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Legal Education.-Review: M'Neill on the Appellate Jurisdiction of House of Lords. "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 encing 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 his 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" improve on a better acquaintance. To how many of the present generation of examiners is Glanville known? or Bracton? which of them have even more than heard of them? In what visionary forms do the Constitutions of Clarendon, the Statutes of Northampton, Merton, Marlbridge, appear to them? What is their idea of the YearBooks? or the Statute of Quia Emptores? or even more modern laws? Yet these have regulated the kingdom, and are famous Statutes, old Statutes, Statutes of renown. But those that ought to be best acquainted with them care not for them; they are never pulled from their dusty shelves; no praise is obtained from studying, no disgrace from idly and incuriously passing them by; no bond requires it and no law demands it; therefore their motto is, "prætereo, atque aliis post me memoranda relinquo."
Thirdly; the necessity of a paper to ascertain the powers of composition-a most necessary study to a solicitor-is evident to
pulsory, but the practice lately adopted by the Bar were copied of giving to volunteers for more active service to those who will try for it and deserve it—some distinction or reward.
[We find ouselves amalgamated with another S. D., and shall therefore for the future subscribe ourselves S-x.]
THE APPELLATE JURISDICTION.
The Appellate Jurisdiction of the House of Lords in appeals from Scotland, in a Letter to the Lord Chancellor. By ALEXANDER M'NEILL, Esq., Member of the Faculty of Advocates and Barristerat-Law. Butterworths.
IN a previous Number (March 22) we inserted a communication on the subject of the Appellate Jurisdiction, from Dundee. Mr. M'Neill seems to hold entirely the same views as our other correspondent; and indeed, with the exception of a few Edinburgh lawyers, the opinions to which
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
"You have asked my opinion, as to the proposal which has recently been ventilated, of calling up a Scotch Judge to assist the House, in the hearing of Scotch Appeals. I answer at once, but unhesitatingly, that that proposal is fraught with incalculable mischief. When I say at once, you must not suppose, that I have only now come to that conclusion for the first time. I have pondered over the subject for years and years have conversed with my brethren on it, in all its bearings, and anxiously perused all that I have found written upon it. The result is a firm conviction, that this proposal, if carried into effect, would be destructive of the utility of the House of Lords to Scotland as a Court of last resort."
And in another part of his pamphlet, he
"Let us see how the very specious and ad captandum 'proposal of calling up a Scotch Judge would work. That judge must either have given judgment or not in the Court below. In the former case, so long as human nature is human, there must necessarily be a bias in favour of his own decision. If the House agreed with him, people would say—'Oh, the House just devolved its jurisdiction on the Scotch Judge, and the case had better never have left Scotland.' If the House disagreed with him, similar people would say- Oh, the House threw the law of Scotland overboard, and went on their own English notions.' In neither case would the appellate decision give satisfaction to the people at large."
"1. That in the opinion of this Faculty, great benefit has been conferred on the administration of justice in Scotland by the appellate jurisdiction of the House of Lords.
"2. That much has been done during the last 40 years by that high tribunal towards developing, and more accurately defining, the principles of the Law of Scotland, a result which this Faculty in part attributes to the high standing of the Judges, and to the talents and forensic experience of those members of the English Bar, who, along with our most distinguished Scotch Counsel, have conducted the arguments.
"3. That even the occasional want of fami
liarity on the part of the Judges and English Counsel engaged in the cause with the peculiarities of Scotch Law, has caused a keener and more searching inquiry into its principles, and elicited, by the very contrast with the Laws of England, new views of the principles involved.
"4. That the "mutual interchange of ideas Consequent on these discussions, which are widely circulated among professional men by means of the published Reports, has already the laws and practice of the two countries. prepared the way for a gradual assimilation of
5. That this Faculty would deprecate any the House of Lords in Scotch cases from its attempt to dissever the appellate jurisdiction of other functions, being satisfied that no other tribunal could be constituted which would be secure of always commanding the aid of which would possess the same weight with the professional abilities of the same grade, or public.
"6. That, while it would no doubt be expedient to make some new arrangement to insure the attendance of a sufficient number of Peers possessed of judicial experience at the hearing of each cause, this Faculty do not think that or Barrister being specially appointed to act any good would result from a Scotch Judge
as the assessor of the House of Lords in all appeals from this country.
When Mr. M'Neill published his pamphlet, he was probably not aware that the Faculty of Procurators of Glasgow had taken up the subject. No public body in Scotland is more competent to give an opinion. The inhabitants of Glasgow pay 200,000l. out of the 300,000l. which annually finds its way out of the pockets of the people of Scotland into the pockets of the Edinburgh lawyers; and the great majority of the appeals from Scotland are from Glasgow. The Faculty of Procurators of Glasgow, we say advisedly, for we know something of them, are not inferior in education, intelligence, or respectability "s. 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
7. That the presence of such an official would tend to do away with many of the advantages before pointed out, and the arrangement would be apt to resolve practically into Scotch Bar (of more or less talents or name), the review, by a single individual of the of the decisions of our Scotch Judges.
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 of the Committee now sitting in that Right Honourable House."
We concur in the views of our Glasgow brethren, and we trust that effect will be given to them by the committee of the
House of Lords.
LAW OF ATTORNEYS AND SO-
JOINT RETAINER.-ONUS OF PROOF.
The Master of the Rolls said :
"In looking through these papers, I have directed my attention, in the first place, to the point which is always very material, namely, on whom the burden of proof lies; and what, in the absence of proof, the Court must consider to be the law which regulates the rights of the parties.
"Now, I should entertain no doubt, even if I had not been confirmed by the two cases of Webster v. Bray, 7 Hare, 159, and M'Gregor v. Bainbrigge, 7 Hare, 164 n., that where two 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 two persons carry on a business jointly on of tolls and stallage, and that they and other persons. 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 done. 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 conand 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 him 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 inpaid for the business respectively done. tended that this should not be a partnership transaction, and that he should be paid for the amount of business which he did, without participating in that of the other, so to express himself.
The plaintiff, in 1845, being unwilling to lay out more money, offered to the defendant to relinquish all further participation, upon receiving his costs out of pocket, and on the defendant not agreeing to this he communicated to the committee the correspondence, who resolved that the defendant should proceed. Ultimately the proceedings were stayed by consent, each party to pay their own costs.
The defendant then delivered to the committee a separate bill of costs for 1,058l. 168. 7d., but which did not contain any entries as to the payments by Mr. Fiddey, nor by the plaintiff. The plaintiff, in June, 1849, delivered another bill for 7361. 148., including Mr. Fiddey's items, and applied for an equal division of the moneys received by the defendant, and
"The state of the case is, that the clients in the case, the defendants in the action of Lockwood v. Wood, went to Mr. Robinson, their solicitor, who acted for a little while, and then an structed by them to associate with himself Mr. arrangement took place, by which he was inAnderson, as the solicitor to conduct the defence. He goes to Mr. Anderson, and as far as I can make out from the evidence, what took place between them was in substance this: he said, 'Will you join with me in carrying on this business?' and Mr. Anderson said as to any division of profits, or respecting answered he would, and nothing whatever was the remuneration of the parties. That is the result which I have arrived at, from the evidence of the plaintiff and from his cross-examination. If the case rested there, it appears
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 it? 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 had view, that this was a joint business, and that paid over the residue, and that the legacy had the profits were to be equally divided. been transferred into Court.
The Master of the Rolls dismissed the claim with costs, to be paid by Mrs. Richardson's Richardson v. Rushbridger, 20
"It appears to me to be impossible to say, that there was that which Mr. Anderson is bound to establish, viz., any agreement or any contract between the parties, that each party next friend. 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 presumption of law would have been in favour of an opposite conclusion, upon the mere fact of a joint employment.
"I must make a declaration, that the defence of these actions of Lockwood v. Wood, and Lockwood v. Lund, down to the 23rd of January, 1846, was joint employment, and that the plaintiff and defendant were interested in the profits, in equal shares and proportions. "Then direct an account of what is due to both parties upon these transactions.
"I must give the plaintiff his costs of so much of the suit, as is occasioned by the defendant disputing the joint liability. But further than that, I shall make no order as to costs, because I am not at all clear that in other respects the suit was absolutely necessary." Robinson v. Anderson, 20 Beav. 98.
LAW OF COSTS.
OF SUIT BY VENDOR FOR SPECIFIC PER
A PURCHASER who had altogether resisted the vendor's right to a decree for a specific performance, which he was not entitled to do, was ordered to pay the costs of a suit instituted by the vendor for that purpose, down to the hearing, although the title was not finally completed until after the decree; but since that period no costs were given on either side, as each party had mutually claimed what they were not entitled to. Carrodus v. Sharp, 20 Beav. 56.
OF CLAIM BY TENANT FOR LIFE FOR PAY-
Under a decree in a suit, to which the executors and trustees under a will were alone parties, a sum of 961. consols, part of a legacy of 12,000l. consols bequeathed to Mrs.
To the Editor of the Legal Observer.
SIR. The recent selection of Mr. Selwyn and Mr. Cairns, M.P., from the list of applicants for the rank of Queen's Counsel, has excited considerable attention amongst Chancery Barristers, to the power of the Crown, under which this favour is bestowed on members of the Bar.
For what object does it exist? Has it been exercised on this occasion with a due regard to the public interest, or as regards the Bar, fairly? Such are the questions asked.
It is known that in the list of applicants, there were members of the Bar, in standing, double or nearly double to that of Messrs. Selwyn and Cairns, and at least equal in all respects to those gentlemen, whether profes sional experience, legal learning, or private character be regarded. Long standing united with those qualifications has, however, with the Lord Chancellor on this occasion gone for nothing. Is this consistent with the public
interests, and is it fair towards the Bar? The sole object for which the power in the Crown above referred to exists-is the public welfare. That object is two-fold, viz., tɔ secure to the Crown the best legal advice and assistance when necessary, and to provide the 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 professional business behind the bar does not necessarily qualify the barrister for a like amount of business when he is called within the bar; and, on the other hand, there have been men, with
New Queen's Counsel at the Chancery Bar.—Admission of Attorneys:
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 questioning 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 ingredient in favour of the applicant, if accompanied with such an amount of professional
Your obedient servant,
Lincoln's Inn, April 12, 1856.
ADMISSIONS OF ATTORNEYS.
Clerks' Names and Residences
Keetley, George Taylor, 17, Gough Square;
On the last day of Easter Term,
W. H. Dickson and N. Overbury, Frederick's
W. T. Shaw, Derby; J. W. Hickin, Serjeants'
1856, pursuant to Judge's Order.
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 Term, 1853.
Baxter, Stafford Chas., 9, Westbourne Villas
Bompas, William Carpenter, 19, Coleman St..
Brunskill, Jonathan Ward, 39, Huntingdon
Clowes, Arthur Tallent, 2, Lower Calthorpe
Edmonds, William, 87, Herbert Street, New
Gale, William Godwin, 14, Upper Porchester
Gough, Charles Selwyn, 9, Bedford Street,
Gregory, Charles, Eyam
Harris, Charles Rice, Tredegar
R. M. Baxter, Lincoln's-Inn-Fields; S. B. Somerville, Lincoln's-Inn-Fields.
P. S. Coxe, Coleman Street.
H. Chase, jun., Reading.
W. Bleaymire, Penrith; T. Johnston, Raymond
E. W. Clowes, New Buckenham.
W. S. Masterman, Clifford's Inn.
W. Stewart, Wakefield.
W. C. Cruttwell, Frome.
O. Cheek, Evesham; R. H. Rolls, Banbury.
J. G. H. Owen, Pontypool.
Hyett, John Charles, 12, Mitford Road, A. Henderson, Bristol; W. Williams,
J. B. Smith, Shelton; C. E. Pownall, Kensington.
A. Haymes, Leamington Priors.