The Legal Observer, Or, Journal of Jurisprudence

the labours of a new legal session with a subject more generally interesting, both to the public and profession, than that of Chancery Reform. The coming year must be a memorable one in its history. The government is pledged to bring their scheme forward-the opposition to cease to be an opposition on this question. All parties in the state demand that justice shall be done to the suitor in equity. One great grievance, perhaps the greatest-the arrear of causes waiting for a hearing-we have repeatedly laid before our readers. We need not re-open this wound in the present number. A little further on will be found the actual list of causes; which amount to no less a number than 765, and 109 abated or standing over. These open their "dumb mouths" sufficiently on the present occasion. We turn rather to some other sources of delay and expense, which do not lie so immediately on the surface, but which much impede the progress of a cause both before and after hearing. We shall bring before our readers, in turn, the various offices connected with the Court of Chancery; and we shall commence with

THE SIX CLERKS' OFFICE.

It is not a little singular, amidst so many changes in the Courts both of Law and Equity, that the Six Clerks' Office should remain on its ancient footing, with the exception only of the reduction of the numVOL. XIX.-No. 556.

ber of Six Clerks." The same fees are still paid, to an enormous amount, for office copies; and the old practice preserved of conducting the proceedings through the agency of clerks in Court; thus giving the suitor two persons to pay instead of one. Anciently the proceedings in all the Common Law Courts were carried on in much

the same manner as they now are in Chancery, by a limited number of clerks in court, or side clerks; and the attorneys (the proper agents of the parties) could only act by means of these clerks. In the King's Bench and Common Pleas these 'middle men" were long ago got rid of; and the attorneys "at large," as they were of their clients without this incumbrance. called, were enabled to transact the business

On the Common Law side of the Court of

Exchequer the old system continued (as it when it was abolished by the Administrastill does in Equity) till the year 1830,

The Chancery Commissioners, by no means impatient or sweeping law reformers, admit the uselessness of the Six Clerks. "We cannot think there is sufficient occasion for six persons in this office, or that the suitors derive adequate benefit from the fees paid officers may, under new regulations, be emtherein. But we are of opinion, that these ployed most usefully for the public in the discharge of the duty in taxing costs, from which it is, upon many accounts, desirable to relieve the Masters." Report of Chancery Commissioners (1826), p. 33. By the Chancery Regulation Act, 3 & 4 W. 4, c. 94, s. 28, the number is reduced to two, but no additional duty is given them. We say with Regan, in this instance, "What needs one?" As to empowering them to tax costs, we admit that the present mode of taxation is highly unsatisfactory, but we shall venture to propose our remedy for this in our next article on this subject.

Chancery Reform: Six Clerk's Office-The Property Lawyer.

the fashion of assimilating the mode of procedure in our various tribunals will be extended to the Court of Chancery. The recent consolidation of the officers of the three Common Law Courts under Mr. Ser

tion of Justice Act, 1 W. 4, c. 70, and every attorney is now allowed to practise in his own name. The advantage of the alteration has been manifested by the vast increase of the business of that Court, which was formerly despatched in an hour's sit-jeant Goulburn's Act, 1 Vict. c. 30, is an ting, and now exceeds that of the Common Pleas.

It is, then, surely worthy of inquiry why the suitors of the Court of Chancery should still be "incumbered with the help" of clerks in Court, whose fees for office copies and nominal attendances form a very large part of the costs of a suit, and not unfrequently operate as a denial of justice, by swelling the expenses to an amount which cannot be borne where the property is of moderate extent.

There can be no good reason why a suit in Chancery should not be carried on in the same way as an action at law. After a subpoena has been issued compelling the defendant's appearance, why should not the plaintiff be at liberty to prepare his bill and deliver a copy to the opposite solicitor, as a declaration is delivered at Common Law? and why should not the defendant deliver his plea or demurrer in the same manner? An answer must of course be filed for safe custody, but a copy might be delivered to the solicitor, and thus both time and expense be saved. The subsequent proceedings might be conducted in a similar man

ner.

instance of the change to which we refer, and we would gladly see it extended to the Courts of Chancery, by the entire abolition of this office.

THE PROPERTY LAWYER.

LEASE TO AN ALIEN ARTIFICER.

LORD COKE says "if an alien take a lease for years, of lands, meadows, &c., upon office found, the king shall have it. But of a house for habitation he may take a lease for years, as incident to commerce, for without habitation he cannot merchandize or trade," Co. Litt. 2, b. Mr. Hargrave adds to this, "but 32 H. 8, c. 16, s. 13, makes void all leases of houses or shops to an alien being an artificer or handicraftsman. This law, however contrary it may seem to good policy and the spirit of commerce, still remains unrepealed, but in favour of aliens it has been construed very strictly," n. (7.) Blackstone, however, considers this statute repealed. In his second volume he lays it down without any qualification, that an alien " can hold nothing except a lease for It was formerly supposed that the Clerks years of a house for convenience of merchanin Court were peculiarly valuable officers, dize in case he be an alien friend,” p. 293; from their knowledge of the practice of the and in vol. 1, he says, " aliens also may trade Court, which was not clearly or fully stated as freely as other people, only they are in the books. It was said that the solici- subject to certain higher duties at the Custors were not well acquainted with its tom House [now entirely done away with details, and as they could always obtain by 24 Geo. 3, sess. 2, c. 16,] and there are ready information from such oracles as the also some obsolete statutes of Hen. 8, prolate Mr. Shaddick, Mr. Jackson, and others, hibiting alien artificers to work for themthey troubled themselves little about it. selves in the kingdom, but it is generally However that might be in former times, held that they were virtually repealed by the extensive alterations effected by the statute 5 Eliz. c. 7," p. 372. On this Mr. Chancery Regulation Act, 3 & 4 W. 4, Stewart says, 'but there does not seem any c. 94, and by the various New Orders of other authority for this but Blackstone's, Court, have destroyed that traditionary 1 Woodes. Lec. 273, n. 1." Rights of Perknowledge of practice which was previously sons, p. 396. In a very recent case, the to be sought in the Six Clerk's Office, and stat. of 32 Hen. 8, has been treated by the the solicitors may now read the orders, and Court of King's Bench as in force. the books of practice founded on them, for alien artificer took possession of a dwelling themselves, and readily learn the details of house, under an agreement in writing, which practice. The coming generation of soli- provided for the granting of a future lease, citors especially, are compelled by the ex- and it was held that this being illegal under amination to make themselves in some 32 Hen. 8, c. 16, the lessor might enter at degree acquainted with their practical any time and eject the tenant, although the duties in Courts of Equity. The time instrument did not amount to a lease. Lord therefore, we think, is approaching, when Denman, C. J., said, "It appears to me

Practical Points of General Interest.—Michaelmas Term Examination.

very questionable whether this instrument amounts to a lease, and whether the landlord had expressed any determination of the tenancy at will, so as to authorize him to enter. But it is averred in the plea that the plaintiff took and continued in possession of the dwelling house on the faith and terms of the agreement, with the view and intention to carry it into effect. Now, as the agreement was unlawful, the possession under it was also unlawful, and therefore the defendant was justified in making the entry in the manner pointed out in the plea." Lapierre v. M'c Intosh, 1 Per. & Davidson, 629. In the argument it was not contended that this statute was repealed. The passages in Coke and Blackstone must now, therefore, be read with the qualification imposed by the stat. of 32 Hen. 8. As to what an alien may take, see further, 18 L. O. 387.

PRACTICAL POINTS OF GENERAL
INTEREST.

ILLEGAL WAGER.

A GAMING Contract should not be encouraged if it has a dangerous tendency. Thus a wager between voters at an election as to the result of the poll, is illegal. Allen v. Hearne, 1 T. R. 56. So is a wager that one of the parties would not marry within a specified number of years. Hartley v, Rice, 10 East. 22; also, a wager on the duration of the life of Napoleon Buonaparte. Gilbert v. Sykes, 16 East. 150; or on the sex of the Chevalier D'Eon, Da Costa v. Jones, Cowper, 722. See other cases collected as to what wagers are legal or illegal, 14 L. O. 53; and 13 L. O. 51. The last case on this point, is that of Evans v. Jones, 5 Mee. & Wels. 77, in which it was held that a wager as to the conviction or acquittal of a prisoner on trial on a criminal charge is illegal, as being against public policy. In the argument, it was attempted to class wagers into two classes; wagers, which a Judge may refuse to try, as in Thorton v. Thackeray, 2 Y. & J. 156; and wagers which are held illegal as being against public policy, but the first class of cases is exploded, per Lord Abinger, C. B.; and Parke, B., said The Judge is bound to try them at some time, though he may postpone them until after cases of more importance have been tried." It is to be observed that in Jones v. Randall, Cowp. 17, a wager upon the event of a suit at law has been held to be legal.

MICHAELMAS TERM

EXAMINATION.

WE are informed that the following is the state of the List of Candidates for the approaching Examination :

By the printed list of notices of
admission, it appears that the
number intending to apply is 166
But of these many have been already
examined and obtained certificates
of approval, viz.

Among these there are also a few who, though they have given notice of admission, have omitted to give notice of examination, namely..

To which number is to be added
those who have given examina-
tion but not admission notices ...

Making the total number to be examined

146

141

148

A considerable per centage is, however, to be deducted for illness, accidents, and other causes of absence; but even if 120 or 130 should attend, we think our readers will agree with us that they will be amply sufficient to make up for those who died since last Term, or have made their fortunes, or retired for other good causes and considerations.

Though we do not hear that the Questions will be more difficult than usual, we think it may be anticipated that either now or at no distant time the Examiners will expect the Answers to be more complete than in the early progress of the plan was expected. We recommend, therefore, the Candidates to do their best, and not at tempt to distinguish themselves by a hasty consideration of the Questions for an hour or two only.

On this subject, we trust we do not go out of our way in noticing the Third Edition of the Articled Clerk's Manual, just published; in the advertisement to which it is stated that "this edition contains the whole of the Questions put at the Examinations, from their commencement in 1836, to Trinity Term last. We need hardly point out to the Student the advantage of familiarising himself with all these Questions, some of which must occur at every subsequent examination."

Notices of New Books.-Practice under the Imprisonment for Debt Act. NOTICES OF NEW BOOKS.

his amount of labor to some reasonable bounds. We are not in favour of the hope

The Hand-Book, being a Guide to the Chan-less attempt at forming a Code of our Com

cery Judges' Opinions of the Peculiarities and Faults of the various Decisions and Reports in Chancery, Bankruptcy, and Parliament, both English and Irish, with Subjects and Index. By George Farren, jun., Esq., Chancery Barrister of Lincoln's Inn, Author of "A Key to the Statutes;" "A Statute made easy;" Guide to the Statutes at Large." London: Richards & Co., 1839.

THIS is a book of great labour and utility. "It often happens (says Mr. Farren) in the rapidity of argument in Court, or in the hurry of business, that cases are cited and carry the judgment, of which cases it cannot be supposed that the opposing Counsel or the Judge is at the moment aware how far they have been overruled or shaken; and this little Treatise is intended as a Hand-Book, which being in the Advocate's bag, or at hand, enables him at once, when a case is cited, (by reference merely to the name, as in a pocket dictionary) to see how he is to deal with such cases when shot off against him so also at consultation; so also in more deliberate business at chambers."

We think Mr. Farren has carried his design into effect in a concise and very convenient method. He has arranged his materials in three columns. The 1st contains the subject-matter of the case reported, "Partition;"" Waste;" the 2d column states the name of the objectionable case with the usual reference to the reporter; and the 3d, gives the name and reference to the case and reporter, and the precise page where the judicial objection is expressed.

mon Law, but we think something useful may be done in throwing aside a large mass of reported cases which are of doubtful authority, and thus narrowing the field of legal research.

PRACTICE UNDER THE IMPRISON-
MENT FOR DEBT ACT.

Sir,

A difference of opinion existing as to the practice where a defendant is arrested by the Judge's order under the Imprisonment for Debt Act, will you have the kindness to find room in your Journal for the following, when perhaps one of your correspondents will take the trouble of giving his view of the matter.

In the first place, one side of the question urged, that in the event of a defendant being arrested, the declaration must be worded in the old form, (i. e.) “who has been arrested, that in the event of the defendant absconding, &c.," and argued in defence of their position, it is necessary in order to enable the plaintiff to proceed against the bail, that it should appear on the record, that it is a bailable action, as the Court in any proceeding against them will only look at the record.

In answer to that, it is submitted that there that the writ of capias cannot be considered a is now no such thing as a bailable action : primary writ (inasmuch as it cannot be issued in the first instance) but only in the light of an interlocutory proceeding, and that when the purpose for which it issued is answered, it falls to the ground. 2dly, That as the record must the writ of capias may be issued in any stage in all cases agree with the declaration, and as of the proceeding before final judgment (see 5th section of the act), supposing the writ to be issued after declaration, and the action be defended, it must either appear on the record that the defendant "was summoned by virtue We have had frequent occasion to noof a writ issued, &c. " referring to the writ of tice the delay in publishing the Law Re-summons; or the declaration must be amended, which would be making the writ of capias apports, the great length to which the details pear the commencement of the action, which of facts and documents unnecessarily ex-by the act it clearly never can be (see sect 2); tend, and the evil of having various contemporaneous reports. Mr. Farren has shewn that in addition to these grievances, there is yet another: namely, the "Errors of Reporters." In almost every page of his Work, he notices several errors in the recent as well as the early Reports. We must not enter upon a statement of these "uncertainties of the law;" but Mr. Farren's industry tends to prove the importance of a measure, which we recommended for consolidating or digesting the Ler non scrip[a, so far at least as would have the effect of relieving the practitioner from consulting various conflicting authorities, and reducing

and 3dly, that the Court will not confine themselves to the record, but that the bail-piece as filed is sufficient evidence of the defendant having been held to bail, and delivered to them as his bail.

It is also urged on one side, that immediately on special bail being put in and perfected, the plaintiff is at liberty to deliver declaration, &c.; but on the other it is submitted, that as by the 2d section of the act all actions are directed to be commenced by writ of summons, the defendant must first be served with a copy of the writ of summons, or in the event of that

being in a different county, that another must be issued and served, and an appearance entered for him (see stat.) or otherwise, before the plaintiff can declare.

N. S.

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