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County Court Reform. What evidence we as yet possess was all de- itself, but it may save much valuable space in livered by the end of May, 1854, and has been your columns, and relieve the minds of many in print since April, 1855. That is, however, of your readers, to be told that “The Commisbut “Report part First,” and of "Report part siovers do not recommend any considerable Second,” which should succeed it, the Public increase of the jurisdiction of these Courts, and the Profession have not heard one syllable. or that in cases not exceeding 201., any appeal Can it be true, as is openly averred, that some at all, either of law or fact, should be allowed. disclosures have been offered to the Commis- They advise, however, that in other cases the sioners,—disclosures, sir, impeaching not only appeal on points of law, should remain as it is the competence but the judicial conduct of one at present; but that no appeals on questions of of the three score Judges.

fact shall in any case be admitted from the deHow have the nine Commissioners of Inquiry cision of a County Court Judge. discharged the trust confided to them? They Having ascertained “That in some cases have summoned 18 witnesses-so far so good. more than 300 sunmonses have been made -Amongst these 18, we recognise, five County returnable in one day, they think that this is Court Judges with two deputies, a couple of “obviously improper,' and recommend that high bailiffs, a brace of clerks, and one of their 150 should be the maximum, suggesting also treasurers--12 out of the 18 witnesses being that it would be a great relief to suitors, if no interested, their professional rank, their pro- greater number than 50 summonses were made fessional income, nay, almost their means of returnable at any one hour.'” existence depending mainly upon their success With respect to fees, the Commissioners inin upholding these County Courts. One form us not only that some of the fees origistamp distributor is added, who knows and nally allowed were "excessive,” but that "so can know nothing practically of these tribunals. vague was the language of the schedule, that One quondam Queen’s Counsel, now our the officers were enabled to take more fees Junior Baron of the Exchequer, who has seen than the Legislature intended.” They advise enough of them to distrust them, and depre- “ reductions of 124,8001. upon the total of cate earnestly any extension of their powers, 253,5181., at present levied on the suitors,” leaving four attorneys, all men of mark and recommending also, a modification of the sastation doubtless, but of whom it is but right laries of the Judge's clerks, and a diminution that I should advertise you, that the first don't of the duties and emoluments of their highpractise in the County Courts at all;' the se- bailiffs. cond enters them, but only for defendants ;? And now, would to God that, consistently the third don't say as much, but leaves us to in- with his public duty, your correspondent might fer it of him; and the fourth, avowing that he lay down his pen. But, sir, complaints by far practises extensively, takes care to tell us also too long suppressed, burst forth on all sides, that he does this in Yorkshire," where, as and men do not hesitate to believe that corrupwe elsewhere gather from the evidence of a re- tion, rife in every branch of the public service, spectable high bailiff, the County Courts are but still believed to be excluded from our own, popular.

has wormed its way into the sanctuary of EngThe 18 witnesses then accounted for, the lish Law,—that our Judges nuw-a-days are Commission it appears is closed, and that al- sometimes irregularly selected. though not even a single advocate accustomed The aggregate of evil inflicted on the comto act in the metropolis for plaintiffs has been munity by a bad judicial appointment is so examined, no suitor has been heard to testify enormous, that it would be less mischievous to to the merits or deprecate the evils of the ex- the public, if a Chancellor were to accept a isting County Courts, or what is still more ex. bribe for pronouncing an unjust decree than traordinary, no merchant, shopkeeper or com- if, yielding to personal favour or party bias, he mercial traveller has been called in to explain should make an incompetent Judge." * the merits or short-comings of the present Such was in 1847, the theory of Lord Campsystem.

bell,- what was in 1847, the practice of the With such facts before us, at least it will then Lord Chancellor ? not be disputed that these new tribunals and “Out of the 60 appointments, there were their authorities were amply represented; with but 23 over which the Lord Chancellor could the report before us, it were uncandid and un- exercise his own discretion, the other (37) generous to conceal, that in every instance the were gentlemen who had previous claims, that testimony given reflects high credit upon the the Lord Chancellor was bound to submit good sense and integrity of the witness.

Opinions differ widely among the gentlemen What “claims" they were, to which the first thus far examined, who have on all points Law-officer in the kingdom, whose bounden manfully spoken out their minds. Nor is the verdict of the Commissioners unanimous; one 3 This, in a sitting of 10 hours, gave someof them (Mr. J. P. Taylor) appending a very thing less than two minutes to the plaintiff's lucid and ingenious protest to the return and defendant's with their respective witnesses agreed upon by his colleagues. The more in each case. curious student I must refer to the report Lives of the Chancellors. Vol. 3, p. 264.

Edit. 1847. · Evidence, q. 913.

Report, pp. 97, 558.

to,” 5

Ibid, q. 3.

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County Court Reform.-Notes of the Week.

349 duty is, or is at least popularly supposed to be, ventilated. This was accordingly done, and to “fill the seats of judgment with good men —could be “ bound” against his better reason been thrown wide open for 5 or 10 minutes,

all the doors and some of the windows having to “submit," must be investigated thoroughly elsewhere. About two-thirds of the nomina- business was resumed. tions of 1847 were, it seems, extra judicial,- We may here observe that the state of the were they, however, in other respects unex- Courts has been a constant subject of comceptionable? Let us hear the testimony of plaint during the present sittings, but no atMr. Baron Bramwell.

“With every desire to speak respectfully of tention seems to be paid to any complaints.the Judges of the County Courts, it must be The Times. remembered that the gentlemen who at present fill those offices were appointed under peculiar ADDITIONAL CITY COURTS. circumstances. I believe there were not many what we may call independent selections, and I have been made to the City Authorities are

We are informed that the suggestions which own that at present I have not a sufficient confi. dence in them, to be desirous of extending their likely to prevail in regard to the requisite acjurisdiction.

commodation for attorneys attending the trial Her Majesty's Commissioners, well knowing of actions at Guildhall. It is understood that all this, and having known it at all events the architect will provide a room for the ProMr. Baron Bramwell was examined by them, front of the attorneys' seat, as in some of the since the 23rd of May, 1854, the day on which fession, and we would suggest that in fitting up

the new Courts a table should be placed in have kept it back till, as we have already seen, Courts at Westminster, in order that their dono less than 20 augmented salaries distributed among the 60 Judges, two of which, be it cuments and papers may be readily referred to, remembered also, were given amongst the instead of being placed on the floor of the three County Court Commissioners. We

Court and liable to be trodden upon. are now assured politely “of course such things will not happen again,”-where is the guarantee?

UNWHOLESOMENESS OF THE CITY COURTS. It is in no spirit of hostility to well managed At the sitting of the Court at Guildhall, on County Courts, that I now address you ; cheap the 26th February, Lord Campbell said, he had justice bas unquestionably many thousand ad- received a letter, of which, for the sake not vocates far abler, though very few, if I may only of his own health, but for that of the presume to say so, more sincere than I am. counsel, jury, and witnesses, he felt it to be But you and I, sir, know that "cheap justice” his duty to take public notice. The writer and “cheap law” are very different things, stated that he was well acquainted with all the and have too often no connexion with each circumstances which constituted the nuisance other. It is because I wish to see County to this and the adjoining Court, and that to his Courts reformed, that they may not be abo- knowledge the bad smells by which they were lished, and dislike all law making, founded assailed proceeded from an ancient cemetery upon partial or imperfect information, that I over which the Court was constructed. He trouble you with this letter.

stated that there was anciently a chapel at Temple, Feb. 25, 1856. LEGALIS.

Guildhall, with a crypt and burial-ground, in which were deposited the remains of deceased

mayors and aldermen of former times, and that NOTES OF THE WEEK. the offensive smells proceeded therefrom. His

Lordship said he made this statement of what

had come to his knowledge in the discharge of INCONVENIENCE OF THE

his public duty, for if the facts were as stated

the lives of all were in danger. It was known At the Sittings at Nisi Prius, at Guildhall, that in former times the Judge and Jury and

Counsel were sometimes all swept away by the before Lord Campbell and a Special Jury, on gaol fever; but it was to be hoped that nothing Monday last, the Court became insufferably of the kind would now occur to produce such hot and close, arising partly from a want of a result, and that immediate steps would be ventilation, and partly, as it appeared, from the taken to make an inquiry into the subject. escape of foul air into the Court from the lower From The Times. regions.

[Probably the remains of the ancient civic Lord Campbell gave orders that the doors worthies were ages ago reduced to dust and and windows should be opened in order that ashes, but it is not improbable that some recent the air might be changed. But his lordship’s invasion of the sacred soil may have given vent order not being attended to, it became neces- to the pent up effluvia. Doubtless the worthy sary to adjourn the Court until it could be Lord Mayor will see that the nuisance be

promptly removed.-Ed. L. 0.] • Evidence, q. 1313.

NISI

PRIUS

COURTS.

350

Superior Courts : Lord Justice.-V. C. Kindersley.- Queen's Bench,
RECENT DECISIONS IN THE SUPERIOR COURTS.

WHERE
TION REFUSED.-LYING IN PRISON ON
CRIMINAL CHARGE.

EXPENSES OF DEFENCE OF IXDICTMENT

Lards Justices.

will directed, and the residue to W.: Held, In re Palmer, erparle Crabbe and another. in a suit by the plaintiff, on behalf of himFeb. 22, 1856.

sof and the other creditors of the testator, BANKRUPT.-APPEAL

ADJUDICA- against the trustees and W. 10 administer

the estate, that W. was not a necessary

party under the 15 & 16 Vict. c 86, s. 42, A trader, after being taken in custody under

rule 9, and where he had been made a sea ca. sa , and who was still undischarged, parate defendant and had answered sepawas afterwards removed on the coroner's

rately, the bill was dismissed as against warrant on a charge of murder : Quare,

him with costs to be paid by the plaintif. whether this lying in prison was an act of The testator by his will gave all his estate bankruptcy within the 12 8: 13 Vict. c. to certain trustees upon trust, after paying his 106, s. 69?

debis, &c., as therein mentioned, and ihe resiThe Commissioner Balguy having held that it due to a Mr. Welch. The plaintiff filed a bill

was not, refused an adjudication, semble, to administer the estate on behalf of himself that an order of the Commissioner must be and the other creditors of the testator against obtained under s. 14, in order to enable the the trustees, and making Mr. Welch a separate petitioners to appeal for the purpose of ob. defendant and he answered separately. taining an adjudication.

Tripp, for the plaintiff, contended he was a This was an appeal from the decision of Mr. necessary party under the 15 & 16 Vict. c. 86, Commissioner Balyny, of the Birmingham Dis- s. 42, rule 9. trict Court, refusing to adjudicate William Baily for Mr. Welch contrà; Hawkins for Palmer, a surgeon and apothecary, a bankrupt. other parties. It appeared that the trader had been taken into

The Vice Chancellor held that he was an uncustody at the suit of the petitioners under a necessary, party, and dismissed the bill as ca. sa., and that he had been removed under against him, with costs to be paid by the plain. the coroner's warrant on a charge of murder, — tiff. the ca. sa. being still undischarged. The

Court of Queen's Bench. Commissioner having held that this was not a

Regina v. Uitermere. Jan. 12, 1856. lying in prison sufficient to constitute an act of bankruptcy under the 12 & 13 Vict. c. 106, s.

GENERAL HIGHWAY ACT.-RATE TO MEET 69,' and refused an adjudication, this appeal was presented.

FOR NUISANCE.-TITLE OF RATE. Daniel and A. Smi!h in support referred to Ileld, that a rate of 3s. in the pound, signed s. 14, which enacts, that “all appeals from de- by two justices pursuant to a peremptory cisions or orders of the Commissioners shall be mundamus, for the expenses of the defence brought on by way of petition, motion, or spe- of an indictment for a nuisance, which had cial case, subject to any general rule or order been done by agreement of the inhabitants, to be made by the Vice-Chancellor or by the was good under the 5 8 6 W’m. 4, c. 50, s. Lord Chancellor, relating to such appeals.” ill, although it was not entitled as bring De Gex for William Palmer.

an extraordinary rate, notwithstanding s. The Lords Justices said, there was a doubt 29 of the Act. whiether, as there was no adjudication, this This was a rule nisi on the Justices of SoCourt had jurisdiction, and the petition was mersetshire to issue a distress warrant for a accordingly directed to stand over to obtain an rate of 38. in the pound on an inhabitant of the order from the Commisssioner.

parish of Aller, for the purpose of paying the

costs of defending an indictment for a nuisance, Vice-Chancellor Kindersley. which had been done by agreement of the in

Smith v. Andrews, Feb. 23, 1856. habitants of the parish, and for the costs of EQUITY JURISDICTION IMPROVEMENT ACT.

which a rate had been signed, pursuant to a -Creditors' suir. ---PARTIES. --TRUS- peremptory mandamus, by two justices. The A testator gave all his estate to trustees in

" Which enacts, that “in all suits concerntrust, afier paying his debts, 8:c., as his ing real or personal estate, which is vested in

trustees under a will, settlement, or otherwise, Which enacts, that “if any such trader such trustees shall represent the persons benehaving been arrested or commited to prison ficially interested under the trust, in the same for debt, or on any attachment for non-pay- manner and to the same extent as the adminis. ment of money, shall, upon such or any other trators in suits concerning personal estate rearrest or commitment for debt or non-payment present the persons beneficially interested in of money, or upon any detention for debt, lie such personal estate; and in such cases it in prison 21 days, or having been arrested or shall not be necessary to make the persons committed to prison for any other cause shall beneficially interested under the trusts parties lie in prison 21 days after any detainer for debt to the suit; but the Court may, upon consilodged against him and not discharged, every deration of the matter, on the hearing, if it such trader shall thereby be deemed to have shall so think fit, order such persons or any of committed an act of bankruptcy."

them, to be made parties."

TEES.-RESIDUARY LEGATEE.

OBJECTION TO BE TAKEN.

Superior Courts: Queen's Bench.- Common Pleas.

351 question was, whether the rate should hare and that a set-off for nearly 201. was proved, been entitled as an additional rate under the 5 whereupon the plaintiff obtained a verdict for & 6 Wm. 4, c. 50.

41. 145. odd. The Master having taxed the By sect. 29 of this Act it is enacted, that costs on the higher scale, although the Judge “ Every rate shall contain the name of the oc- had not certified, this motion was made for a cupiers,” &c., “and no rate to be levied or rule nisi to review his taxation. assessed as aforesaid shall exceed at any one Hawlins in support; Lush showed cause. time the sumn of 10d. in the pound, or the sum The Court said, that the smaller sum, and of 2s. 6d. in the pound in the whole in any one not the original amount for which the action year: Provided, nevertheless, that with the was brought, was all that the plaintiff recovered, consent of four-fifths of the inhabitants of any and that the costs should be taxed on the lower parish contributing to the highway-rate as- scale: Parker v. Serle, 6 Dowl. P. C. 334, and sembled at a meeting specially called for that the rule would therefore be made absolute.' purpose, 10 days previous notice of the same having been given by the surveyor of the said

Court of Common Picas. parish, the rate to be levied and assessed as aforesaid may be increased to such sum as the

Chester v. Worlley. Jan. 30, 1856. said inhabitants so assembled may think pro

COMMON LAW PROCEDURE ACT, 1854.-INper ;” and by s. 111, that “if the inhabitants

TERROGATORIES IN EJECTMENT.-WHEN of any parish shall agree at a vestry to defend any indictment found against any parish, &c.,

A rule was made absolute for leave to the it shall and may be lawful for the surveyor of plaintiff to deliver interrogatories to the the parish to charge in his account the reason.

defendant under the 17 & 18 Vict. c. 125, able expenses incurred in defending such pro

s. 51, and held that any objection to ansecution, &c., after the same shall have been swer must be made ofter the interrogatories agreed to by such inhabitants at a vestry or are delivered. public meeting as aforesaid, and allowed by This was a rule nisi for leave to the plaintiff two justices of the peace within the division to deliver interrogatories to the defendant in where such higbway shall be; which expenses, this action of ejectment for non-observance of when so agreed to and allowed, shall be paid by such parish out of the fines, forfeitures, See Directions to the Taxing Masters, 7 & payments, and rates authorised to be collecied 8 of Hilary Term, 1853, which direct, that and raised by virtue of this Act: Provided, “7. In all actions on contract, other than cases nevertheless, that if the money so collected and wherein by reason of the nature of the action raised is not sufficient to defray the expenses no writ of trial can by law be issued, where the of repairing the highways in the said parish, sum recovered or paid into Court, and accepted as well as of defending such prosecutions, &c., by the plaintiff in satisfaction of his demand, the said surveyor is hereby authorised to make, or agreed to be paid on the settlement of the collect, or levy an additional rate in the same action, shall not exceed 201. (without costs), manner as the rate by this Act is authorised to the plaintiff's costs as against the defendant be made for the repairs of the highways." shall be taxed according to the lower scale of

The present rate was merely described as allowances in the schedule of costs hereunto an assessment for carrying the 5 & 6 Wm. 4, annexed : Provided, that in case of trial before c. 50, into effect.

a Judge of one of the Superior Courts, or Thring showed cause.

Judge of Assize, if the Judge shall certify on The Court (without calling on Lush in sup- the postea that the cause was proper to be port) said, that the omission in the title of the tried before him, and not before a Sheriff or rate was no objection, as no form was given Judge of an inferior Court, the costs shall by the Act; and made the rule absolute ac- be taxed on the higher scale.” cordingly.

“8. Where in like actions the sum endorsed

on the summons shall be more than 201., but Tongue v. Chadwick. Jan. 28, 1856. the plaintiff fails to recover more than that

sum, and the Judge does not certify as aforeCOSTS, TAXATION MORE THAN 201. AND

said, the plaintiff's costs against the defendant, whether between party and party or as between

attorney and client, shall be taxed as upon a Where an action was brought for more than writ of trial before a Judge of a Court of Record

201. and the claim was reduced by payment where attorneys are not allowed to act as advobefore action and set-off to less than that cates, as hereinafter provided for, but the deamount : Held, making absolute a rule nisi iendant's costs, if any, are to be taxed upon the to review the taxation, that the costs were higher scale; provided, that in cases triable tarable on the lower scale.

before the Sheriff or Judge of an inferior Court, This was an action to recover money due to where the Judge shall reluse to make an order the plaintiff from the defendant, who pleaded for such trial, the Judge may, if he shall never indebted, payment, and set-off

. It ap- think fit, direct at the time of such refusal on peared on the trial before Wightman, J., that what scale the costs of each party shall be the original claim was 811., and that 561. odd taxed, and in default of such direciion ihe costso. had been paid before the action was brought, both parties shall be taxed on the higher scale."

ACTION

OF. WHERE
BROUGHT FOR
LESS RECOVERED.-SET-OFF.

352

Superior Courts : Common PleasExchequer. the covenants of a lease, under the 17 & 18 Atherton and Manisty showed cause against Vict. c. 125, s. 51, which enacts, that “in all the rule. causes in any of the Superior Courts, by order The Court (without calling on H. Hill and of the Court or a Judge, the plaintiff may, with Gray in support) said, that as there was no the declaration, and the defendant may, with reason for supposing the valuation was unfair, the plea, or either of them by leave of the Court or for there being any collusion or fraud, the or a Judge may, at any other time, deliver to rule would be made absolute to enter the verthe opposite party or his attorney (provided dict for the defendant. such party, if not a body corporate, would be liable to be called and examined as a witness

Hutchinson v. Harding. Jan. 30, 1856. upon such matter) interrogatories in writing action BY CREDITOR OF INSURANCE COMupon any matter as to which discovery may be

PANY, WHEREWINDING-UP ORDER UNDER sought, and require such party, or in the case

11 & 12 vict. c. 45.-STAYING PROCEEDof a body corporate any of the officers of any

INGS. such body corporate, within 10 days to answer the questions in writing by affidavit, to be

A rule 'was made absolute on appeal from sworn and filed in the ordinary way; and any

Crowder, J., at Chambers, to stay the proparty or officer omitting without just cause,

ceedings in an action by a creditor of an sufficiently to answer all questions as to which insurance company against which a wind. a discovery may be sought within the above

ing-up order had been obtained under the time, or such extended time as the Court or a

11 & 12 Vict c. 45, where the claim of the Judge shall allow, shall be deemed to have plaintiff on affidavit had been deemed incommitted a contempt of the Court, and shall

sufficient by the Master, who required the be liable to be proceeded against accordingly."

plaintiff's attendance to be examined vifà The questions were, whether interrogatories

voce. could be delivered in ejectment, and whether This was a rule nisi on appeal from Crowder, the defendant was bound to answer as it would J., at Chambers, to stay the proceedings in tend to a forfeiture.

this action by a creditor of the Amazon Life Byles, S. L., showed cause against the rule, Insurance Company, against which a windingwhich was supported by T. Chitty.

up order had been obtained under the 11 & 12 The Court (after taking time to consider) Vict. c. 45. It appeared that the plaintiff had said, that the interrogatories might be deliver- taken in his claim upon affidavit before the ed, and that the defendant should object when Master, who had required his attendance to be the interrogatory was delivered as to answer- examined vivá voce, but that the plaintiff had ing it: Osborn v. London Dock Company, 10 not attended, but had brought this action. Exch. R. 698, and the rule was accordingly Roxburgh showed cause, referring to the 11 idade absolute.

& 12 Vict. c. 45, 8. 73, which enacts, that

“after the first appointment of an official maCourt of Archequer.

nager, no creditor or other person shall, exHernaman and another v. Bowker. Jan. 19, cept so far as the Master shall permit, have 1856.

power to commence or to proceed with any ac

tion against the official manager or against the SHERIFF.--SALE OF GOODS UNDER VALUA

company, or any other person representing the CREDITOR, VA

same, or who is sued as a contributory thereof,

until after proof, or exhibiting or making such Certain gonds were seized under a fi. fa. and proof as he may be able, of his debt or demand

were valued and taken possession of by the before the Master, as hereinafter mentioned ; execution creditor. The debtor afterwards and it shall be lawful for any Judge of the became bankrupt : Held, making absolute Court in which such action shall be pending, a rule nisi to set aside the verdict for the upon summons taken out before him for that plaintiffs, the debtor's assignees, and to purpose, to order that all further proceedings enter it for the defendant (the execution in such action shall be stayed until such proof creditor), that the sale was valid, and they shall have been made or exhibited before the could not recover in trover.

Master." This was a rule nisi to set aside the verdict

Asplund in support. for the plaintiffs, the assignees in bankruptcy The Court said, that the Master had clearly of a debtor, in this action of trover to recorer authority under s. 47, to give directions as to possession of certain goods which had been the mode of proof, and it was not to be allowseized under a fi. fa. at the suit of the defended that the plaintiff should take no notice of ant. It appeared that after the goods had been his requirements, and commence an action. seized under the fi. fu. that the sheriff had given The rule would therefore be made absolute. notice to the defendant, who agreed to take them on a valuation, and took possession of

" Which enacts, that “the Master shall, on them accordingly. The debtor afterwards be- request of any party interested, give certificates came bankrupt, and his assignees sought to under his hand of any decisions, entries, or

other matters which shall be made, done, or recover.

transacted in and about the winding up of any " See Flintcroft v. Fletcher (Exch), ante, company under this Act.”

TION TO EXECUTION
LIDITY OF.

p. 292.

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