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Metropolitan and Provincial Law Association.
of the Act made it necessary that some atten- believed he might claim for the Metropolitan tion should be paid to it, as it pointed out a and Provincial Law Association that the most mode of procedure by which judgment may be important alterations which had taken place in obtained against defendants at the end of 12 Equity during the last few years were the redays, and execution then issue without the de-sult of suggestions which had been made by fendant having an opportunity of entering into them. In looking over some old papers one any discussion on the subject-matter, unless he day lately, he happened to lay hold of one can persuade the Judge that he has a right so showing that in 1850 a Bill was brought in by to do. But there was another material omis- Lord Brougham, giving summary jurisdiction sion. There was no provision whatever for to the Masters Extraordinary of the High costs of proceedings except in case of judg Court of Chancery; and now he had got the ment. There is a form given for the writ, and draft of a proposed Bill having the same oba form for an indorsement, showing that the ject in view, and prepared by the Metropolitan amount claimed is the amount of principal, and Provincial Law Association; being, inwith interest upon the bill, and that upon the deed, one that was actually put into the hands payment of this, all proceedings are to be of Lord Brougham, the Lord Chancellor, and stayed. So that if a demand be made for the Master of the Rolls, as long back as Febcosts, it would be a demand not authorised by ruary, 1850. If the two Acts were looked at the proceedings, and the Judge had no power it would be found that the great alterations to make any alteration by way of remedy. which had taken place in giving more sumThis was an unfortunate instance of the way in mary jurisdiction to the Court of Chancery, in which Acts of Parliament were now passed-giving power to dispose of inatters by petition brought in by one, and altered by another, until they were full of ambiguities and contradictions.
and also in chambers, were in point of fact the result of suggestions made by the Committee of the Association. This alone ought to dispose of the assertion that the Protession were chary of changes.
With regard to proceedings in Equity, and the costs belonging to them, the Profession was in a far different position. By the various With respect to the alterations made as reActs which had been passed, completely garded plaintiff and defendant, he could not changing the mode of proceeding in nearly help feeling that they were really oppressive three-fourths of the matters which came be- upon the defendant. It was true the proceedfore the Courts, not only had they given new ings were more expeditious, but he thought as modes of procedure, but they had abolished regarded the defendant they were too expethe old ones, and inasmuch as there was a ditious, as they did not give him the opportariff for the old proceedings, this they had re-tunity of correcting any oversight. A writ is tained without furnishing a scale for the new served, and unless he appears to that writ and proceedings; or at least no mention of these takes the necessary proceedings, a judgment at was to be found in any scale which had been once issues against him, for which he can obissued. When the Act passed, it was provided tain no redress. Now, every gentleman prethe Judges should have the power of doing so; sent knew that, not once or twice, but conbut unfortunately for the Profession, the Act tinually did it happen, that defendants were was in force without the tariff which should served with writs on which, from some accident have accompanied it having ever made its ap- or other, they were not able to act, and suffered pearance. The attention of the Judges had accordingly, though they might have a good been called to the subject by the Metropolitan defence to it. This hardship the list Act and Provincial Law Association, and also by carried still farther, as it provided that the writ the Incorporated Law Society, with whom they should be served and the party appear in 12 had gone hand in hand in this matter. The days-not saying whether the 12th day was result was, that inquiries having been made inclusive or exclusive, such was the muddle upon the subject, and a number of individuals made by the person who had drawn it up-and examined, the Lord Chancellor requested two that within this time the party must get leave of the Vice-Chancellors to take the matter up, to defend, either by bringing the money into and they along with two of the Masters, one at Court or convincing the Judge that he has a Equity and one of Common Law, had express-good defence. There is no power given to a ed themselves satisfied that an alteration must Judge to enlarge the time in the Act expressed, take place. This alteration was expected be- and therefore it was a hardship upon the defore last vacation, but unfortunately the Judges fendant, as it put him in a position which were going out of town, and the vacation took would in many cases work the greatest inplace without its being made. The Committee justice. of the Association, however hoped that in the course of the ensuing month the revised scale would be in operation. It had been impressed upon the Vice-Chancellors that the operation of the scale should be retrospective; but whether this would be so or not, he (the Chairman) could hardly say. There was an impression abroad that attorneys were averse to any alteration in the old modes of proceeding; but he
In Equity the same mischief does not occur, because, though the times fixed are much shorter than before, yet there is a discretion left with the Judges to allow farther time, and the defendant is not placed in the position of having a decree issued against him in.mediately, merely from his inability within the time to do what was necessary. During these discussions before the Judges there had arisen a question
Metropolitan and Provincial Law Association.
town, acting for different interests, and not always speaking their own sentiments when they did come into contact, to meet together with one common object in view. It was certainly cause for congratulation that meetings like that should tend to bring the Profession together, with no antagonistic views, and with the knowledge that there was no client behind their backs urging them to any particular course; and he hoped that the meetings of that society which had been held, and which he trusted they would continue to hold, would have to a very great extent the effect of uniting them more closely than they had been.
ON THE IMPROVEMENT OF THE PROFESSION.
as to the mode in which attorneys should be remunerated. It had been a favourite axiom with some of the leading men of the Profession that a man ought to be paid for his labour, and not with reference to anything else that the quantum of time occupied ought to be the test, and not the number of sheets of paper forming the result, or the amount of the purchasemoney. Some thought it might be done by leaving it to the Masters to say what is the amount of labour, and to what extent a party ought to be remunerated; while others suggested that it should be left to the tariff of fees. He (the Chairman) would not venture to offer any opinion on the subject, because he knew it was one that had engaged a vast deal of consideration, and was a subject, moreover, too Mr. Cookson in his paper remarked, that lengthy for discussion on that occasion, and the Profession of an attorney and solicitor was more fitted for discussion privately. The main necessary to the public, and existed for the observation made regarding it was, that if at-public benefit. It was a Profession of great torneys were paid by lengths they would in- antiquity, and from an early period in the hiscrease the lengths for a purpose. He need tory of England it had been recognised as one scarcely say that he believed this statement to of our indispensable institutions. On the attorbe perfectly groundless. In Scotland the ney in a great degree depended not only the question was mooted years ago, and there a establishment of right and the successful replan was devised, embracing scales having re-sistance of wrong, but the maintenance of harference partly to length and partly to amount. mony and good feeling between friends and For conveyancing, the plan might to a certain extent succeed, even though they all knew that the amount of labour in investigating a title did not depend on the amount of the purchasemoney, for though undoubtedly the more the purchase-money the more they would find it necessary to look into the title, yet the labour and responsibility of investigating a title was pretty much the same in a small as a large title, seeing that all depended on the number of questions that might have arisen upon it and been dealt with from time to time.
neighbours, and the peace and happiness of families. Under these circumstances, he asked why it was that the public held towards the Profession, as a body, the language of disparagement and distrust? Why, even in an enlightened assembly like the House of Commons, was the tone towards the Profession at large so unsatisfactory? Why were Messrs. Dodson and Fogg, or Messrs. Quirk, Gammon, and Snap, looked upon as fair specimens of the whole? It was probable that many circumstances had combined to produce this result.
The attorney who was steadily, conscientiously, and successfully labouring in the discharge of his onerous and important duties, winning and inviting the confidence of his clients and the respect of his brethren, might pass through the whole of his professional life without ever appearing before the public, except occasionally as the solicitor for the sale of an estate. The public knew nothing of him. But if an attorney had been guilty of any misconduct, his delinquencies did not fail to come before the public. They were reported in the public prints, and, being commented on with just severity, the public mind was thereby led to contemplate the attorney in his most unfavourable aspect.
Speaking prospectively of the Profession, a few words as to the offices for which their branch of it was not considered eligible, might not be out of place. It was the other branch of the Profession that now obtained nearly all appointments, not merely on the bench and in the Superior Courts, but in other departments of the public service. If they turned back to times within the memory of gentlemen then present, when the number of barristers was some two or three hundred, they would find that then few of the body had any appointments except those strictly connected with the law. But of late years the practice had crept in of providing in Acts of Parliament that those who should fill the offices thereby created were to be barristers of a certain number of Another cause of the unpopularity of the years standing, and thus solicitors had been Profession was, its supposed opposition to systematically excluded from appointments, legal reforms. This, he contended, was for which their habits and studies peculiarly unfounded, and unjust when applied to the fitted them. The reason of this was that such Profession at large, as no body of men had appointments were generally in the gift of the proved itself more zealous or disinterested Judges. Attorneys had it in their power to in advocating and pressing amendments in prevent this and other grievances, if they could the law. Its struggles for reforms in the secure unity amongst themselves; but it unfortunately happened that the very nature of their Profession brought them frequently into opposition with one another, making it hardly possible for gentlemen residing in the same
practice of the Court of Chancery, in the Courts of Common Law, and in the Laws affecting the Transfer of Property, had been constant and untiring, as the records of the various Law Societies abundantly testified.
Metropolitan and Provincial Law Association.
As a means of raising the character of from without; they should inflict both profesthe Profession, and increasing its usefulness, sional and social punishment upon any memthe writer noticed the efforts of the Law So-ber of the Profession proved guilty of malcieties, which had already conferred great practice, and they should continue to resist advantages. Prior to the establishment of and repel all injurious attacks upon the Prothe Incorporated Law Society, there was no fession from without. Nor should they be examination worthy of the name of appli- contented with upholding and maintaining the cants for admission on the roll of attor- actual rights and character of the Profession, neys. Since its establishment, and by the ex- but they should bring their common experiertions of the Profession, a system of exami- ence to bear upon the noble object of raising nation had been introduced, by which the the entire status of the body; improving and attainments of candidates for admission had rendering uniform throughout the country probeen ascertained. The examination embraced fessional usage; giving a courteous and liberal five different branches of the law, viz., Common tone to professional intercourse, and both as a Law, Equity and Conveyancing, Bankrupt means to these ends, and for its own sake, Law, and Criminal Law. That in the Common raising the standard of professional education. Law was conducted by one of the Masters of The adoption of such a system, he contended, the Common Law Courts, and the others by would be productive of important results; they members of the Profession, annually appointed would have attorneys and solicitors placed by the Judges. The beneficial effects of these upon every law commission, and the heads of examinations were enlarged upon at some the Profession would become the regular adlength, and the importance of fixing a higher visers of the Legislature upon all questions of standard of general education was strongly law reform. He believed that a change for insisted upon as the best means of raising the character of the Profession, and removing the unfavourable impression that at present prevailed.
Mr. Bulmer, of Leeds, in his paper, noticed that the Legal Profession was divided into two classes :-advocates who had no immediate connection with their clients, and who number about one-fourth of the whole number; and attorneys and solicitors. To the former class every office of distinction and emolument was given, and they were at the same time exempt from responsibility, whether arising from error of judgment or ignorance; while the latter class, though excluded from all offices of distinction and emolument, was responsible to their clients. This division of legal practitioners he regarded as a great injustice to the attorney and solicitor, being calculated to deter men of talent and ability from entering its ranks, while advantage was taken of the division by men of no talent, but possessed of family influence, who entered as barristers merely for the purpose of securing an appointment confined to barristers of so many years' standing, which produced the anomaly so often witnessed of persons sitting to administer laws of which they were entirely ignorant. The writer advocated the abolition of the distinction in class between barristers and attorneys, and the throwing open of all offices to the whole class.
the better in this respect was gradually but surely taking place; and the reasons why the change was not yet complete and satisfactory were first, that until recently they had the character of being hostile to all changes in law, whether improvements or not; and secondly, that they were an unorganised body, and had no acknowledged organ in which to store up their experience, and by means of which they might express their opinion. The former objection the writer repudiated, and pointed out a remedy for the latter evil in the support of such an institution as the Metropolitan and Provincial Law Association.
A discussion ensued on these three papers as to the best mode of extending the usefulness of the Association, the general opinion expressed being that this could only be secured by members exerting their personal influence, each in his own locality, and that the mere circulation of printed appeals was of no use whatever. It was thought, however, that if the papers read at the meeting were printed for circulation, their important character would excite an interest in the Profession generally, and lead to a large accession of members. As another means of extending the Society's influence, Mr. Ryland suggested that in each town the members should meet together for the purpose of discussing the minutes of the London Committee; and Mr. Sudlow of Manchester mentioned that in the northern district the members formed themselves into a Committee, and Mr. W. Shaen read a paper "On the organ- were in the habit of sending up a deputation isation of the Profession, as it ought to be, and to the London meetings when important quesas it is." The writer pointed out at great tions were to be discussed, communicating the length the advantage which would arise not result to subscribers in the district on their only to themselves but to the public generally, return. The Committee canvassed for memif the Legal Profession were to combine to-bers and received subscriptions, one-fourth of gether to secure two classes of objects, the the latter being retained for the expense of first of which might be called defensive, and the local management and deputations, and the second progressive. They should defend themselves from dangers arising from within their own body, and from attacks directed against it
other three-fourths remitted to the general Committee in London. This organization, it was thought, might be extended to the midland
Law of Costs.-Law of Evidence.
LAW OF EVIDENCE.
and other districts. However, no definite resolution or recommendation was the result of the discussion, if we except the hope expressed that each individual belonging to the ADMISSION AS WITNESS OF WIFE OF PARTY Society would exert himself to secure an increase in the number of its members.
In our next Number, we shall report, as fully as possible, the able papers of Mr. Lowndes, on the defects in the Law of Debtor and Creditor; of Mr. A. Ryland, on the consolidation of the Statutes; of Mr. W. Morgan, on the Reformatory Laws; and of Mr. R. Caparn, on objectionable conditions of sale:—all of which were followed by in teresting discussions, the purport of which we shall endeavour to set forth.
LAW OF COSTS.
UNDER COUNTY COURTS' ACTS.
A WRIT was issued in the Court of Queen's Bench to recover 21. 8s. 8d., and on the trial before the Undersheriff of Montgomeryshire, in April, 1851, the plaintiffs obtained a verdict for 13s. 3 d., and the Undersheriff refused to certify for costs under the 13 & 14 Vict. c. 61, s. 12. An application was made to Coleridge, J., at Chambers, on June 11, under s. 13, when his lordship indorsed "no order" the summons, on the ground, as it appeared, that less than 40s. having been recovered, the plaintiffs were precluded from recovering costs by Stat. 43 Eliz. c. 6, s. 2, although a concurrent jurisdiction was proved. On January 28, 1852, the plaintiffs moved for and obtained a
rule nisi for the allowance of their costs.
Crompton, J., said :-" Under Stat. 13 & 14 Vict. c. 16, s. 13, plaintiffs have the option of applying for costs, either before this Court, or before a Judge at Chambers. They must make their election; and if they elect to go before a Judge at Chambers, any subsequent application had after his decision, is by way of appeal, and as was decided in Orchard v. Moxsy, 2 E. & B. 206, cannot be made after so long a time as has elapsed in the present In Asplin v. Blackman, 7 Exch. 386, the application was made to the Court in the first instance, the Judge at Chambers having adjourned the case thither." The rule was therefore discharged. Meredith v. Gittens, 18 Q. B. 257.
On the trial of an action at the Sittings at Westminster, Erle, J. admitted the evidence of the defendant's wife, who was called as a witness, and a rule nisi was therefore obtained for a new trial.
Lord Campbell, C. J., said "I regret to be obliged to say that, in my judgment, the rule must be absolute; for my private opinion is, that it would be an improvement in the law to admit the testimony of married persons, for or against each other, subject to some restrictions. I think they ought not to be permitted to disclose confidential communications, or to criminate each other: but, subject to limitations, I think that the admission of their testimony would forward the ends of justice. However, I am now to declare what the law is; and for that purpose I must look to the Statute as it has received the Royal Assent. I cannot take into consideration the history of the bill, or speculate on the intentions of those who promoted or altered it, but must look to the Act Lord Denman's Act (6 & 7 Vict. c. 85), the as it is. Now, it is quite clear, that before wife could not be called for or against her husband. When the issue was between strangers, the husband and wife might be called, though they contradicted each other, even to the extent to which it was carried in Annesley v. Earl of Anglesey, 17 How. St. Tr. 1276; but where the husband himself was the party the wife could not be called for or against him. One reason given by Lord Coke in Co. Litt. 6 b., and adopted by Lord Hardwicke (Barber v. Dixie, Ca. K. B. Temp. Hardwicke, 264), is the preservation of the peace of families. Such being the law, and one of the reasons for it, Lord Denman's Act contained an express provision that that Act should not render admissible parties to the record, or their husbands or wives. Stat. 14 & 15 Vict. c. 99, does not, as I think, either expressly or impliedly admit the testimony of the wife, which was before inadmissible. Section 1 repeals a part only of the proviso in Lord Denman's Act; but, had it repealed the whole of that proviso, the case of the wife could not be within the purview of the Act, which was pointed only at objections on the ground of interest. The enabling clause of Stat. 14 & 15 Vict. c. 99, is sect. 2, which certainly does not expressly admit the wife of
Law of Evidence.-Exclusion of Solicitors from the Bench of Magistrates.
the party; but it is urged that it does so im pliedly, inasmuch as the wife and the husband are one person. But the maxim cannot be understood in this sense. It might as well be said that under a ca. sa. directed against the husband the wife might be taken in execution, because she and the husband were one.
to magisterial business, bringing to it at least as much ability as any of his brother magistrates, together with a large amount of legal readers whether they consider it advisable that knowledge and acumen. We put it to our men like Mr. Tottie and Mr. John Hope Shaw should be excluded from the Bench; and to the magistracy, whether they do not derive "Stress is laid on sect. 3, where it is enacted associates. We know well that the gentleman valuable assis ance from the presence of such that the husband and wife shall not be com- last-named is frequently consulted by his petent or compellable to give evidence against brethren in the commission, even upon cases each other in any criminal proceeding. If there which have not come directly before him, and were such language as left it doubtful whether willing to concede that an attorney appointed that his advice is generally followed. We are the construction of the Act was such as to to the office of magistrate ought not to pracadmit the evidence of the wife, this would tise in sessions' business arising within the afford an argument in favour of that construc- district for which he is appointed, but it is well tion; but I cannot think it is sufficient by im-mended by their fellow-townsmen as fit persons known that those attorneys who are recomplication to make them admissible in other than criminal proceedings. Such has been the opinion of Lord Truro (Percival v. Caney, Chan., Jan. 26, 1852), and of the Court of Exchequer (Barbut v. Allen, 7 Exch. 609). If I entertained a different opinion it would be my duty to express it, until the decision of a higher Court set me right; but I agree with them."
Wightman and Crompton, J.J., concurred; dissentiente, Erle, J. Stapleton v. Crofts, 18 Q. B. 367.
EXCLUSION OF SOLICITORS
BENCH OF MAGISTRATES.
WE last week inserted in our columns the able Report of the Yorkshire Law Society on the determination of the Home Secretary to exclude practising solicitors from the Commission of the Peace; and we now extract the following remarks from the Leeds Mercury :"We have just heard with surprise and regret, that the Lord Chancellor refuses to appoint solicitors as magistrates in cities and boroughs, although the Legislature sanctions such appointments, and has expressly declared solicitors to be eligible. The unmerited slur thus thrown upon members of this branch of the Legal Profession is the more inexcusable, because, until very lately, solicitors were appointed magistrates just in the same manner as their fellow citizens, and we believe that no complaint has ever been made against the conduct of the gentlemen so appointed. There are two gentlemen in the Profession, who are also in commission of the peace for the borough of Leeds, and although one of them has not taken his place upon the Bench for some years, owing to his advanced age, the other has for a long period devoted a great portion of valuable time
to be put in the commission do not generally practise at sessions. It certainly is no reason for excluding all attorneys from the magistracy, that some of them have sessions' practice. The more sensible rule would be, and we believe it would meet the wishes of the Profession, that all attorneys who are in the commission of the peace should be excluded from practising at the sessions of the district for which they are magistrates. The plan at present adopted by the Lord Chancellor is not merely obnoxious to the Profession, but deprives the public of the services of a class of men peculiarly well fitted for the important duties of the magistracy."
We particularly regret to hear that Mr. Hope Shaw has felt it to be his duty to withdraw from the Leeds magistracy, as appears from the following announcement in the Leeds Mercury:
"We regret to learn that John Hope Shaw, Esq., one of the Leeds Magistrates, has announced his intention to retire from the Bench. Mr. Shaw, who is also an Alderman of the borough, has made known his intention in a letter to the Town Clerk (a copy of which has also been received by the Clerk to the Justices). In this letter he states, at some length, the reasons which have induced him to resolve upon resigning his office as an Alderman of the borough at the earliest practicable period, namely, the 9th November next year, and also, at the same time to retire from the Bench, Those reasons are partly of a public and partly of a private nature; but as the letters cannot be regarded as public until the one sent to the Town Clerk shall have been read to the Council, on the 9th proximo, we will not refer to their contents further than to say that among the causes of Mr. Shaw's resignation is the refusal of the present Lord Chancellor and his predecessor to place upon the commission of the peace practising attorneys. This refusal conveyed such an imputation upon that branch of the Legal Profession to which Mr Shaw belongs, that he would, we believe, have retired