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The Legal Observer,
SATURDAY, APRIL 11, 1840.
* Quod magis ad nos
APPLICATIONS TO MASTERS IN Master of the Court of Chancery or ExcheCHANCERY.
quer, who is to report on such proposal.
The second billa is “A Bill for improving
the condition of Grammar Schools," by The feeling that Masters in Chancery should
which sit in public seems to gain ground; but
a summary process is intended to be whatever doubt may be entertained 'as to provided, whereby parties connected with this, there can be none that the office might schools may frame new statutes and submit be more efficiently discharged than at pre
them for the approval of the Court of Chansent. As it now exists, the evil is that it cery; and the mode of submitting them is greatly depends on the personal habits of
to be as follows: the Lord Chancellor is the individual who holds it, whether the to select and appoint one of the Masters of
the Court, to consider all new statutes, and Master really fulfils the purposes for which / he is appointed. If he be willing to work, “a secretary for grammar schools,” who
all schemes connected therewith, and also we grant that there is no cause to complain; shall communicate with such Master. The but if he be unwilling, how is it then? We are afraid that the Master, if so disposed, governors are to transmit the proposed stamay do very little indeed. We mean no- |
tutes, with a report of the circumstances, to thing personal or invidious, but we complain the secretary, and the secretary is to prethat an important judicial office should be pare a statement from the reports of the constituted so indulgently to the weakness before the Master, and to carry on the
commissioners and other documents, to lay of human nature.
We are the more induced to make this correspondence; and the Master is to proremark, as we are disposed rather to in- make his report on every case to the Court
ceed to the consideration thereof, and to crease the duties of the Master than to de- of Chancery, in the same manner as if the crease them. We are quite satisfied that
same had been referred to him by an order many matters might be referred to them in
or decree of the Court made in any cause the first instance with great advantage to the suitor ; and that this opinion is enter
or matter therein pending, and in such retained by the legislature, appears from se
port he shall approve of the proposed sta
tutes or scheme with or without variation, veral recent circumstances. There are now two bills before the House of Commons, in unless he shall be of opinion that in consewhich the Master is intended to be rendered quence of the intricacy of the circumstances, available in this
it cannot be satisfactorily determined in a way. The first of these is “A Bill to enable
summary way, in which case he shall so the owners of settled estates to defray the report ; and unless the Master shall otherexpense of draining the same,” which pro- him by counsel or solicitor, or otherwise,
.wise direct, no parties shall appear before poses, as amended by the Select Committee, than by the said secretary for grammar that any tenant for life may apply by peti- schools. We do not express any opinion as tion to the Court of Chancery or Exchequer to the merits of either of these bills, although for leave to make permanent improvements in the lands by draining the same, and
we think we may safely say the latter cannot every such petition shall be referred to a
a See ante, p. 360. VOL. XIX.NO. 584.
466 Masters in Chancery.- Practical Points of General Interest. - Liability of Attorneys. pass in its present shape. We merely no- person who furnished her with the poison tice them to show that a feeling exists to for that purpose will, if absent when she Tender the Master's Court a Court " of the took it, be an accessary before the fact. first instance,” in which, we believe, it might But a person cannot be triea for inciting in many common cascs be made serviceable. another to commit suicide, although that An illustration of this was given very recently other commit the suicide. This was held in the House of Commons on a debate on in the following case :– The indictment the expense of appointing trustees to charity charged that Ann Burton murdered herself estates. These, it was suggested, might by poisoning herself with arsenic, and that be well appointed by the Master on a sim. the prisoner did feloniously incite and prople reference to him, he calling for the cure the said Ann Burton the said felony opinion of the Court where it was neces- and murder to do and commit. Alderson, sary. But we do not think it is necessary to B. (to the jury.) – You have no authority have any “secretary for grammar schools,” to inquire into this charge ; this is a case or other such functionary as this. We much of suicide, and the prisoner is charged with prefer, and we think the public would prefer, inciting it; that is a case that by law we the service of the responsible legal agents cannot try. The prisoner must be acquitted. of the parties, viz. solicitors and counsel. Verdict-Not guilty. Reg. v. Leddington, However much they may be undervalued by 9 C. & P. 79. some, we would much rather trust to their watchfulness, learning, and honesty, than to the chance of service from any paid or un- LIABILITY OF ATTORNEYS TO paid functionary. But we think with their assistance, the Master being employed at
SERVE AS JURYMEN ON COROfirst, instead of at last, miglit save much un
NER'S INQUESTS, necessary expense and delay.
We have just received the returns ordered by the House of Commons as to the matter; | The act 6 Geo. 4, c. 50, for consolidating and shall advert to them in our next number. and amending the laws relative to jurors and
juries, fixes the age and qualification of
persons, “liable to serve on juries for the PRACTICAL POINTS OF GENERAL trial of all issues joined in any of the King's
Courts of Record at Westminster, and in INTEREST.
the superior Courts, both civil and criminal, &c. and in all Courts of Assize, Nisi Prius,
Oyer and Terminer, and Gaol Delivery." In our sixteenth volume, p. 491, we col. The 2d section exempts, amongst others, lected the cases relating to “ consenting to “all attorneys, solicitors, and proctors, duly suicide,” and according to them Mr. Jus- admitted in any Court of Law or Equity, or tice Patteson laid down the law to be that of Ecclesiastical or Admiralty jurisdiction, supposing parties mutually agreed to com- in which attorneys, solicitors, and proctors mit suicide, and one only accomplished that have usually been admitted, actually pracobject, the survivor would be guilty of mur- tising, and having duly taken out their annual der in point of law. Regina v. Alison, 8 C. & j certificates." P. 418; 16 L, 0.492. In the case of Rerv. Then the 52d section enacts, that no Russell, M.C.C.356, it was held by the fif- person shall be liable to be impannelled as teen Judges, that an accessary before the fact a juror, &c. upon any inquest, &c. by virtue to the crime of self-murder was not triable of any writ of inquiry, &c. who shall not be at common law, because the principle could qualified to serve on trials at Nisi Prius : not be tried, and that he is not now triable “ Provided always, that nothing herein confor a substantial felony under the statute of tained shall extend to any inquest to be takea 7 Geo. 4, c. 64, s. 9, as that statute was by or before any coroner of a county by rir to be considered as extending to those per- tue of his office, or to any inquest or inquiry sons only who, before the statute, were to be taken or made by or before any she. liable either with or after the principal, riff or coroner for any liberty, franchise, and not to make those liable who hefore city, borough, or town corporate, not being could never have been tried. And it was counties, or of any city, borough or town, also held, that if a woman takes poison with being respectively counties of themselves; intent to procure a miscarriage, and dies of but that the coroners in all counties when it, she is guilty of self-murder, whether she acting otherwise than under a writ of inquiry, was quick with child cr not, and that the and the sheriffs and coroners in all such
INCITING TO SUICIDE.
Liability of Attorneys to serve as Jurymen. -New Bills in Parliament.
places as are herein mentioned, shall and Notes, 33 (p. 42 in 4to edition), he had may respectively take and make all inquests his writ of privilege to excuse him from and inquiries by jurors of the same descrip- serving in the trained bands of the city of tion as they have been used aud accustomed to London. In Stone's case, 1 Ventr. 16, 29, do before the passing of this act.”
a copyholder of a manor, chosen collector It thus appears that the exemption of of the lord's rent, the privilege was allowed. attorneys in the 2d section does not extend to So in the case of a bailiff of a borough, or a coroners' inquests, except under writs of mayor of a borough. (Officina Brevium, inquiry; and Mr. Wakley, one of the co- 166,174. Evington's case above mentioned, roners for Middlesex, deems them liable to cites and recognizes these two precedents, serve, and contends, we understand, that if on which Lord Mansfield in his judgment they were privileged before the act, that laid great stress ) Again in Richmond's privilege is taken away by the act. This, case, I Barnes' Notes 29, (37 in 4to ed.) however, is manifestly a mistake, for the the Court refused to set aside a writ of pri52d section only leaves to coroners the vilege obtained by the attorney against power to make irquests by “jurors of the serving the office of bailiff. Neither is he same description as they have been used and liable to serve the office of overseer ; Geaccustomed to do.”
rard's case, 2 W. Black. Rep. 1126; and Let us see, then, how the law stood, in see 8 Term Rep. 379 n. this respect, prior to the 6 Geo. 4, c. 50.
Now an attorney, from the necessity of his attendance in Court, has always been
The exemption of the medical profession held exempt from all offices or duties which from serving on juries or inquests is thus prorequire personal service, and this is deemed vided : the 14 Henry 8 exempts Physicians ; a privilege of the Court to which he belongs, the 6 & 7 W. 3, c. 4 exempts Apothecaries, and established for the benefit of the suitor. and the 18 G. 2, c. 15, s. 10, exempts Surgeons. See Mayor of Norwich v. Berry, 4 Burr. 2109, where it is laid down by Mr. Justice Yates, that an attorney shall be exempt from all offices incompatible with his at
NEW BILLS IN PARLIAMENT. tendance in his Court. An attorney (says the learned Judge) has this privilege because he is bound to attend the Court of | This is a bill to improve the practice and which he is a minister. He is entitled to extend the jurisdiction of the High Court of this privilege as much as he is to that of Admiralty of England. It recites that the not being called out of his Court by a suit jurisdiction of the High Court of Admiralty of brought against him in another Court. And Englaud may be in certain respects advantageas he is obliged to this attendance on the ously extended, and the practice thereof imCourt of Common Pleas, therefore he is not that it shall be lawful for the Dean of the Arches
proved ; it is therefore proposed to be enacted, within the bye-law which makes his atten. for the tiine being, to be assistant to, and to exdance requisite in another place : for he ercise all the power, authority and jurisdiction, cannot be necessarily attendant in both and to have all the privileges and protections places at the same time, (p. 2115.) Mr. of the Judge of the said High Court of AdmiJustice Aston said, “ Whilst he continues ralty, with respect to all suits and proceedings to practise, the privilege of not being drawn in the said Court, and that all such suits and from attending the Court is as old as the brought or taking place before the Dean of
proceedings, and all things relating thereto, Court on which he is attendant. The privi- the Arches, whether the Judge of the said lege is instituted for the sake of the suitor.” High Court of Admiralty be or be not at tha
The following, amongst other instances, tiine sitting or transacting the business of the are cited in the same report of the Mayor same Court, and also during any vacancy of of Norwich v. Berry, (p. 2111):— Prouse's the office of Judge of the said Court, shall be case in Cro. Car. 389, where an attorney if the same had been brought or had taken
of the same force and effect in all respects as was elected constable or tithing man, but
place before the Judge himself, and all such discharged from executing the office. In suits and proceedings shall be entered and Venable's case, Cro. Car. 11, an attorney registered as having been brought and as have had been pressed for a soldier, and the writing taken place before the Dean of the Arches of privilege was granted. In the case of sitting for the Judge of the High Court of Evingdon, 2 Str. 1143, an attorney was Admiralty, summoned on the London militia, and ex.
2. Practitioners.—That all persons who now empted. So in Heaton's case, 2 Barnes' are, or at any tiwe bereafter may be entitled to
practise as advocates in the Court of Arches,
are and shall be entitled to practise as 'advo-, to take out a monition from the said High cates in the said High Court of Admiralty : Court of Admiralty, requiring any person being and that all persons who now are or hereafter in possession of any part of the amount awarded may be entitled to act as surrogates or proctors or voluntarily paid, to bring in the same to in the Court of Arches, shall be entitled respec- abide the judgment of the Court concerning tively to practise and act, or be adınitted to the distribution thereof; and in the case of an practise and act, as the case may be, as surro- award the person or persons by whom the gates and proctors in the said High Court of award shall have been made, shall upon moniAdmiralty, according to the rules and practice tion send without delay to the said High Court now prevailing and observed, or hereafter to of Admiralty a copy of the proceedings before be made in and by the said High Court of him and them, and of the award, on unstamped Admiralty, touching the admission and prac- paper, certified under his or their haud; and tising of advocates, surrogates and proctors in the same shall be admitted by the Court as the said Court respectively.
evidence, and the amount awarded or volun3. Jurisdiction. That after the passing of tarily paid shall be distributed according to the this act, whenever any ship or vessel shall be judgment of the Court. under arrest by process issuing from the said 6. That every contract for the division of High Court of Admiralty, or the proceeds of salvage money, whether made prior to or after any ship or vessel having been so arrested shall the performance of any salvage service, and have been brought into and be in the registry every assignment or bargain for the sale of any of the said Court, in either such case the said | share of salvage, and every power of attorney Court shall have full jurisdiction to take cog- j expressed to be irrevocable for the receipt of nizance of ali claims and causes of action of salvage money, and every contract tending to any person in respect of any mortgage of such deprive any party of his just share of salvage ship or vessel, and to decide any suit instituted money or his right thereto, shall be null and by any such person in respect of any such void to all intents and purposes. claims, or causes of action respectively, 7. That the High Court of Admiralty shall
4. That the said Court of Adiniralty shall have jurisdiction to decide all claims and des have jurisdiction to decide all questions as to mands whatsoever, in the nature of salvage for the title to or ownership of any ship or vessel, services rendered to or damage received by or the proceeds thereof remaining in the regis- any ship or sea-going vessel, or in the nature try, arising in any cause of possession, salvage, of towage, or for any necessaries supplied to damage, wages or bottomry, which shall be any foreign ship or sea-going vessel, and to instituted in the said Court after the passing of enforce the payment thereof, whether such this act.
ship or vessel inay have been within the body of 5. That whenever any award shall have been a county, or upon the high seas, at the time made by any justices of the peace, or by any when the services were rendered or damage person nominated by them, or within the juris, received, or necessaries furnished, in respect of diction of the Cinque Ports, by any commis- which such claim is made. sioners, respecting the amount of salvage to be 8. Foreign ships of less value than damages paid, or respecting any claiins and demands and expenses may receive a British register. for services or compensation, which such jus- 9. Evidence.—That in any suit depending tices and comınissioners within their several in the said High Court of Admiralty, the Court jurisdictions are empowered to decide under (if it shall think fit) inay summon before it, the provisions of two acts passed in the second and examine or cause to be examined witnesses year of the reign of King George the Fourth, by word of mouth, and either before or after for remedying certain defects relative to the examination by deposition, or before a comadjustment of salvage, or whenever any suminissioner, as hereinafter mentioned; and notes shall have been voluntarily paid on any such of such evidence shall be taken down in writing account of salvage, services or compensation, it by the Judge or registrar, or by such other shall be lawful for any person interested in ihe person or persons, and in such manner, as the distribution of the amount awarded or paid Judge of the said Court shall direct. to require distribution to be forthwith made 10. That the said Court may if it shall think thereof, and the person or persons by whom fit, in any such suit, issue one or more special such amount shall be awarded, or in the ca:e commissions to some person, being an advocate of voluntary payment, the person by whom the of the said High Court of Admiralty, of not less same shall have been received, shall forthwith than seven years' standing, or a barrister at law proceed to the distribution thereof among the of not less than seven years' standing, to take several persons entitled thereunto, to be certi- evidence by word of mouth, upon oath, which fied in the case of an award under the hand of every such commissioner is hereby empowered the person or persons by whom such amount to adminster, at such time or times, place or shall be awarded; and an account of every such places, and as to such fact or facts and in such distribution shall be annexed to the award; manner, order and course, and under such liand if any person interested in the distribution mitations and restrictions, and to transmit the shall think himself aggrieved on account of its saine to the registry of the said Court in not being made according to the award, or such form and manner as in and by the comotherwise, it shall be lawful for him, within mission shall be directed; and that such comfourteen days after the making of the award, missioner shall be attended, and the witnesses or payment of the money, but not afterwards, shall be examined, cross-examined and re-ex.
amined by the parties, their counsel, proctors, 15. New Trials. That the said Court of or agents, if such parties or either of them Admiralty, upon application to be made within shall think fit so to do; and such commission three calendar months after the trial of any shall, if need be, make a special report to the such issue by any party concerned, may grant Court touching such examination, and the and direct one or more new trials of any such conduct or absence of any witness or other issue, and inay order such new trial to take person thereon, or relating thereto; and the place in the manner hereinbefore directed with said High Court of Admiralty is hereby au- regard to the first trial of such issue, and may thorized to institute such proceedings, and by order of the saine Court direct such costs make such order or orders upon such report as to be paid as to the said Court shall seem fit, justice may require, and as may be instituted upon any application for a new trial, or upon or made in any case of contempt of the said any new trial, or second or other new trial, Court.
and may direct by whom and to whom and at 11. That it shall be lawful in any suit de what tiines and in what manner such costs pending in the said Court of Admiralty, for shall be paid. the Judge of the said Court, or for any such 16. That the granting or refusing to grant commissioner appointed in pursuance of this an issue, or a new trial of any such issue, inay act, to require the attendance of any witnesses, be matter of appeal to her Majesty in council. and the production of any deeds, evidences, 17. Bills of exceptions to be allowed on books or writings, by writ to be issued by such trials of issues. judge or commissioner in such and the saine 18. Record of the issue to be transınitted to form, or as nearly as may be, as that in which the Court of Adiniralty. a writ of subpæna ad testificundum, or of sub. 19. Provisions of 2 & 3 W, 4, c. 92, as to pæna duces tecum, is now issued by her Ma- appeals to apply to suits in Court of Admiralty jesty's Court of Queen's Bench at West. under this art. 3& 4 W.4, c. 41, Privy Council minster; and that every person disobeying any Act, to apply in same inanner. such writ so to be issued by the said judge or 20. Rules and Orders.—That it shall be law. commissioner shall be considered as in con- ful for the Judge of the said High Court of tempt of the said High Court of Admiralty, Admiralty from time to time to make such and may be punished for such coutempt in the rules, orders and regulations respecting the said Court,
practice and mode of proceeding of the said 12. The provisions of 3 & 4 W. 4, c. 42, with Court, and the conduct and duties of the officers respect to the admissibility of the evidence of and practitioners therein, as to hiin shall seem witnesses interested on account of the verdict or fit, and from time to time to repeal or alter judgment, shall extend to the admissibility of such rules, orders or regulations: Provided evidence in any suit pending in the said Court of always, that no such rules, orders or regula. Adıniralty, and the entry directed by the said act tious shall be of any force or effect until the to be made on the record of judgment shall be same shall have been approved by her Majesty made upon the documeut containing the final in council. sentence of the said Court, aud shall have the 21. Protection of the Judge of the Court of like effect as the entry on such record. Admiralty from actions.
13. Trial of Issues.-In any contested suit de. 22. Gaolers to receive prisoners committed pending in the said Court of Adıniralty, the by the Court of Adıiralty or by Admiralty said Court shall have power, if it shall think Coroners. fit so to do, to direct a trial by jury of any 23. Prisoners in contempt may be discharged. issue or issues on any question or questions of
24. Jurisdiction to try questions concerning fact arising in any such suit, and that the sul- booty of war. stance and forın of such issue or issues shall 25. Jurisdiction of Courts of Law and Equity be specified by the judge of the said Court at not taken away. the time of directing the same; and if the parties ditfer in drawing such issue or issues, it shall be referred to the judge of the said Court to settle the same; and such trial shall be bad before some judge of her Majesty's Superior In addition to the preceding bill, another has Courts of Common Law at Westminster, at the been brought in, to make provision for the sittings at Nisi Prius in London or Middlesex, Judge, Registrar, and Marshal of the High or before some judge of assize at Nisi Prius, Court of Admiralty in England. It recites as to the said Court shall seein fit.
that the present manner of reinunerating the 14. Costs.—That the costs of such issues, or Judge, Registrar, and Marshal ought not to of such commission as aforesaid, as the judge be continued, and that it is expedient to of the said High Court of Admiralty shall un- make other provisions for the same, and for der this act direct, shall be paid by such party defraying the other necessary expences incior parties, person or persons, and be taxed by dental to the Court. It is therefore proposed the registrar of the said High Court of Admi- to be enactedralty, in such manner as the said judge shall 1. Judge to be paid by a salary of 4,0001. a direct, and that payment of such costs shall be year. enforced in the same manner as costs between 2. Repeal of 50 Geo. 3, c. 118. Registrar party and party inay be enforced in other pro. to be paid by a salary of 1,4001. ceedings in the said Court.
3. Alarshal to be paid by a salary of 5001.
ADMIRALTY COURT JUDGE AND OFFICERS.