87. and is allowed on taxation, sums varying from three and one-third to four times the amounts
Orders in Council under the recited Acts charged by the law stationer,--that is, from may be varied by like orders ; s. 1. three and one-third or four times the market Penalty on persons burying contrary to value of his commodity. And your Committee the provisions of Orders in Council ; s. 2. feel the more bound to put this fact promi- Power to churchwardens to call vestry nently forward, inasmuch as the Judges have, meetings for providing, burial grounds. so lately as in Hilary Term, 1853, in their di- Where Order in Council has been made, or rections to the Taxing Masters, expressly au notice given to apply to the Privy Council thorised this rate of payment.”
“The report then gives a solicitor's bill of for closing burial grounds, churchwardens costs for a common lease of 30 folios, or 10 shall call a meeting of vestry ; s. 3. skins,'
Vacancies in burial board to be filled up ". The bill contains 31. 38. 4d. for the solici- | by vestry within a month ; s. 4. tor's professional skill; 21. 108. for copying ; Monthly meetings of boards repealed; and 21. 6s. 8d. for materials, monies paid, &c. And of this ll. 10s, only is for the preparation
Sanction of vestry not required for exof the important document itself. Now, if 11. 10. be a sufficient remuneration for draw. penditure and other acts of burial board in ing the document, surely 21. 108, must be more certain cases ; s. 6. than a proportionate remuneration for its trans- Fees, &c., to be subject to the approval cription and engrossment.'
of Secretary of State ; s. 7. * The saving is estimated by the Committee Secretary of State may direct inspection at 29 two-tenths per cent., admitting the law of burial grounds. Penalty for obstructing stationer's charges as a substitute for those of inspector or violating regulations ; s. 8. the solicitor in respect of the copying, engross
Part of sect. 24 of 15 & 16 Vict. c. 85, ing, and parekment, and yielding up to the repealed. Burial ground not to be within attorney the full amount of his draft.
100 yards of a dwelling-house : s. 9. We deem it necessary that the solicitors If ratepayers resolve, land for new burial should be made acquainted with these views ground may be conveyed and settled as old of “Professional Remuneration,” emanating burial ground; s. 10. from the Law Amendment Society. The How burial grounds are to be provided Law Reviewer thus proceeds :
for united parishes ; s. 11. “The report recommends the abolition of
Burial boards may be appointed for town- . all proportionate charges in all branches of ship, &c. (not separately maintaining their law, with reference to mere length, except in own poor) which have had separate burial the case of necessary copying and engrossing, grounds; s. 12. which should be the same as those of the law Provision for expenses of burial boards of stationers. Charges in proportion to the num- places not separately maintaining their own ber of steps or attendances should be restricted
poor ; s. 13. within the narrowest possible limits. The
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. Assessment to local rates not to be inof a document, should be considered by the creased after purchases for the purposes of Taxing Masters. The Committee then refer this or any former Act ; s. 15. to Lord Brougham's Acts, and to the scale of costs under the new County Courts Act, and
Separate burial boards whose burial suggest that if some better arrangement be not grounds adjoin may contract with each adopted in regard of taxation, the ordinary other for specific purposes ; s. 16. tribunal of a jury will have to be substituted Burial board may let land not required for that of the Taxing Master.!"
for burials ; s. 17.
Burial board to keep in order closed burial grounds, &c. ; s. 18.