enabling him in that behalf, order and direct as follows, that is to say :

1. So much of the general order bearing date the 3rd day of December, 1852, as directs that every officer of the Court of Chancery who shall receive any document to which a stamp shall be affixed shall immediately upon the receipt thereof obliterate or deface such stamp, by impressing thereon a seal to be provided for that purpose, but so as not to prevent the amount of the stamp from being ascertained, and that no such document shall be filed or delivered out until the stamp thereon shall be obliterated or defaced as aforesaid, shall be and is hereby discharged.

2. Every officer of the Court of Chancery who shall receive any document to which a stamp shall be affixed, pursuant to the orders of court in that behalf, shall immediately upon the receipt of such document cancel or deface the stamp thereon by writing upon such stamp his name, or the initial letters of his name, in such a manner as to show clearly and distinctly that such stamp has been made use of, and so that the same may not be again used; and no such document shall be filed or delivered out until the stamp thereon shall have been cancelled or defaced in manner aforesaid.

3. In all cases where stamps impressed upon adhesive paper are used, the stamp affixed to the document shall be of an amount corresponding as nearly as is practicable with the amount of the stamp which such document requires, in order that no greater number of adhesive stamps may be affixed to any document than is actually necessary. (Signed) CRANWORTH, C.

REVIEW OF THE SESSION 1856.

FROM THE PARLIAMENTARY DEBATES.

Ir may be useful to give an abridgment of the speeches made in the House of Commons towards the close of the session, on the 25th July, so far as they relate to proposed measures which are interesting to the legal practitioner.

Mr. Disraeli thus describes the subjects which were brought before Parliament during the session : "We have been asked, in the first place, to construct a high court of appeal, the highest court of appeal in the last instance. All will acknowledge that that is a question which may be described as the greatest of legal questions. In all countries it may be described as the greatest of legal questions; but in this country it is more than the greatest of legal questions, because it is also the greatest of constitutional questions, because, in having to consider the creation and constitution of a high court of appeal, we have, from the nature of our institutions, not only to fulfil that great object, but we have incidentally to consider even the very elements of a Senate, or rather of an Upper Chamber. We have been called upon this year to consider a new law of partnership, framed upon new principles, and adapted to this advanced age, which should facilitate the application of capital to commerce in the most commercial country in the world. We have been called upon to consider the whole law of divorce, and an important change in the law of marriage. We have been called upon to consider the whole discipline of the church; the testamentary jurisdiction of the country; the police of the country; a reform of the most ancient, the most wealthy, and the most pow

257

erful municipality, intimately connected with the history and liberties of England; the superannuation of the whole civil service of the country; the criminal appropriation of trust property; the education of a whole kingdom; the retirement of bishops from their sees, and last, but not least, the correct means of ascertaining the most important produce of the empire by a system of agricultural statistics."

Next was noticed the series of measures announced in the Speech from the Throne at the commencement of the sessions.

"The first-which was the simplest-applied to the assimilation of the mercantile law of England and of Scotland. The second was that improvement in the law of partnership, founded altogether upon new principles, and aiming at the increased application of capital to commerce, to which I have already referred. The third was a measure which was to relieve the mercantile marine of this mercantile country from charges of great weight under which it had long laboured, and against which it had long complained. The fourth series of measures, and perhaps the most important, consisted of large and extensive reforms, first in the law of Great Britain, and, next, in the law of Ireland.

"With respect to the first question-the assimilation of the mercantile law of England and Scotland -I cheerfully admit that the Government may be considered to have fairly redeemed their pledge. A measure to change the mercantile law of Scotland has now passed, I believe, both Houses, and a measure to change the mercantile law of England was introduced in this House. It contained, indeed, a principle of the most dangerous kind, which aimed at terminating the necessity in commercial transactions of written contracts; but the practical sagacity of the House of Commons and the protest of the whole commercial community saved the country from the dangers of that unfortunate proposition. That portion of the bill was defeated, and the measure so amended was passed. We may therefore admit that the Government, on the whole, have fairly redeemed the pledge they gave with respect to the first series of measures mentioned in the gracious Speech.

I am

"How, Sir, did we proceed with regard to the improvement of the law of partnership? What were the fortunes of that great bill which was to be founded upon new principles, which was to be adapted to this advanced and enlightened age, and which, in this peculiarly commercial country, was to facilitate the application of capital to commerce? bound to admit that there was every evidence of sincerity on the part of the Government with respect to this second head, for on the first day we met-the 1st of February-the important measure was introducsd by the Vice-President of the Board of Trade. After discussion-after being amended and reprinted on the 25th of February-on the 10th of March that measure was abandoned. But her Majesty's Government, determined to deal with a question which they believed to be of paramount importance, lost no time in profiting by the discussion which had taken place, and on the 7th of the ensuing month a second bill to amend the law of partnership, and to accomplish all those great objects which I have enumerated, was introduced by the right hon. gentleman. I find that this second bill was introduced on the 7th of April, and on the 14th of July I find it was abandoned. Here we have an important subject recommended to our attentive consideration' in the

gracious Speech from the Throne, and not only one bill brought in and abandoned by her Majesty's ministers, but a second bill on the same subject introduced, and also abandoned."

To this part of the right honourable member's speech Mr. Lowe candidly conceded :

The

"That the Partnership Amendment Bill was not an adequate redemption of that passage in the Queen's speech, in which it was announced that measures for the amendment of the law of partnership would be laid before Parliament; but the right hon. gentleman had entirely forgotten a very important measure -not second to any which had passed this session-which nobly redeemcd, and even more than redeemed, the pledge contained in the royal speech. The Joint Stock Companies Bill was not called a measure to amend the law of partnership, but it did amend the law of partnership very materially, and it placed the law in a more advanced position than it stood upon the statute book of any country in the world, not even excepting America. right honourable gentleman said he (Mr. Lowe) had withdrawn that bill early in March-and that was true enough so far as it went. He had withdrawn the bill because the right honourable gentleman the member for Oxfordshire-to whom, by the way, the right honourable gentleman the member for Buckinghamshire seemed to delegate the legislative department of the Opposition-had taken some objection to it, on its being reprinted, on a point connected with the forms of the House. He was not experienced in the forms of the House, but, to show that he had no wish to take an unfair advantage by what he had done, he had withdrawn the bill and introduced a fresh one. With regard to the Partnership Amendment Bill, it received a second reading and passed through committee, but between the third reading and the passing of the bill a clause was inserted entirely repugnant to the principle of the bill. He did not complain of this course-he had no right to do so-but the principle of the bill being overthrown he withdrew it. He did not 'abandon' it, he withdrew it, having been defeated by an adverse vote of the House, and he conceived he had no other course left him without being false to the principle on which he had introduced the bill. So much for two of the cases of abandonment' which the right honourable gentleman had paraded in his speech."

Passing over the animadversions of Mr. Disraeli with regard to the unsuccessful efforts of Mr. Baines to improve the Poor Laws, the failure to amend some of the laws relating to Ireland; and the subject of the Local Dues and Passing Tolls imposed on our Mercantile Marine (which do not immediately concern our readers)-we come to the proposed improvements in the Law.

"First, there was a bill to establish a jurisdiction in the matter of wills and administration. That bill was introduced on the 4th of March, and on the 10th of July it was abandoned. The next bill was the great measure to found an appellate jurisdiction in the last instance. It was brought from the Lords on the 9th of June, and on the 10th of July it was abandoned. The third measure related to a subject of no less importance than the law of divorce, which was introduced to us on the 4th of July. Let me remind the House of the circumstances under which that bill came down to us. After

great difficulty it had passed through the House of Lords, where it had been subjected to the criticism of some of the greatest intellects of the country, and it dealt successfully with most of those great points which are the opprobrium of our law of marriage. That bill was introduced into our House on the 4th of July, and on the 17th it was abandoned. The next measure of legal reform related to a subject which is a disgrace-I hesitate not to say -to this civilized and enlightened age-it dealt with the criminal appropriation of trust property. I can conceive no subject more deserving of the

attention of the Government than this. The most iniquitous consequences have for a long series of years resulted from the state of the law upon this subject; and I am bound to say that, speaking upon the highest authority-without which I should not presume to allude to the question-I believe that what is taking place in this country almost every day renders it still more necessary that a bill of this kind should pass. That bill was abandoned on the 21st of July. The next measure-the Church Discipline Bill—was not abandoned, but it was introduced into the other House, and there rejected on a division."

The eloquent leader of the opposition next proceeded to criticise various other proposed amendments, such as the better regulation of the civil service, the corporation of London, the local management of the metropolis, the promotion of the public health, the regulation of charities, agricultural statistics, &c.

A very able, but general, answer to the attack on the Government, was given by Lord Palmerston to the following effect:

I

"The great charge which the right hon. gentleman has made is that a large number of measures relating to important matters, the merit of which he did not dispute, which we have introduced to Parliament have failed, and he has inquired the cause. might, if I were disposed to argue the question in that way, speak of it as a question of internal dissensions in this House-Si causam quæris circumspice.' If we ask the cause why so many of these measures have failed, I might answer that it was on account of the obstruction they met with from gentlemen on the other side of the House. (No, no!') They had failed from the resistance which they met in the House; but I do not state that in accusation of those whose obstruction has been the cause of the failure; I do not state this with the view of reproaching them for their conduct, because, for the reasons I have to state, I do not think there is any just cause of complaint that good measures are obstructed.

"If we were in an arbitrary country in which the sovereign power had nothing to do but to call round it men conversant with the different matters on which it might be necessary that new laws should be passed-if we had nothing to do but to collect the cumulative wisdom of different persons learned in the matters on which we wished to legislate, and having framed laws in accordance with their views at once to issue them on authority, and cause them to be carried into effect-then, of course, measures would not be brought forward one day to be withdrawn the next, or abandoned after long and earnest discussion. But we must recollect that such is not the constitution of this country, and much it is to

our advantage that it is not so.

When, however, we are enjoying great advantages from our constitutional organisation, we must take the rough and the smooth, the good and the bad together, and must not repine at defects which are inherent in our system, from which, on the whole, we realise such great and incalculable advantages.

"The Government finds on looking round that in certain departments of the State, in particular portions of the administrative system, affecting, perhaps, our commerce, our agriculture, and other interests, abuses and inconveniences have arisen, requiring practical remedies to be applied. The Government does its part; it devises measures calculated, as it thinks, to accomplish the ends in view, and submits those measures to Parliament; and when they come into this House no one supposes that their success or failure is to depend entirely upon their merit or demerit. Measures of great importance, calculated to produce important reforms in particular branches of the system into which abuses have crept, must necessarily meet with great resistance, partly from prejudice, partly from want of information, and partly from interested motives; because in all abuses there must be a certain number of men who profit by them, and who in our representative system are enabled to bring their resistance to bear upon this House. Therefore it is no reflection on a measure that it is opposed, and that when it comes into Parliament it should meet, in the first instance at least, with such resistance as to cause its failure. And so it is with regard to many of those measures to which the right hon. gentleman has adverted.

"I do not state that as a reproach to those by whose obstruction these measure have failed. It is the inevitable accompaniment of free discussion. There is, of course, the intercourse of members of Parliament with persons out of the House whose organs they necessarily are, and I may observe that if all classes of persons out of doors have not organs in this House, then we have an imperfect representation of the community. Any man who expects that great improvements in any parts of our system can be completed on the first attempt, and in one session, will be greatly disappointed. It never has been so, it never will be so, and it never can be so. The best measures under a representative Government cannot be carried until they are well discussed, till prejudices have been overcome, and interests silenced. If carried they would not work well, unless the country was convinced not only of the abuse, but of the goodness of the remedy that was to be applied. If any man will look back to the different improvements that have been made by the legislature in this country he will see that such has been the courts of events. And, though this slowness of progress is mortifying to those who bring in measures of improvement though it is dissappointing to that portion of the community out of doors who are anxiously looking for these improvements, and though, perhaps, it exposes this house to censure from those ardent spirits, who, not happening to be here, think that if they were here their energy and eloquence would overcome all resistance, and carry their views into practicethough these dissappointments and mortifications occur, yet the delays that take place must not be regarded as disadvantageous to the country, because measures of improvement must fail in producing their utmost effect if they are carried too hastily, before the public mind is fairly brought into accor

259

dance with such measures, and before they are throughly sifted by ample discussion.

"Therefore I say that, though we must regret that many of those measures which we felt it our duty to introduce in the course of this session have not passed into law, yet a year or a session is but a moment in the history of a people. They are long in the lives of ardent and ambitious men, but they are not long in the history of the progress of a country, and a country need not suppose that because good measures are not passed at once, other measures of the same kind will not at some future time pass into a law. There has been no want of application to their public duties on the part of the members of this House. There never was a session during which, in the same number of days, this House has devoted a greater number of hours by day and by night than in the one now about to close. * * We do not complain of Opposition to the Government, especially when it is founded upon a real conviction, derived from constituencies or large bodies of men out of doors, that the measures proposed are either bad in their nature, overstrained in their enactments, or difficult in their

*

provisions. I do not complain of that; but standing here if I may without presumption undertake a duty which the right hon. gentleman has cast upon me to defend the House of Commons, I say that, in my opinion, there is nothing in any of the statements which the right hon. gentleman has made that ought in the slightest degree to weaken the confidence which the country has felt, and, I maintain, does feel, in this House as a branch of the Legislature."

CORONERS FOR DORSETSHIRE.

ALTERATION OF DISTRICTS.

WHEREAS under and by virtue of an order of her Majesty in council, dated the 11th day of February, 1848, the county of Dorset was divided into six districts for the purposes of the act made and passed in the 7th and 8th years of her Majesty's reign, intitled "An act to amend the law respecting the office of county coroner," and a petition having been presented to her Majesty in council praying that an alteration might be made in the aforesaid division of the said county, her Majesty, by and with the advice of her privy council, was on the 28th July, 1856, pleased to order, that the following parishes now comprehended in the Cerne district of the county of Dorset, namely, the parishes of Alton Pancras, Buckland Newton, Cattistock, Cerne Abbas, Nether Cerne, Chesilborne, Frome St. Quinton, Godmanstone, Glanvilles Wooton, Hillfield, Evershot, Melbury Sampford, Stockwood, Hermitage, Melcome Horsey, Mappowder, Minterne Magna, Puddletrenthide, Pudham, Plush, Sydling St. Nicholas, Chilfrome, Frome Vanchurch, Toller Fratrum, Toller Porcorum, Wraxall, and Wynford Eagle, be taken from the said Cerne district and be added to the Dorchester district in the said order in council mentioned, and that the out parishes of St. Martin and St. Mary in Wareham be added to the said Dorchester district; and it was also ordered that the following parishes, now comprehended in the said Cerne district in the said order in council mentioned, namely, the parishes of Askerswell, Chelborough East, Chelborough West, Chilcombe, Corscombe, Halstock, Hook, North Poorton, Powerstock, Rampisham, Ryme Intrinsica, and

LAW OF COSTS.

RE

OF TRUSTEES OF RELIGIOUS CONGREGATION FUSING TO RETIRE ON BECOMING DISQUALIFIED. A DECREE was made on an information and bill removing three trustees of the Low Meeting House, at Berwick-upon-Tweed, upon their having adopted the opinions of the Free Church of Scotland, whereas by the trusts of the meeting house the congregation was to be in as strict connexion as practicable with the Established Church of Scotland (reported 7 Hare, 445). This decree was affirmed with costs by the Lords Justices in appeal, and it was referred to the master to appoint new trustees in the place of such three trustees, and in the stead of two who had died. Upon the case coming on on further directions, the Vice-Chancellor Wood said

"If a trustee voluntarily retires from a trust like the present on account of difference of opinion, he pays no costs,-whether he will receive costs is a question for the discretion of the court, and may depend upon the circumstances of his retirement.

"But here, all the proceedings in the suit have been occasioned by the trustees' refusal to retire from their trust. They took what the court considered an improper and perverse view as to the duties imposed upon them, and the suit for their removal and all proceedings consequent thereon have been occasioned by their taking that view. All the costs now in question have been caused by this improper conduct on the part of the trustees in refusing to retire from the trust. Whatever differences there may be between this case and that of the AttorneyGeneral v. Murdock, 2 De Gex and S. 122, were disposed of by the decree. The hostile defendants, therefore, must pay the costs of the appointment of the new trustees, except any costs occcasioned by the defendant Thompson being out of the jurisdiction.

The hostile defendants were entitled, however, to appear before the master, to shew that the debts secured by the promissory notes were properly incurred, and were not a breach of trust, and that they ought to be a charge upon the trust property. The relators and plaintiffs must therefore pay those defendants their costs of the inquiry as to the promissory notes and' debts on the trust property. The above costs must be set off against each other. No other order will be made as to the costs of the hostile defendants."

Attorney-General v. Murdock, 2 Kay and J. 571.

LAW OF ATTORNEYS AND SOLICITORS.

ATTACHMENT AGAINST ATTORNEY FOR NOT APPEARING TO ANSWER MATTERS.

A RULE was obtained on the defendant's attorney in a cause, upon notice of the rule to be given to him, on a day named therein, to answer the matters contained in the affidavits upon which the application was founded.

The attorney not appearing on being called three times in open court, he was adjudged to be in contempt, and it was ordered that a writ of attachment be issued forth against him for the same. Easton v. Neville, 18 Com. B. 548.

JUDICIAL COMMITTEE OF THE

PRIVY COUNCIL.

DECISION ON DYCE SOMBRE'S CASE-ONUS PROBANDI-COSTS.

THE final decision in this case was pronounced on the 1st July, by Dr. Lushington, in the presence of the two Lords Justices, and of Sir John Patteson, Sir Edward Ryan and Sir Laurance Peel. The following is a report of so much of the judgment as involves the points of law under which the onus probandi was thrown on the appellants to establish the testator's soundness of mind, in opposition to the prima facie legal presumption, consequent upon the existence of the commission of lunacy against him. The learned judge said :

"Mr. Dyce Sombre, the testator, died on July 1, 1851. On the 25th June, 1849, he executed a will; and on August 13, in the same year, a codicil. The will and codicil are propounded by Mr. Prinsep, one of the executors therein named. On the 26th of January last, after proceedings of almost unexampled length, the judge of the Prerogative Court pronounced against the will and codicil, on the ground that the deceased was not of sound mind when he executed the same; he also condemned Mr. Prinsep, the executor, and the East India Company, who had made common cause with him, in all the costs of this litigation. From this decree an appeal had been presented, and their lordships are now called upon to determine whether the judgment of the court below is well founded or not. The learned judge proceeded with great minuteness to state in detail that in July, 1843, the deceased was found by a commission issued under the authority of the Lord Chancellor to be of unsound mind, and to have been so from October, 1842; that he was allowed to travel in various parts of England under the care of a physician; that he made his escape from Liverpool, and went to Paris; that endeavours were made to reclaim him as a lunatic; that the French government declined to give him up; that an examination was instituted by the French authorities in October, 1843 (with the assistance of physicians of the highest character in Paris), by whom he was deemed to be of sound mind, and consequently remained his own master in France; and that subsequently a petition was presented to the Chancellor for the purpose of having the commission superseded. Lord Lyndhurst gave permission to the deceased to come to England, and he was again examined by physicians appointed by Lord Lyndhurst, who declined to supersede the commission. After this judgment Mr. Dyce Sombre visited Egypt, St. Petersburg, and Brussels, where he caused investigation to be made into his sanity, and all the physicians who were consulted by him at those places reported him to be of sound mind, and in 1847 the whole of his income, after the payment of £4,000 per annum to Mrs. Dyce Sombre, was left to his own disposal.* Under the authority of the Lord Chancellor he was examined by English physicians. The result of this investigation was that Lord Cottenham, in April, 1849, refused the prayer of a petition for superseding the commission,

*This is a remarkable part of the case. If he was deemed competent to dispose of the whole of his enormous income, it may be asked, was he not competent to dispose of the capital?