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of such judgments, and have been obliged to pay the same in consequence of their having inadvertently taken sureties who were proved to be insolvent when so taken.
And that, from time whereof, &c., there of right have been, and still of right ought to be, certain clerks or attorneys of the said Court, not exceeding four in number; and that, from time whereof, &c., the said clerks or attorneys, not exceeding four in number as aforesaid, have enjoyed the exclusive right of practising in the said Court; which right has not ever been questioned until the time when such application was made by the said W. H. Ashurst to be admitted as in the said writ mentioned. And that the repertories and records of the said Court, and also the journals of the corporation of the said city of London, have been searched and examined, and that various ancient entries have been found in the said repertories, records, and journals, setting forth the duties such four clerks and attorneys; and, amongst others, certain entries of the reign of Henry VIII., proving that at that period the said four clerks or attorneys were clerks of the Town Clerk and Registrar of the
said Court, and were *sworn and admitted by the Court of Mayor *6]
and Aldermen, and, on admission, took the oath of office hereafter set forth; and that it was then, as appears from the said entries or some of them, the practice and duty of the said clerks or attorneys (besides acting as attorneys for suitors) to attend the Lord Mayor, and to act as his clerks in all matters of equity and of law, as well criminal as civil, in which the said Lord Mayor might have occasion for advice and assistance; and that the said clerks or attorneys were also required to be assistants to the said Town Clerk in the affairs of the said corporation ; that one of them acted as clerk of the Court of Common Council and kept the minutes thereof; and that one of them acted as Clerk of the seals, to superintend and oversee the affixing of the Mayoralty seal to all documents which ought of law and of right to be sealed; and that one other of the said clerks or attorneys was called and acted as Clerk of the enrolments in the Court of Hustings of London : and that the whole of the said clerks or attorneys in rotation issued precepts for Courts of Common Hall and certain Courts of Wardmote, and attended the Lord Mayor as his law advisers and clerks at the Wardmote held for the elections of Aldermen and other business of the ward : and that it was their duty and practice to make returns of such elections to the Court of Mayor and aldermen. And that, except the attendance upon the Town Clerk and the Common Council and at the justice rooms at the Mansion House and Guildhall, the said several duties still pertain to the offices of the said four clerks or attorneys, and are performed by them at the present day. That, previously to the year 1703, vacancies in the offices of clerks or
attorneys of the said Court were filled *by the Lord Mayor, or the *7]
Town Clerk for the time being, by grants for pecuniary or other
considerations, which grants were made of the office sometimes in possession and sometimes in reversion, and sometimes with and sometimes without the power of alienation. That in the years 1703 and 1777 respectively, and again in 1789, various minor alterations in the mode of appointment took place; and that since the latter period the said clerks or attorneys of the said Mayor's Court have obtained the same by purchase from the holders thereof; and that, subject to amoval for misconduct, they have been admitted to the office for life, with the right of alienation upon payment to the funds of the corporation of an alienation fine of 601. And that George Thomas Robert Reynal, John Carter, and George Ashley, three of the clerks or attorneys of the said court, hold their said offices by that title, and have respectively paid for the same sums varying in amount from 31201. to 90001. ; and that the fourth office is held by the Solicitor of the said city, he having been appointed thereto in the year 1841 upon the decease of the former holder thereof, who died without having exercised his right of alienation. And that, upon alienation and new appointment to the said office of clerk or attorney of the said Court taking place, the alienee is admitted by the Court of Mayor and aldermen, upon his taking the oath of office hereinafter set forth, and also upon taking and subscribing the oaths and declarations required to be taken, &c., by the several persons admitted to corporate places, offices, and appointments. And that the said oaths and declarations are so signed and subscribed in the same book and on the same page in which the Lord Mayor, Sheriffs, *Chamberlain, and other corporate officers, sign and subscribe the said oaths; and that the oath of office, which is taken but not signed, is in the words following.(a)
[*8 That the said oath is the same as that which has been immemorially administered to the said clerks or attorneys upon their admission to the said office. And that the court of the Mayor and aldermen, by whom
“Ye shall swear that ye shall well and lawfully examine your clients and their quarrels, with. out champerty and without procuring of any juries, or any enquests embracing: and that ye shall change no quarrel out of his nature, after your understanding. Also ye shall pload ne ley, or suffer to be pleaded or leyed by your assent no foreign release, acquittance, payment, arbitration, playne accompt whatsoever it be to put the court out of his jurisdiction, nor none other matter, but it be such as ye shall find rightful and true by the information of your clients, whose information and saying upon your oath and conscience ye shall think to be true. And ye shall not inform no enforce any man to sue falsely against any persons by false or forged actions. Attendant ye shall be upon the Mayor of the said city for the time being, and ready ye shall be at all times to come at the warning of the said Mayor, but if ye be letted about the business of the said city or by some other reasonable cause. Ye shall not deliver any book, or any manner copy, to any person, of any thing that toucheth the liberty of this city, without license and oversight of the Mayor, Recorder, and Town clerk of this city for the time being, or of two of them; or show to any person any book concerning the customs of the said city, nor suffer any person to look upon any such book of eustoms at any time, saving only the council of this city; but that ye shall keep the said books secret among yourselves. Ye shall keep and not disclose any thing there spoken for the common weal of the said city, that might hurt any person or brother of the said court, unless it be spoken to his said brother, or to other which in his own conscience and discretion ye shall think it to be for the common weal of this city. And that well and lawfully ye shall do all such things that to the office of attorney pertaineth to do, as God you help.”
a) The oath is printed in "Lex Londinensis, or The City Law,” p. 2, London, 1680 The commencement there is : "You shall swear that you shall well and lawfully do your office of
the said oath has been and still is administered, is a *court of *9]
record; and that the record of the admission of one of the present clerks or attorneys, which is in the same form as the other admissions thereto, is in the words following.
“Court of Aldermen, 9th March, 1819. This day William Drake, one of the four clerks or attorneys in the outer Court, being here present, did freely surrender up unto this Court his said place and office, and all his right and interest therein, which said surrender this Court doth accept and allow. This day John Carter, citizen and cloth worker, having produced Mr. Chainberlain's receipt for the sum of 601. at length as an alienation fine paid, pursuant to an order of the Common council of the 6th day of February, 1777, for his admission to the place or office of one of the four clerks or attorneys of the Mayor's Court of this city, is by this Court admitted the youngest of the four clerks or attorneys of the said Court in the room of Mr. William Drake; to have, hold, exercise, and enjoy the said place or office, with all fees, profits, and commodities thereunto due and of right belonging, so long as he shall well and honestly behave himself therein; and was here sworn for the due execution of the said place, and also took and subscribed the oaths, and made and subscribed the declaration, according to the several laws made for those purposes."
And that the said entries of the admissions of the said clerks or attorneys are made in the manner of all entries of admissions of other corporate officers, and other proceedings in the said Court of the said Lord Mayor and aldermen, in chronological order, and not in any
And that the said clerks do not sign, and never have signed, any roll, or anything in the nature of a roll, either upon their admission or at any other time before or after the same; but that, immediately after their admission by the court of Mayor and aldermen, they practise as attorneys of the said Lord Mayor's Court, and receive the fees and emoluments arising from their said offices, and are by custom subject to the government and control of the court of Mayor and aldermen, who *10]
may suspend or remove them for misconduct from *their said
offices. That there have been frequent occasions on which the power of the said court of the Mayor and aldermen has been put in force for their correction. And that there is not, and that there never has been at any time during the period of the existence of the said Lord Mayor's Court, a roll in which have been inscribed or entered the names of the said clerks or attorneys practising or having the right of practising in the said Lord Mayor's Court; nor is there now, nor has there been during any part of the said time, any roll, or any document or any other thing in the nature of a roll, which the said W. H. Ashurst could sign as directed and required by the act of parliament in the said writ mentioned.
And for these reasons and causes we, the said Lord Mayor and aldermen, cannot admit, nor ought we, &c. attorney, and well and lawfully examine," &c. (as above). Last sentence but one: “The secrets of this Court ye shall keep, and not," &c. (as above). There were also some slighter variances, not requiring mention.
Demurrer, assigning for causes : That the return does not either show a compliance with the writ, or properly traverse the matters contained therein, or any of them, or show any defects in the writ or previous proceedings, or any good cause for non-compliance. And that the return, if understood as denying the application of Ashurst to be admitted an attorney of the Lord Mayor's Court, and the refusal of the Mayor and aldermen to comply therewith, or that the Lord Mayor's Court is an inferior court, as in the writ is alleged, is argumentative and circuitous; and, if understood as confessing or not denying the same matters and allegations, does not disclose any sufficient cause for non-compliance : and that the return denies matters of law, alleging an immemorial custom limiting the number of attorneys of the Lord Mayor's Court, in contravention of the act of parliament mentioned in the
[*11 said *writ. And that the return is in other respects, &c. Joinder.
The demurrer was argued in Michaelmas term, 1845, (a) and Easter term, 1846.(5)
Hill, for the Crown.—The prosecutor relies on stat. 6 & 7 Vict. c. 73, s. 27, which enacts : “ That every person who shall have been duly admitted an attorney of any one of the superior courts of law at Westminster shall be entitled, upon the production of his admission therein, or an official certificate thereof, and that the same still continues in force, to be admitted as an attorney in any other of the said courts, or in any inferior court of law in England and Wales, upon signing the roll of such other court, but not otherwise, and shall thereupon be entitled to practise as an attorney therein in like manner as if he had been sworn in and admitted an attorney of such Court:” and “that every person who shall have been duly admitted a solicitor of the High Court of Chancery shall be entitled, upon the production of his admission there in, or an official certificate thereof, and that the same still continues in force, to be admitted as a solicitor in any inferior Court of Equity in England and Wales, and in the Court of Bankruptcy, upon signing the roll of such other Court, but not otherwise, and shall thereupon be entitled to practise as a solicitor therein in like manner as if he had been sworn in and admitted a solicitor of such Court." The return does not affirm or deny that the Lord Mayor's Court is an inferior *Court of Law or of Equity. If it be either, the prosecutor is
[*12 entitled to judgment. [Lord Denman, C. J. Without expressing any opinion, we think it would be convenient to hear the other side first.]
Gurney, contrà.—The Lord Mayor's Court, as the return describes it, is a court having such a character and incidents that sect. 27 of stat. 6 & 7 Vict. c. 73, cannot have been meant to include it. The return shows that it has peculiar jurisdictions, entertains suits arising out of the customs and by-laws of the city, and which can be tried in no other
a) November 19th. Before Lord Denman, C. J., WILLIAMS and WIGHTMAN, Js.
(6) April 22d. Before the same Judges and Pattesox, J. VOL. XIII.-3
court; has a peculiar practice relating to the law of foreign attachment; takes cognisance of criminal charges against freemen, on information by the Common Serjeant, which may result in disfranchisement; and acts as a court of equity. The four attorneys of the Court act not as attorneys only, but as corporate officers; and, on admission, they take an oath embracing other subjects than the mere duties of an attorney. Where the legislature intends to supersede ancient customs and by-laws, and to change the constitution of existing courts, a more express form of enactment may be expected; such as is found in stat. 5 & 6 W. 4, c. 76, ss. 1, 14, 118, 119. The statute now in question does not profess to abolish any customs, nor does it give power to remedy any inconveniences which might follow such abolition. Simson v. Moss, 2 B. & Ad. 543 (E. C. L. R. vol. 22), is an authority against the indirect repeal which must here be contended for. And in The Mayor of Leicester v. Burgess, 5 B. & Ad. 246 (E. C. L. R. vol. 27), where the question was whether the
general act 11 G. 4 & 1 W. 4, c. 64, *taking off restraints from the *13]
trade in beer, annulled the restrictions created by local custom, this Court held that the enabling clause could not apply to places where the trade was restricted by such custom. The act 6 & 7 Vict. c. 73, repeals many statutes and parts of statutes, but does not profess to alter any usages. By the statutes, analogous in some respects to this, 3 G. 3, c. 8, and 56 G. 3, c. 67, persons who had served during certain periods as “officers, mariners, soldiers, and marines," were enabled to exercise trades in any city, town, or place in Great Britain and Ireland, without let, suit, &c.; but, in addition to the general affirmative words, there were special enactments protecting them against any suit, plaint, &c., on proof given of such service, and requiring judges to take notice of the act, “any statute, law, ordinance, custom, or provision" to the contrary notwithstanding. “An affirmative act doth not take away a custom;" Co. Litt. 115 a. To the same effect is Com. Dig. Parliament (R. 24). But 6 customs of London are of such force that they shall stand against negative acts of parliament;" 19 Vin Abr. 512, tit. Statutes (E. 6), pl. 10, citing Mayor and Commonalty of London v. Bernardiston, 1 Lev. 14, 15. They are themselves confirmed by various statutes, down to 1 stat. 2 W. & M. c. 8, s. 3. The Courts at Westminster take notice of these customs, though not alleged; Spink v. Tenant, 1 Roll. Rep. 105, 106. - There are divers customs in London which are against common right, and the rule of the common law, and yet they are allowed in our books, and eo potiùs, because they have not only the force of a custom,
but are also *supported and fortified by authority of parliament;" *14]
City of London's Case, 8 Rep. 121 a, 126 b. In Appleton v. Stoughton, Cro. Car. 516, the Court of Queen's Bench inclined to the opinion that the custom of London was good against sect. 31 of stat. 5 Eliz. c. 4, which forbade persons to exercise any art, mystery, &c., without having been apprenticed to it; though in Rex v. Bagshaw, Cro. Car.