The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, JULY 10, 1847. -" Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. BUSINESS OF THE COMMON LAW | may be more readily understood than ex COURTS. CONTEMPORANEOUS SITTINGS IN BANCO plained. The suitor is more damnified, and feels more dissatisfied, by a speedy decision given under such circumstances than by delay; and the administration of justice itself is prejudiced by having points of "great pith and moment" determined after a partial investigation and imperfect argument, or it may be, in the absence of counsel, and without any argument. These evils were so strongly felt by the leading members of the bar, that a public and formal representation was made to the Barons of the Court of Exchequer on the subject, who, it is only doing them justice to state, met the matter with the greatest A CIRCUMSTANCE occurred at the banco sitting of the Court of Exchequer, one day during the past week, which has had the effect of directing public attention to the present state of the business in the courts of common law. In all three of the courts there is a considerable arrear, and with the praiseworthy design of reducing the number of causes remaining for hearing at the termination of Trinity Term, the judges of the Courts of Queen's Bench and Ex- candour and fairness. It was admitted, chequer, under the authority of the statute that the contemporaneous sittings of the 1 & 2 Vict. c. 32, appointed certain days same court at Westminster and Guildhall for sitting in banco at Westminster, con- was most inconvenient and detrimental to temporaneously with which these courts the public interests, and that a general unwere sitting at nisi prius, at Guildhall, for derstanding prevailed in the profession, the trial of issues, the venue in which was when the statute authorising sittings after laid in London. This arrangement has Term in Banco was in progress through proved most inconvenient to the profession, parliament, that those additional sittings and, in many instances, disastrous to the were not to interfere with the nisi prius suitor. Unless the leading counsel gene- sittings in London after Term. As far as rally declined accepting briefs at the we can understand, it is not proposed that London sittings, the courts sitting in the Court of Exchequer should again apBanco could not be punctually attended, point sittings in Banco, whilst the court is and points reserved at nisi prius, in order that an opportunity might be afforded for deliberate argument, must, in all probability, be disposed of in the absence of the counsel who had previously conducted the case, and upon whose exertions the client mainly relied for bringing the merits fairly and fully before the court. The mischief and injustice occasioned by the existence of such a state of things VOL. XXXIV. No. 1,009. held at Guildhall for the trial of nisi prius causes. Of course, the inconvenience complained of, will continue to exist, unless the Courts of Queen's Bench and Common Pleas adopt the same rule as the Court of Exchequer, and refrain from appointing those simultaneous sittings. Should a uniform practice in this respect be adopted by all the courts, as it is clearly desirable there should be, the question remains, how M 234 Business of the Common Law Courts.-Law of Landlord and Tenant. is the arrear of business at present existing quainted with the business of the courts. to be got rid of, or prevented from increas- The obvious remedy for this evil is, that ing? The additional sittings in Banco the leading counsel should select particular were considered necessary, because the courts and practise exclusively in those Terms were found insufficient for the dis- courts. This course has been voluntarily posal of the business brought before the adopted by many eminent advocates with courts during Term. Should the duration equal advantage to themselves and satisof the Terms be protracted, or should an faction to their clients. The present Chief additional court be established with con- Justice of the Common Pleas, (Sir Thomas current jurisdiction, to lighten the pressure Wilde,) and Mr. Baron Platt, for many which begins to be so severely felt by the years confined their practice, the one to judges of the existing courts? the court over which he now so worthily This is a matter requiring serious and presides, and the other to the Court of anxious consideration from those on whom Queen's Bench. The three courts, we bethe responsibility devolves of providing for lieve, furnish instances in which gentlemen the due administration of justice. To of acknowledged capacity and extensive lengthen the duration of the Terms, it practice have attached themselves to a parwould become indispensably necessary to ticular court. The certainty of having a alter the periods appointed for holding the counsel always at his post when the cause circuits, and to adopt fresh arrangements in which he is retained is called on, is an in nearly every branch of the administra- advantage too obvious not to be readily ap tion of justice in which the common law preciated. Those who have adopted a rejudges are engaged. Whether a change solution so satisfactory to their clients, and of arrangements could be devised which so consonant with that which the public at would not produce greater inconveniences large consider to be the correct course, will than those it is proposed to remove, is, at be sure to find their reward. We trust the best, extremely doubtful. The ex- their example will be speedily followed by pense of establishing and maintaining a all who have arrived at the position to ac new court of co-ordinate jurisdiction with cept leading business at the bar. It is unthe three courts of common law, is the ob- necessary, and would be injurious, to imjection, we doubt not, with which any such pose such a restriction upon juniors. As proposition would be met at the outset, al- already hinted, however, if the principle of though it is the objection, perhaps, of all selecting a particular court was adopted others, entitled to the least weight. The by the bar to the fullest extent, it would be inhabitants of a country so highly taxed as ineffectual if the same court held its sitthis is, have indeed reason to complain of tings at different places contemporaneously. the manner in which their affairs are Such a system unreasonably requires the managed, if sufficient cannot be spared to discharge of duties from their nature irredefray the comparatively trivial expenses concilable, and, desirous to see all the reguincidental to the efficient administration of lations of our courts approved of and rejustice. Be that as it may, no practicable spected, we trust it may not be persevered arrangement could be suggested to prevent in. the inconvenience and prejudice to suitors which must arise from having distinct and independent sittings of the same court in different and distant localities. We confidently hope, therefore, to see a plan open to so much and such well-founded objection abandoned at once and for ever, whatever may be substituted. The difficulty of securing the attendance of leading counsel, even when all the courts are sitting in Westminster Hall, is notorious. The anxiety, disappointment, and not unfrequently, the positive injustice to which clients and their responsible adsubjected in consequence of the LAW OF LANDLORD AND INSUFFICENT NOTICE TO quit. of the Court of Queen's Bencha contains two THE latest published number of reports cases upon the sufficiency of notices to quit, to be added to the multitude of cases already determined and ranging under the class of cases, it may be conceived the rule same head. Upon a hasty review of this requiring half-a-year's notice to quit was so inconvenient that it ought never to have been established; but upon a closer exami Frisesence of a counsel at the nation of those cases, it will be found that moment when his services are needed, can only be understood by those practically ac a7 Queen's B. Reports, part 3. Three of the four judges who thus ex the difficulty and uncertainty have been at the end of a year's tenancy. The court produced mainly by a departure from the was clearly of opinion that the notice was. plain rule, and by the adoption of subtle insufficient: it could not be good for May, distinctions suggested with the design of and the current year expired in November, preventing the law from operating harshly a few days after the date of the notice. If in particular instances. there was an absolute inconsistency, the Amongst the cases to which this obser- court might perhaps reject part, but a vation applies is, that of Doe dem. Lord notice bad in its origin could not be made Huntingtower v. Culliford, which was good by putting a strained interpretation pressed upon the court in a late case, and on terms quite clear in themselves. The has now for the first time been expressly judges also expressly declared that Doe overruled. There, a notice, dated the 27th Lord Huntingtower v. Culliford was not Sept., required a tenant who was let into good law, and that the doctrine there laid possession on the 4th August, to quit "at down, that the language of a notice might Lady-day next, or at the end of your cur- be altered to give it effect, was not mainrent year;" the current year expired on tainable. "If we were to interpret notices the 29th Sept.; and this was held to be a upon the principle there acted upon," says good notice for the current year ending at Patteson, J., "where could we stop?" It Lady-day, because a two days' notice could would be to say at once that every notice not be intended; and Bayley, J., said, ap- shall be valid. parently with the concurrence of the rest of the court, that the notice must be un-pressed themselves in Doe dem. Mayor of derstood so as to be effective. Doe dem. Richmond v. Morphett, determined, in the Lord Huntingtower v. Culliford was cited in case of Doe dem. Williams v. Smith, that a subsequent case of Doe dem. Williams v. the word "present" may be rejected as Smith. In that case the tenancy expired surplusage, and a notice held valid which in February, and the notice, dated 21st was admitted to be lame and inaccurate. October, 1833, was as follows:-" at the The distinction between that case and the expiration of half a year from the delivery more recent case of Doe dem. Mayor of of this notice, or at such other time or Richmond v. Morphett is, that in the last times as your present ycar's holding of or case the court was not only called upon to in the said premises, or any part thereof reject, but to add words, and to read the respectively, shall expire after the expira- notice as if it ran," the current year next tion of half a year from the delivery of this ending half a year after this notice." notice." Here the present year's holding In the second case now reported,® ́a expired in February, 1834, but as the yearly tenant gave his landlord notice on notice necessarily referred to some time the 31st January, to quit on the 1st May after the expiration of half a year from the following, and it was admitted that the notice, it was held that the word "present" notice was insufficient, but the question might be rejected, and the notice applied was, whether there was not a waiver of a to February, 1835. Both those cases half year's notice. It appeared that the were brought under the consideration of landlord at first acquiesced, but ultimately the Court of Queen's Bench in the late refused to accept the notice. The tenant case of Doe dem. the Mayor of Richmond v. Morphett. There the defendant held under the corporation of Richmond from Martinmas to Martinmas, and by a notice dated and served on the 21st Oct., 1842, he was called upon to quit "on the 13th day of May next, or upon such other day or time as the current year for which you now hold the same will expire." The objection to this notice was, that it was either a notice for Martinmas, 1842, in which case the time was insufficient, or for 13th May, 1843, in which case it did not expire quitted according to his notice, and the e Bassell v. Landsberg, 7 Q. B. 638. f The question whether a surrender can be inferred from the mere conduct of parties, without any act done which would take effect as an estoppel, was discussed in a late case of Lyon v. Reed, in the Exchequer, reported 13 Mees. & W. 285. M 2 236 New Statutes. Representation of the Profession in Parliament. NEW STATUTES EFFECTING ALTERA- | the duties, rights, privileges, and emolumen TIONS IN THE LAW. ABOLITION OF A MASTERSHIP IN CHANCERY. 10 & 11 VICT. c. 60. An Act to abolish One of the Offices of Master in Ordinary of the High Court of Chancery. [2nd July, 1847.] thereto belonging, as if a master in ordinary had been duly appointed to succeed the said Andrew Henry Lynch, but nevertheless for a time not exceeding twelve months from the passing of this act; Provided always, that in of the said George Barrett and Edward Wright, the event of the death, resignation, or removal or either of them, before the expiration of the said twelve months, it shall be lawful for the Lord Chancellor, if he shall think fit, to appoint a successor to them or either of them during the time aforesaid. 3. Compensation to chief and second clerks.— That it shall be lawful for the Lord Chancellor, with the consent of the commissioners of her Majesty's treasury, to award such compensation (if any), and in such manner and upon such conditions, as he may think fit, to the said George Barrett and Edward Wright, or either of them, in consideration of the loss they or he may have sustained by the abolition of the said office of master in ordinary. 1. Recites 3 & 4 W. 4, c. 94, appointing masters and giving salaries, &c. to their clerks. 5 Vict. c. 5, abolishing master of Exchequer and appointing Mr. Richards. Resignation of Mr. Lynch. One mastership abolished. Whereas by an act passed in the 3 & 4 W. 4, c. 94, it was enacted, that the appointment of all masters in ordinary of the High Court of Chancery should be vested in his Majesty, his heirs and successors, and that such master should thereafter be appointed by letters patent under the great seal of Great Britain; and it was by the said act also enacted, that the salaries to be paid to the chief and junior clerks of each of the said masters should be 1,000l. a year and REPRESENTATION OF THE PRO150l. a year respectively, and that it should be lawful for the said junior clerks to receive and take 14d. per folio of 90 words for every copy of every document or writing made in the office of the said master: And whereas by an act passed in the 5 Vict. c. 5, Richard Richards, year we called the attention of our readers Esquire, then one of the masters of the Court to the want of due professional representaof Exchequer, was appointed as an additional tion in parliament. Looking at the events master in ordinary of the High Court of Chan- of the session, we cannot say that our cery, and it was thereby enacted, that upon the "learned friends" on either side of the death, resignation, or removal from office of house have rendered much "suit and the said Richard Richards it should be lawful FESSION IN PARLIAMENT. AT the commencement of the present for her said Majesty from time to time by letters service," either to the law itself, or to any patent under the great seal to appoint a fit and branch of the profession. The only exproper person to supply such vacancy: And ception we can find is in the labours of Mr. whereas Andrew Henry Lynch, Esquire, late Watson's committee for inquiring into the one of the said masters in ordinary, did on the enormous amount of fees of courts of law 25th day of March now last past duly resign and equity. We anticipate that much his said office, and the same thereby became good will ultimately result from the investiand now is vacant: And whereas it is expedient gations which are in progress in that comthat the number of the said masters in ordinary mittee, relating to the taxes on justice. of the High Court of Chancery should be reduced to the same number as existed before The report of the Legal Education Comthe passing of the said last-mentioned act: Be mittce, founded on the evidence of the preit therefore enacted by the Queen's most ex- vious session, is also a valuable contribution cellent Majesty, by and with the advice and to our defective stock of information on the consent of the Lords spiritual, and temporal, state of the profession. and Commons, in this present parliament assembled, and by the authority of the same, Whilst we think the members of these That it shall be lawful for her Majesty not to committees are entitled to all praise for fill up the office so vacant by the resignation of their devotion of time and attention to the the said Andrew Henry Lynch, but that the important subjects before them, we search same shall be and the same is hereby abolished. in vain for any other evidence of profes2. Chief and second clerks retained for period sional zeal amongst the many eminent lawnot exceeding twelve months.-That for the con venience of prosecuting the causes and matters yers who adorn the roll of parliament. It will not be a useless employment, if referred to the said Andrew Henry Lynch, and now transferred to the other masters in ordinary, our readers, in contemplation of the close it shall be lawful for the Lord Chancellor, if he of the present and the election of a new shall think fit, to retain George Barrett and parliament, will go over the names of the Edward Wright, the late chief and second clerks of the said Andrew Henry Lynch, as chief and second clerks respectively, with all members of the bar who hold seats in the House of Commons, first examining those who are either well known in Westminster Review: Foss's Lord Chancellors and Keepers of the Seal in the Reign of King John. 237 Hall or in the ranks of law reform. Let "The only certain evidence of the names them ponder upon the deeds done by these gentlemen towards the real improvement of the administration of justice, or the due maintenance of the station and character of professional men, and we shall be infinitely obliged by receiving a statement of their senatorial labours, whether successful or otherwise. NOTICES OF NEW BOOKS. The Lord Chancellors and Keepers of the Seal in the reign of King John. Communicated to the Society of Antiquaries by EDWARD Foss, Esq., F.S.A., and published in the Archæologia, vol. XXXII. London: J. B. Nichols & Son. 1847. THIS is an exceedingly interesting dissertation on the Chancellors and Keepers of the Seal in the reign of King John. Notwithstanding our natural respect for most of the subjects which relate to ages long passed away, we must admit that many topics of antiquarian research are not deserving of the expenditure of learning and ingenuity which are sometimes bestowed upon them. Here, however, we heartily enter into the controversy, and rejoice that Mr. Foss has investigated, with his accustomed accuracy of research and force of reasoning, the several questions which arise on this important portion of our legal history. A discussion, indeed, which relates to the Charters of a reign memorable for the greatest of all our charters, cannot fail to interest every reader. It is very remarkable, as pointed out by Mr. Foss, that and succession of John's Chancellors is to be "The general impression has been, that when a charter is authenticated by the words Data per manum A. B. or C. D.' the person so subscribing was either a Chancellor, or Keeper of the Great Seal, or Vice-Chancellor. This mode of authentication has occasioned the discrepancy in the various lists hitherto published; some authors designating as Chancellors persons whom others call Keepers or Vice-Chancellors." The object of Mr. Foss's present disquisition is, to remove the confusion which has thus arisen, by fixing with greater certainty the names and order of the Chancellors, and by considering the real character borne by those who have been thus called Keepers or Vice-Chancellors. "It is not to be presumed, however," (says our author,)" that all the charters of this reign They are attested in all varieties of forms; sometimes solely by the King himself, and. sometimes by him in the presence of a witness or witnesses; sometimes by one witness alone, and sometimes by several; and sometimes with and sometimes without the before-mentioned additional authentication, commencing with the words' Data per manum.' are subscribed in the manner above mentioned. "Scarcely two writers agree either in the "Throughout the reign there are comparativenames or the succession of the Lord Chan-ly few charters which are so authenticated by the cellors of the reign of King John. The earlier compilers of the list of those officers had to rely either on the historians, who were often mistaken, or on their own examination of original documents, which was necessarily limited and unsatisfactory. Since the publications issued by the Record Commission, and subsequently by royal authority, the means of arriving at correctness have been materially increased; and recent authors must be presumed to have used them. Much allowance is therefore to be made for the errors of the former, while the assertions of the latter become a fair subject of critical inquiry; the more especially in John's reign, most of the records of which have been published in extenso." Mr. Foss then states the names of the principal writers who have treated of the Lord Chancellors of this period, and proceeds thus: Chancellors themselves. That it was not their positive duty, even when present, to affix their names to this form, is proved by the fact, occurring in multitudinous instances, of a Chancellor being, eo nomine, one of the witnesses, when the formal authentication has been made by one of the so-called Keepers. In every case, however, where the name of a known Chancellor appears, his title is distinctly added, except in one instance, to be afterwards adverted to; while, on the contrary, with respect to those who have been denominated Keepers, in no one instance is there any addition to their names, beyond the clerical dignity they hap、 pened to hold at the time. The question then that first occurs is, What was the official character of those persons who thus authenticated the charters, to whose names the designation of Chancellor was not added; and whether, even if it be allowed that they were in some way connected |