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Legal Education.Reviero: M'Neill on the Appellate Jurisdiction of House of Lords. 485 * The wise, the learn’d, who grope their dull way on all. There, as in the last case, an accomBy the dim glimmering light of ages gone."
plishment may be added most elegantly to Who add enigmas to a scholiast, or another the gentleman, and an art acquired most to the infinite meanings of the particle ye. useful to the man of business, at one and No; give the student a paper of English the same time. The advantages of a good prose to translate into Latin,-a paper of plain, perspicuous, and pointed style in Latin prose to turn into English ; and let letters to clients, in drawing up wills, not the first be one of your pieces of elegant briefs, &c., &c., we think to be so obvious English on the revolution of the Heavenly as to require no further comment. We bodies, and do not for the second leave the said, a short time ago, that it was far from common path of Latin literature to find our wish to exalt theory on the ruins of some passage from a hardly known book practice. Some (for we have once heard sufficient in its difficulties to puzzle any of such a supposition) think that the Profesthe examiners.
sion of Solicitor requires no acquaintance We now come to the second proposal, with theory; these would but make the which is closely allied with the noblest lawyer a machine ; on the same grounds, study man can engage in,-the inquiry into we suppose, they hold that a knowledge of the manners, customs, and times of those the anatomy of the human frame and the who before us have passed along the way functions of its various parts would be preof life,-into those events which have judicial to the medical man prescribing for placed us in our present position ; and yet a disease ; but we hold still the contrary, in enforcing the necessity of some know- viz., that minds are not enervated by study, ledge of legal history we are not endeavour- nor intellects clouded by research into the ing to exalt theory at the expense of practice. meaning of the rules they are daily applyCicero somewhere says, that no one ever ing, and that this desiderated automaton of did anything “præclarum” without a sort theirs would but make a poor show when of love for the thing which excited his en- any case deviating from its prescribed deavours. Now this love and interest in course might be placed before it. Lastly, his profession is what we would encourage; we maintain there is room for much more we would lead the tyro to shine by influ- theoretical knowledge than is at present eneing him to love ; we would show him either demanded or encouraged, without that it is not all labour and sorrow, routine necessitating any diminution in the knowand machinery; that fair science has not ledge of practice required to pass the exfrowned on bis legal birth ; that by rising aminee. And how beneficial a thing would towards learning he may leave the drudge it be for the Profession if, beyond a certain behind; and we would inform him that point, this learning were not made comthese “veterum monumenta vivorum” im- pulsory, but the practice lately adopted by prove on a better acquaintance. To how the Bar were copied of giving to volunteers many of the present generation of exa- for more active service to those who will miners is Glanville known ? or Bracton? try for it and deserve it-some distinction which of them have even more than heard or reward. of them ? In what visionary forms do the [We find ouselves amalgamated with anConstitutions of Clarendon, the Statutes of other S. D., and shall therefore for the Northampton, Merton, Marlbridge, appear future subscribe ourselves S-3.] to them? What is their idea of the YearBooks? or the Statute of Quia Emptores ? THE APPELLATE JURISDICTION. or even more modern laws? Yet these have regulated the kingdom, and are famous The Appellate Jurisdiction of the House of Statutes, old Statutes, Statutes of renown.
Lords in uppeals from Scotland, in a But those that ought to be best acquainted Letter to the Lord Chancellor. By with them care not for them; they are
ALEXANDER M.Neill, Esq., Member never pulled from their dusty shelves; no
of the Faculty of Advocates and Barristerpraise is obtained from studying, no dis
at-Law. Butterworths. grace from idly and incuriously passing them by; no bond requires it and no law inserted a communication on the subject of
In a previous Nurnber (March 22) we demands it ; therefore their motto is, – the Appellate Jurisdiction, from Dundee. "prætereo, atque aliis post me inemoranda Mr. M'Neill seems to hold entirely the relinquo.”
same views as our other correspondent ; Thirdly; the necessity of a paper to as. and indeed, with the exception of a few certain the powers of composition--a most Edinburgh lawyers, the opinions to which necessary study to a solicitor-is evident to
486 Review : M'Neill on the Appellate Jurisdiction of the House of Lords. we formerly gave publicity seem to be those bers, wealth, and professional influence, and of the people of Scotland. Our country- what is of far more importance in reference men on the north side of the Tweed are to the Appellate Jurisdiction, in experience, keenly sensible to the truth of the maxim, they greatly excel either, if not both, of the that " a bird in the hand is worth two in the metropolitan bodies. We mention these bush.” They are, as they have every reason facts because we consider the Resolutions to be, perfectly satisfied with the admini- of the Faculty of Procurators of Glasgow stration of justice by the House of Lords entitled to great weight. The following are as it has hitherto been constituted, and they the resolutions adopted by the Faculty of seem to have a perfect dread of any impor- Procurators of Glasgow. tation of Scotch Judges. Mr. M`Neill says
“1. That in the opinion of this Faculty,
great benefit has been conferred on the admi“You have asked my opinion, as to the pro- nistration of justice in Scotland by the appellate posal which has recently been ventilated, of jurisdiction of the House of Lords. calling up a Scotch Judge to assist the House, “2. That much has been done during the in the hearing of Scotch Appeals. I answer last 40 years by that high tribunal towards deat once, but unhesitatingly, that that proposal veloping, and more accurately defining, the is fraught with incalculable mischief. When principles of the Law of Scotland, a result I say at once, you must not suppose, that I which this Faculty in part attributes to the high have only now come to that conclusion for the standing of the Judges, and to the talents and first time. I have pondered over the subject forensic experience of those members of the for years and years—have conversed with my English Bar, who, along with our most dis. brethren on it, in all its bearings, and anxiously tinguished Scotch Counsel, have conducted perused all that I have found written upon it. the arguments. The result is a firm conviction, that this pro- “3. That even the occasional want of famiposal, if carried into effect, would be destruc- liarity on the part of the Judges and English tive of the utility of the House of Lords Counsel engaged in the cause with the peculiScotland as a Court of last resort.”
arities of Scotch Law, has caused a keener And in another part of his pamphlet, he and more searching inquiry into its principles, adds
and elicited, by the very contrast with the
Laws of England, new views of the principles “Let us see how the very specious and ad
involved. captandum 'proposal of calling up a Scotch
“4. That the 'mutual interchange of ideas Judge would work. That judge inust either have given judgment or not in the Court below. consequent on these discussions, which are
widely circulated among professional men by In the former case, so long as human nature means of the published Reports, has already is human, there must necessarily be a bias in prepared the way for a gradual assimilation of favour of his own decision. If the House the laws and practice of the two countries. agreed with him, people would say—' Oh, the House just devolved its jurisdiction on the attempt to dissever the appellate jurisdiction of
“5. That ibis Faculty would deprecate any Scotch Judge, and the case had better never the House of Lords in Scotch cases from its have left Scotland. If the House disagreed other functions, being satisfied that no other with him, similar people would say—' Oh, the tribunal could be constituted which would be House threw the law of Scotland overboard, secure of always commanding the aid of and went on their own English notions. In neither case would the appellate decision give which would possess the same weight with the
professional abilities of the same grade, or satisfaction to the people at large."
public. When Mr. M`Neill published his pam- “6. That, while it would no doubt be expephlet, he was probably not aware that the dient to make some new arrangement to insure Faculty of Procurators of Glasgow had the attendance of a sufficient number of Peers taken up the subject. No public body possessed of judicial experience at the hearing in Scotland is more competent to give an
of each cause, this Faculty do not think that opinion. The inhabitants of Glasgow pay or Barrister being specially appointed to act
any good would result froin a Scotch Judge 200,0001, out of the 300,0001, which an.
as the assessor of the House of Lords in all nually finds its way out of the pockets of appeals from this country. the people of Scotland into the pockets of * 7. That the presence of such an official the Edinburgh lawyers ; and the great would tend to do away with many of the admajority of the appeals from Scotland are vantages before pointed out, and the arrangefrom Glasgow. The Faculty of Procura- ment would be apt to resolve practically into tors of Glasgow, we say advisedly, for we Scotch Bar (of more or less talents or dame),
the review, by a single individual of the know something of them, are not inferior of the decisions of our Scotch Judges. in education, intelligence, or respectability “8. That, with the views now expressed, to either the Faculty of Advocates or the this Faculty do not think it expedient for them Society of Writers to the Signet. In num- to take any part in the discussion now going
Review : M‘Neill on the Appellate Jurisdiction of House of Lords.-Law of Attorneys. 487 on in regard to the appellate jurisdiction of afterwards on the defendant's refusal, he the House of Lords, beyond forwarding a copy filed this bill. of these resolutions to each of the Members
The Master of the Rolls said :of the Committee now sitting in that Right Honourable House."
“In looking through these papers, I have We concur in the views of our Glasgow directed my attention, in the first place, to the brethren, and we trust that effect will be point which is always very material, namely, given to them by the committee of the on whom the burden of proof lies; and what, House of Lords.
in the absence of proof, the Court must con. sider to be the law which regulates the rights
of the parties. LAW OF ATTORNEYS AND SO
“Now, I should entertain no doubt, even if LICITORS.
I had not been confirmed by the two cases of
v. Bainbrigge, 7 Hare, 164 n., that where iwo JOINT RETAINER.-ONUS OF PROOF. solicitors undertake a matter of business on
It appeared that in 1838 the owner of behalf of a client, the same rule would follow the market-place of Easingwold commenced in that, as in any other undertaking where actions against two persons for nonpayment behalf of themselves, or as agents of other
persons carry on a business jointly on of tolls and stallage, and that they and other
It is, in point of fact, a limited inhabitants agreed to bear the expense of partnership for a particular sort of business. defending the
actions, and appointed a com- Assuming nothing to have been said as to the mittee to communicate with an attorney for manner in which the profits were to be dithe purpose. The plaintiff, Mr. Robinson, vided, it appears to me to follow, as a necessary was then retained by the committee to de- consequence of law, that they were to be difend the actions, and he instructed Mr. vided equally between them. And, although Fiddey, his town agent, to enter an appear. himself more than the other, the presumption
one may do more business and have exerted ance, which was accordingly none. The
is, that they are to be equally divided between plaintiff alleged that in June 15, 1838, he them. It appears to me, that if the client haq proposed that some other attorney should gone to Mr. Robinson and Mr. Anderson, and be retained jointly with him, as he was the said, “We wish you to undertake the business relative or professional adviser of several of for us,' and thereupon Mr. Robinson and Mr. the joint owners of the market place, and Anderson had both said, 'We agree to do so,' that the defendant, Mr. Anderson, was con
and nothing had taken place between them as sequently appointed, and that he then com, the necessary consequence would have been,
to the manner in which they were to be paid, municated with Mr. Anderson and informed that after payment of the costs out of pocket, him of the joint retainer and of the previous the net profits made by the business would proceedings, and that Mr. Anderson con- have been divisible equally between them, and sented to act jointly with bim in the defence that neither of them could say to the other, of the actions and to divide the profits I have done more business than you have and equally. This the defendant denied, and am, therefore, entitled to a larger share of stated that it was agreed each should be profits. It was the duty of the party who in
tended that this should not be a partnership paid for the business respectively done. The plaintiff, in 1845, being unwilling amount of business which he did, without par
transaction, and that he should be paid for the to lay out more money, offered to the de- ticipating in that of the other, so to express fendant to relinquish all further participa-himself. tion, upon receiving his costs out of pocket, “The state of the case is, that the clients in and on the defendant not agreeing to this the case, the defendants in the action of Lockhe communicated to the committee the cor- wood v. Wood, went to Mr. Robinson, their sorespondence, who resolved that the defend- licitor, who acted for a little while, and then an ant should proceed. Ultimately the pro- structed by them to associate with himself Mr.
arrangement took place, by which he was in. ceedings were stayed by consent, each party Anderson, as the solicitor to conduct the deto pay their own costs.
fence. He goes to Mr. Anderson, and as far The defendant then delivered to the as I can make out from the evidence, what committee a separate bill of costs for took place between them was in substance 1,0581. 168. 7d., but which did not con- this : he said, “Will you join with me in car. tain any entries as to the payments by Mr. rying on this business ? and Mr. Anderson Fiddey, nor by the plaintiff
. The plaintiff
, said as to any division of profits, or respecting
answered he would, and nothing whatever was in June, 1849, delivered another bill for the remuneration of the parties. That is the 7361. 148., including Mr. Fiddey's items, result which I have arrived at, from the eviand applied for an equal division of the dence of the plaintiff and from his cross-ex. moneys received by the defendant, and amination. If the case rested there, it appears
488 Law of Attorneys.-Law of Costs.- New Queen's Counsel at the Chancery Bar. to me that the presumption of law is, that the Richardson for life, was sold out and applied profits were to be divided equally. But if it is in payment of the costs, and she now filed alleged that a different contract was come to at this claim against the executors and her husthe time, who is it that is required to prove why the person who alleges it, viz., Mr. Ander- band, claiming to have the 961, replaced out son. I have, therefore, looked through the of the residuary estate, alleging, contrary to evidence carefully, and my opinion is, that he the fact, that at the time of the institution of fails in proving any different contract was come the former suit her legacy had not been approto, and the documents appear to me to furnish evidence, to some extent, confirmatory of the priated. It appeared that the executors bad view, that this was a joint business, and that paid over the residue, and that the legacy bad the profits were to be equally divided. been transferred into Court.
“: It appears to me to be impossible to say, that there was that which Mr. Anderson is with costs, to be paid by Mrs. Richardsoo's
The Master of the Rolls dismissed the claim bound to establish, viz., any agreement or any contract between the parties, that each party next friend. Richardson v. Rushbridger, 20 should carry on his own business separately, Beav. 136. and be paid for the business which he himself conducted, totally irrespective of the plaintiff. I think not only that the contract is proved, NEW QUEEN'S COUNSEL AT THE but that in the absence of any evidence, the
CHANCERY BAR. presumption of law would have been in favour of an opposite conclusion, upon the mere fact To the Editor of the Legal Observer. of a joint employment. “I must make a declaration, that the de
SIR.—The recent selection of Mr. Selsyn fence of these actions of Lockwood v. Wood, and Mr. Cairns, M.P., from the list of appliand Lockwood v. Lund, down to the 23rd of cants for the rank of Queen's Counsel, has ex. January, 1846, was a joint employment, and cited considerable attention amongst Chancery that the plaintiff and defendant were interested Barristers, to the power of the Crown, under in the profits, in equal shares and proportions.
"Then direct an account of what is due to which this favour is bestowed on members of both parties upon these transactions.
the Bar. “I must give the plaintiff his costs of so For what object does it exist ? Has it been much of the suit, as is occasioned by the de exercised on this occasion with a due regard fendant disputing the joint liability. But further than that, I shall make no order as to to the public interest, or as regards the Bar, costs, because I am not at all clear that in fairly ? Such are the questions asked. other respects the suit was absolutely neces- It is known that in the list of applicants, sary.” Robinson v. Anderson, 20 Beav. 98.
there were meinbers of the Bar, in standing,
double or nearly double to that of Messts. LAW OF COSTS.
Selwyn and Cairns, and at least equal in all respects to those gentlemen, whether profes
sional experience, legal learning, or private A PURCHASER who had altogether resisted
character be regarded. Long standing united the vendor's right to a decree for a specific Lord Chancellor on this occasion gone for
with those qualifications has, however, with the performance, which he was not entitled to do, was ordered to pay the costs of a suit instituted nothing. Is this consistent with the pablic by the vendor for that purpose, down to the
interests, and is it fair towards the Bar hearing, although the title was not finally com- Crown above referred to exists-is the public
The sole object for which the power in the pleted until after the decree ; but since that
welfare.—That object is two-fold, viz., to se period no costs were given on either side, as each party had mutually claimed what they sistance when necessary, and to provide the
cure to the Crown the best legal advice and aswere not entitled to. Carrodus v. Sharp, 20 Beav. 56.
public with advocates best able, with the exclusive privilege thus bestowed, to conduct for the suitor his cause in open Court.
It is well known to those who are acquainted
with the Chancery Bar, that a large amount of Under a decree in a suit, to which the exe- professional business behind the bar does not de cutors and trustees under a will were alone cessarily qualify the barrister for a like amount of parties, a sum of 96l. consols, part of a le-business when he is called within the bar; and, gacy of 12,000l. consols bequeathed to Mrs. on the other hand, there have been men, with
OP SUIT BY VENDOR FOR SPECIFIC PER
OF CLAIM BY TENANT FOR LIFE FOR PAY
MENT OF COSTS OF SUIT OUT OF RE-
New Queen's Counsel at the Chancery Bar.-Admission of Attorneys: 489 out a first-rate business behind the Bar, who, business as fairly to raise a presumption that when advanced to the rank of Queen’s Counsel the applicant has a knowledge of his profession. have been found well adapted for the peculiar Many barristers in practice have looked forduties of that branch of the Profession. Of ward to becoming Queen's Counsel in due the latter, the present Lord Chancellor is him- course, as an event almost certain—they have self an example. Without qnestioning either believed it would be the means of keeping up the right of the Lord Chancellor to select any their professional income, and have regulated member of the Bar for the rank of Queen's their expenses accordingly. To refuse this Counsel, or the qualifications of Messrs. Sel- rank to such men is to reduce their incomewyn and Cairns, it is fairly open to question it may be, to a state of poverty--and it tends whether the Lord Chancellor, by confining his to discourage those hopes of professional adselection to those two gentlemen, has acted vancement, which are the greatest incentives to with a due regard to the interests of the public. industry and honour in the barrister's earlier
Although the public interest is principally career. It is hoped the Lord Chancellor will concerned, the just expectations of the Bar reconsider the precedent he has established on ought not to be lost sight of. Long standing this occasion. I am, sir, has hitherto been considered as an important
Your obedient servant, ingredient in favour of the applicant, if ac
A BARRISTER. companied with such an amount of professional Lincoln's Inn, April 12, 1856.
ADMISSIONS OF ATTORNEYS.
To whom Articled, Assigned, &c.
E. Jennings, New Boswell Court. Renewed Notices of Admission on the last day of Easter Term, 1856, of Gentlemen who gave Notice of Admission for Hilary Term, 1856, pursuant to the Rule of Court of Hilary
H. Chase, jun., Reading.
T. Johnston, Raymond Street, Islington.
E. W. Clowes, New Buckenham.
North Road; and Cloudesley Square . W. S. Masterman, Clifford's Inn. Faviell, Charles Henry, Crowle
W. Stewart, Wakefield.
Street, Cambridge Square ; and Frome W. C. Cruttwell, Frome.
0. Cheek, Evesham; R. H. Rolls, Banbury. Gregory, Charles, Eyam
E. Lambert, John Street, Bedford Row. Harris, Charles Rice, Tredegar
J.G. H. Owen, Pontypool. Hyett, John Charles, 12, Mitford Road,' A. Henderson, Bristo1; w. Williams, Hanley; Hornsey Road
J. B. Smith, Shelton; C. E. Pownall, Ken
sington. Jones, John Cox, 26, Bedford Place, Russell
Sq.; Cheltenham and Lear ton Priors . A. Haymes, Leamington Priors.
Chancery Lane; A. Mayhew, Carey Street.