CONTENTS OF VOLUME XLII.

Equity Practice Affidavits in support of EXAMINATION OF ARTICLED CLERKS.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, MAY 3, 1851.

TO OUR

legal profession, taken as a whole,-consci

READERS AND SUBSCRIBERS. entiously convinced that, from the noble and learned occupant of the woolsack who lately received such a remarkable and THE memorable and exciting incidents well-merited testimony of the respect of his connected with the opening of the Great professional brethren to the humblest Exhibition of the Industry of all Nations, writer in the smallest office, all are alike can in few instances relieve from the per- bound to unite in increasing the value and formance of individual duties, and does not usefulness of the profession, by maintaining supersede the obligation of recalling the its honour and character.

attention of our readers to the circum- We must, hovever, continue to bear in stances under which the present Volume-mind, that all the other legal periodicals are the forty second of a series-commences.

under the control of members of the Bar, The Legal Observer, as most of our and although for the most part they deal readers have been informed, was established fairly with the attorneys and solicitors, they above twenty years since, chiefly for the pur- always (as might be expected) "stand by pose of collecting, explaining, and giving effect their order" whenever a question arises into the opinions of the members of the legal volving the immediate interests of the Bar. profession upon all matters affecting their It is but equal justice, therefore, that our ten feelings or interests. When the publica- thousand brethren of the junior branch tion was started, the profession was without should be fully and zealously represented. a representative amongst the periodical Assuring our readers, that the future press, except one quarterly Magazine. conduct of this publication will be governed Since that period, several journals, with by the same principles which have hereto somewhat analogous objects to our own, fore influenced those to whom its managehave from time to time sprung up. ment has been entrusted, and that its Many of these have disappeared, whilst columns will continue to be open for the others are still in active existence. The candid and temperate discussion of every latter fact affords pregnant proof, that the question affecting the interests of the proconception was useful and not undeserving fession, -we must urge upon our friends, of encouragement; and if, sharing in some both in town and country, the necessity of of the labours of the same field, our continuing their frequent communications contemporaries have, as we readily admit, upon the various topics of alteration or brought much energy and ability to bear amendment, whether proposed on the part upon the original design, we can afford of the profession itself, or by the large class to regard their success with feelings the of persons now incessantly engaged in urgopposite to those of jealousy or distrust. ing forward so many kinds of reform, alike It would be vain, in these days, to claim in the constitution and the practice of the any merit, or expect any indulgence on the Courts. We shall thus be the better euground of antiquity. We disclaim any such abled, from the result of large practical exidea, and only ask our readers to believe perience, to support those measures, which that we have endeavoured honestly and in the end will be beneficial both to the consistently, to the best of our judgment public and the profession. and ability, to promote the interests of the VOL. XLII. No. 1,208.

We pass now to matters involving a con

B

28

ble di

To our Reader's and Subscribers.A-Amalgamation of the Courts of Law and Equity. sideration of one of the most remarkable" From this brief outline it is clear that the projects that has hitherto been proposed in distinction between law and equity arose not reference to the administration lof justice from any recognition of its abstract propriety, the amalgamation of the Courts of Law and Equity, to which we must devote ase parate article.qui vigig af dit

AMALGAMATION OF THE COURTS WOD OF LAW AND EQUITY. I intenon of bsen

ancient not altoure

of

but because the Courts of Law and the Legis

lature had alike omitted to give to the system of common law that expansion which the advance of civilization imperatively required; and it is equally clear that by the substitution of specific remedies, the nature of equitable jurisprecedent for discretion, of general rules for diction has been entirely changed from what it originally was in early times. If, then, these two jurisdictions have succeeded in working together for the promotion of substantial jus

ALL are aware that it has been resolved to modify, to, abolish, the stablished in the Courts of Common Law. The mode of procedure adopted in the Courts of Equity has already undergone a limited re-tages arising from the separation of juris

vision,

is

"

tice, this result must be attributed, not to calculation or design, but to a fortunate accident.": The practical advantages and disadvan

-91

ilf

Segested by persons in diction are thus enumerated and contrasted;

judge.

authority, that the constitution of those whether fairly or otherwise let the reader tribunals requires alteration. Beyond this, a considerable portion of the business forThe advantages are only two-first, the merly transacted by the Courts of Law has power to preserve intact the ancient forms of been transferred to the County Courts. It our common law; and, secondly, the superior is also proposed to endow those institutions skill attainable respectively by the judges and with an extensive Equity jurisdiction, and practitioners in Courts of Law and Equity, in to employ them, to the exclusion of existing consequence of the division of labour. Courts in distributing the assets of bank-of law and equity are the following:The principal disadvantages of the division rupts and insolvents. Many of these pro2 jects, however, will be inapplicable and rendered wholly unnecessary, if the more comprehensive reform, sanctioned by the Society for Promoting the Amendment of the Law, should meet with the approval of parliament.oiling tournot get arbei

V

1. The line which separates the two jurisdictions is so uncertain, that in many cases preliminary investigation of great nicety is required before it can be ascertained whether the remedy should be sought in law or in equity.

"2. In many cases a complete remedy cannot be had without having recourse to both Courts, and thus bringing two lawsuits instead

of one of Lati

11.

it It appears that, under ad code which exists in the State of New York, the prin"3. Courts of Law are compelled to decide ciples of Law and Equity are administered without reference to equitable principles, and by the same tribunals, and the Law Amend- consequently to do injustice with a full knowment Society, taking the New York system ledge of the fact, and an anticipation of the as a model, have adopted an elaborate, and, subsequent overthrow of their judgment by the it must be admitted, an ably drawn report, interference of a Court of Equity.dift in which a change greater than all that has 4. Courts of Law and Equity in many inyet been suggested in the administration of stances administer the same law, and thus a our laws, namely, the abolition of the dis-party is liable to be twice vexed, for the same tinctions so long existing between Courts Law in his favour rendered valueless by the matter, and to have the judgment of a Court of of Law and Equity is earnestly recom- adverse decision of the Chancellor on the same mended as a practical measured bonferidates point. The report, on which this recommendaThe existence of two distinct systems of tion is founded, and to which we now pro- pleading and practice is of itself a great evil. pose to to direct attention, is too volumi-16 Courts of Equity are compelled to decree nous to allow of our printing it in extenso, that the parties themselves should carry their The subjected to distinction bet trouble, and expert 29z0qagę „basdorage, is thus divided 1st, The orders into effect, which occasions much Law and Equity next, the practical ad-in detail the alleged mischiefs and incon After proceeding to consider, somewhat ervantage and disadvantages which flow from veniences arising from the separate adminithat distinction; and lastly, the practicability stration of Law and Equity in our Courts of band expediency of adopting some plan where-Justice, the remedy, is discussed, and it is by that distinction can be safely abolished. To The inference drawn from a consideration supposed it can only be arrived at by adoptof the first division of the subject is thus ing the equitable procedure, the legal prodivision of the subject is thus beedure or by framing new proce put by the framers of the report:

causes and nature of

h endless

procedure.

3

Amalgamation of the Courts of Law and Equity-Review: Tilsley's Stamp Laws. T After adverting to the relative merits of tion of its merits will therefore be conveni-e those three plans, the decision of the Com-ently postponed until the plan is fully mittee in favour of the latter is thus developed. If the confidence expressed by expressed :— its proposers, as to its expediency and "It is therefore the unanimous opinion of practicability, be well founded, we shall only the Committee that, excepting the administra- add, that the pigmy improvements sug tion of the estates of deceased persons which gested in various branches of the law can

former Committee, should be transferred to as they b would necessaril

the Bankruptcy Courts, and except the com- and give place to the new code it is now mon law jurisdiction of the Chancellor and his jurisdiction as representative paria patria, the proposed to construct.

whole jurisdiction of law and equity ought to be invested in the same Court, that the distinction between the two should be abolished, the equitable principle in cases of conflict. replacing the legal, and that this single code can and ought to be carried out under an uniform system of procedure."

The Committee wind up their report by recommending the Society to adopt the following resolutions, and, as already intimated, those resolutions were agreed to at a meeting presided over by Lord Brougham, and without a dissenting voice :

"Resolved, with reference to the separate jurisdiction of law and equity as recognized in this country,

"1. That justice, whether it relate to matters of legal or equitable cognizance, may advan tageously be administered by the same tribunal.

“2. That where the principles of law conflict with those of equity, the latter shall prevail to the exclusion of the former.

"3. That all litigation, whether it relate to matters of legal or equitable cognizance, may advantageously be subjected to the same form of procedure.

4. That the rules of procedure be embodied in a code."

The New Stamp Act, 13 and 14 Tict. c. 97, with Notes and Explanatory Observa tions, and Tables of all the Stamp Duties, payable after the 10th October, 1850, including the New Law Fund, Equity Fund, and Judgments Registry Duties in Ireland, Together with a Digest of all the Cases, not included in the Treatise on the Stamp Laws. By HUGH TILSLEY, assistant Solicitor of Inland Revenue, Third Edition, Revised and Enlarged. This work forms a Supplement to the second edition of the Treatise on the Stamp Laws by the same Author. London: Stevens and Norton, 1851.

This new edition comprises numerous notes of great value, which were not comprised in the former editions,-particularly under the heads of Agreement; Bills of Exchange; Covenant; Foreign Stamp Laws; Lease; Receipts; and Legacy Duty-all which the Practitioner should carefully péruse,

who differ from the Board of Inland ReOn the 15th Section, enabling parties venue as to the duty to be affixed, to state Exchequer, Mr. Tilsley makes the followa case for the opinion of the Court of ing note:bod gantazo quel

The extent and practical importance of the change thus recommended causes all the other plans of reform and improvement now under discussion to seem insignificant. Accustomed to regard the established system as well calculated in the main to promote the ends of justice, though conceding that, in common with all human institutions, it is far from perfect and would admit of much improvement, the proposal of the Law Amendment Society produces that sensation which is familiarly expressed by saying, "it deprives sus of breath."No one, we apprehend, supposes that the public, or the legislature to say nothing of the profession-are prepared for such a sweeping change. Indeed, this seems to be felt by scarcely intelligible. The use of the term is a the proposers of the scheme, who have an- solecism. Unlimited reliance may be placed nounced that the report, of which we have in the certificate, furnished by means of the put our readers in possession of the outline, stamp, whether the Board's decision be volunis to be followed by a series of reports on tarily submitted to or corrected by the superior the same important subject. A considera-tribunal, and whether the judgment be accord

"It has been observed, that the tribunal, established by the preceding clause, is not one which will enjoy the confidence of the profesprovision was introduced, not by the Governsion, or be much resorted to. Seeing that the ment, but by a member of the profession, at the instance of a society representing, or professing to represent, the whole body, the remark occasions a little surprise. The suggestion would seem not to be grounded in opinion; and, as relates to the want of confidence, it is

4

Review: Tilsley's New Stamp Act, 13 & 14 Vict.

ing to or against the law; the value of such denoting stamp on counterparts of deeds, certificate, therefore, is inestimable. How far and it appears that a mistake prevails in the view, which is altogether opposed to the the profession, that the Commissioners reexperience of the writer, is correct, may be ascertained by a reference to the instances in quire the original deed to be produced which the power conferred on the board has stamped and executed at the time of affixing been made available. They already, within the denoting stamp. Mr. Tilsley says,— little more than four months, number upwards of two hundred."

The member of the profession who introduced the provision was Mr. Mullings, M.P., for Cirencester, at the instance of the Incorporated Law Society. We had not previously heard that the profession entertained any doubt of the utility of this enactment, and have reason to know that it was proposed, with the sanction of the Provincial Law Societies, with whom the Incorporated Society was in constant communication on the amendments in the Stamp Laws.

"This provision, as to the denoting stamp, the propriety of which, more particularly in the instance of duplicates, is obvious, of necessity occasions some practical inconvenience; inrolving, as it does, the production of the two instruments at the Stamp Office after execution; which it may, perhaps, be, in some cases, considered worth while to avoid, by stamping each as an original. It has been suggested, however, that this will not obviate the difficulty; the provision alluded to, being in its terms, peremptory; rendering it compulsory, in every case where the duty on the original is 5s. or upwards (not including any progressive duty), to have the denoting stamp on the duplicate or counterpart. That this was not the intention of the enactment is certain; nor, it is

Mr. Tilsley is accustomed to collect all the decisions of the Courts upon any ques-apprehended, can it be the legal effect of it. tion arising out of the Stamp Acts, and since our notice of the First Edition of his Treatise, he has added the following:

"An attorney who had not taken out his certificate since 1841, and whose admission, therefore, at the time of the passing of the 6 & 7 Vict. c. 73, was, by the operation of the 37 Geo. 3, c. 90, s. 31, null and void, applied for re-admission, or for an order authorizing the registrar to renew his certificate. It was suggested by the counsel whether re-admission was not absolutely requisite; but the Master informing the Court that the practice, in such cases, was merely to renew the certificate, Mr. Justice Patteson, fearing that an order for readmission might be considered as affecting the positions of those who had, under the same circumstances, merely taken out certificates, granted a rule in the usual form.'

The object was, to prevent fraud by the use of an instrument impressed with a stamp of low value in the place of one requiring, probably, a large amount of duty, which might never have had any existence; representing the former to be a duplicate or counterpart; and, thus, evade the duty chargeable in respect of the transaction effected. But no such evasion can take place where the instrument, whether original or otherwise, is stamped with the full duty, as an original. At all events, the difficulty can only arise in the case of a counterpart. Where both are executed and stamped, as originals, it cannot be objected that one is a duplicate. The denoting stamp will not, however, be withheld, in any such case, if it be required.

"The inconvenience has been complained of as being increased by the regulation requiring the production of both the original and counterpart at the same time; a thing, in some "An attorney, who is without his certificate, instances, almost impracticable; as, frequently, is disabled from suing for fees, only in respect lessees can scarcely, it is said, be prevailed of business done in some suit or proceeding in upon to part with their leases, after having one of the Courts mentioned in the 6 & 7 Vict. executed the counterparts; that this difficulty c. 73. In an action by an attorney for his bill is, more particularly, experienced when money, of costs, the defendant pleaded, that, as to a to pay the fine, has been borrowed on the secertain portion, it was composed of fees, &c., curity of the lease, which, after execution, is alleged to be due for business done by the immediately handed over to the mortgagee. plaintiff, as an attorney, whilst he was without The Commissioners do not, however, require this a certificate; to which the plaintiff demurred, to be done. The lease, or other original instruspecially, assigning for cause that it was not ment, when executed by the lessor, or grantor, alleged that the business was done in or relat-may be exhibited alone; a memorandum of ing to any proceedings in any Court whatsoever. The demurrer was allowed."2

Under the head of "Duplicate or Counterpart," Mr. Tilsley states the regulations made by the Commissioners for affixing the

1 Exparte Howard, 20 L. J., Q. B. 65. Richards v. Lord Suffield, 2 Excb. Rep. 616; Greene v. Reece, 4.Exch. Rep. 88. Jik

the date, parties, stamp, &c., being left at the office with the person to whom it is shown ; and the counterpart, or duplicate, may, at a future period, be produced for the purpose of having the denoting stamp impressed."

This information will be very satisfactory, and seems to go far in removing the inconvenience complained of.