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The Legal Observer,
SATURDAY, NOVEMBER 1, 1856.
STATE AND PROGRESS OF LAW REFORM.
GRIEVANCES OF SUITORS AND PRAC-
WE have been accustomed at the commencement of each legal year to take a general review of the state and progress of law reform, as it affects both the suitor and the practitioner. During upwards of twenty-five years, since this periodical was commenced, many changes have taken place in the law and practice of the courts, some of them to the advantage of the suitor, some to the convenience of the practitioner; but others to the injury of both.
It must not be supposed, however, amidst the complaints we still hear, that nothing important has been effected. It is part of the inheritance of Englishmen to grumble: it is an indication of their desire to attain perfection, especially in the administration of justice; and it cannot be denied that although much has been done in the last quarter of a century, much yet remains to accomplish. We propose to set forth some of the remaining grievances, both of the suitors and the profession,noticing, in fairness and candour, the relief, however partial, which has been from time to time afforded.
It is proper, in the first place, to consider the interests of the Suitors, the clients of the profession. We would therefore call attention
1st. To the Taxes on the administration of justice. And here we bear in mind that on the previous suggestion of Lord Erskine, and during the attorney-generalship of Lord Lyndhurst, the stamps on proceedings in the courts of law and equity were abolished; and that we are indebted to Lord Truro, during his chancellorship, for the relief which was afforded by transferring the payment of the salaries of the equity judges, amounting to upwards of £20,000 a-year, from the Suitors' Fund to the Consolidated Fund.
Next we have to notice the large fees of office and court still imposed on the suitors in the various steps of a suit in chancery. In this branch of grievance, also, Lord Truro and other Chancellors have reduced fees to the amount of several thousands a-year; but the VOL. LII. No. 1,495.
grievance still remains of the burden of the compensation on abolished offices. It may have been just that liberal pensions should be granted to the holders of office; but the State having made the change for the benefit of the community at large, should surely bear the burden, and not the unfortunate suitors of the present generation, who, in order to obtain their rights or resist unjust demands, are compelled to resort to these tribunals.
2. Another suitors' grievance is the compulsory submission to compromises at a trial, references to arbitration, nonsuits from temporary defects of evidence, or costly postponements. It must here be admitted that the last Common Law Procedure Act has provided a remedy for one of these complaints, by empowering the judge to adjourn a trial; but the practice of enforcing a reference or a compromise remains yet to be effectually resisted. A suitor has an undoubted right to demand the verdict of a jury. It rarely happens that in opposition to his counsel and attorney he resists the advice which is offered; but he has a strict right to a full hearing and a patient decision. It will not be forgotten that Lord Chancellor Lyndhurst, yielding to the demand of a firm or it may be an obstinate-suitor, sat to hear him far into the "watches of the night."
3. We may set down as another public grievance, affecting suitors, jurors, witnesses, and all who are in any way concerned or interested in the due administration of justice, the distant, inconvenient, insufficient, and illconstructed courts adjoining Westminster Hall. They are not, in fact, as anciently, in Westminster Hall, but modern make-shifts in the vicinity. They are not sufficient in number or in size. They are not, and cannot for want of space, be supplied with the most common and ordinary accommodation for the proper discharge of the business of the courts, and the convenience of those who are in attendance. The judges and the bar are, of course, better accommodated than any other class; but even they are very insufficiently provided for. There are no libraries nor consultation rooms; no rooms for suitors, solicitors, or witnesses. Above all, nothing can be more absurd than the holding these courts in the south-west corner of the metropolis, several miles away from nine-tenths of the inhabitants. On the
442 State and Progress of Law Reform.-New Statutes effecting Alterations in the Law.
other hand, a site is proposed in the very centre of London, surrounded by the chambers of 2,000 lawyers of both branches of the profession, on the borders of the Cities of London and Westminster, and calculated to accommodate under one great roof, not only all the various courts (now thrice the number of the last century), but all the offices for the transaction and despatch of business, now scattered in various inconvenient places considerably distant from each other, and occasioning much delay to the suitors, and inconvenience to their legal representatives.
So far as to a few of the further reforms which are requisite in behalf of the suitors and the public, and to these and other topics, we may hereafter advert.*
In a subsequent number we propose to consider the principal grievances of the practitioners. For the present, we may concisely state them. They are
1. Exclusion from offices of honour and distinction, which they formerly possessed or ought to enjoy, including Government solicitorships, which, contrary to the spirit of the statutes relating to attorneys, are often bestowed on members of the bar.
2. Exclusion from the inns of court, their libraries and lectures, and the extension of the time required in passing from one branch of the profession to the other.
3. Unjust and unequal taxation, especially in regard to the annual certificate duty.
4. Encroachments on the rights of solicitors by certificated conveyancers practising under the bar, not in the manner of special pleaders, advising on pleadings and evidence, but negotiating loans, and acting in all respects as solicitors in conveyancing matters.
couragements to persevere in more extensively uniting the general body of attorneys, and by effecting further improvements, secure the learning and respectability of the profession, and thereby promote the true interest of the public.
NEW STATUTES EFFECTING ALTE-
MERCANTILE LAW (SCOTLAND) AMENDMENT ACT (19 & 20 Vict. c. 60).
1. Goods sold, but not delivered, not to be attachable by creditors of the seller.
2. Seller not entitled to a right of retention generally against second purchaser.
3. Arrestment and poinding of goods by seller. Rights of landlord not to be affected.
Seller not held to warrant goods, except there
be an express warranty in contract.
Guarantees, &c. to be in writing.
Guarantees to or for a firm not to be binding after any change of the firm, except in special cases.
8. Cautioners not to be entitled to benefit of discussion.
Discharge of one cautioner to operate as a dis
charge to all.
Date of bills or notes may be proved by parole. Acceptance of bills of exchange must be in writing.
12. All bills drawn within the United Kingdom,
13. Notarial protest not to be necessary, except
5. In considering the invasion of the province of regularly admitted attornies by numerous classes of agents, we may notice a large 15. body of Parliamentary agents, who are not members of the profession, nor have received any regular legal education.
6. Especially the subject of the remuneration of solicitors, improvements in which have been so long expected, will again require to be urgently brought forward."
It must not, however, be overlooked that during the last twenty-five years several important steps have been taken by the solicitors in furtherance of their rights and interests. The formation of the Incorporated Law Society, the establishment of its lectures, library, and examinations, and its frequent applications to the superior courts to repress malpractice, with the exertions of several provincial law societies, and that of the Metropolitan and Provincial Law Association, have largely tended to raise the character and position of the attorneys and solicitors, and secured the attention of the Legislature and the respect of the press. These are great en
* Amongst other reforms the Ecclesiastical Courts must be considered.
16. Holder of bill or note indorsed after period of payment to be subject to objections, &c. Carriers to be liable for losses by accidental fires.
Every port in the United Kingdom, &c. to be deemed a home port.
19. Court of session to make regulations for carrying act into effect.
20. Title of act.
21. Act to apply to Scotland only.
The following are the title, preamble, and sections of the act:
An Act to amend the Laws of Scotland affecting
WHEREAS inconvenience is felt by persons engaged
New Statutes effecting Alterations in the Law.
and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. From and after the passing of this act, where goods have been sold, but the same have not been delivered to the purchaser, and have been allowed to remain in the custody of the seller, it shall not be competent for any creditor of such seller, after the date of such sale, to attach such goods as belonging to the seller by any diligence or process of law, including sequestration, to the effect of preventing the purchaser or others in his right from enforcing delivery of the same; and the right of the purchaser to demand delivery of such goods shall from and after the date of such sale be attachable by or transferable to the creditors of the purchaser.
2. Where a purchaser of goods who has not obtained delivery thereof shall after the passing of this act sell the same, the purchaser from him or any other subsequent purchaser shall be entitled to demand that delivery of the said goods shall be made to him and not to the original purchaser; and the seller, on intimation being made to him of such subsequent sale, shall be bound to make such delivery, on payment of the price of such goods, or performance of the obligations or conditions of the contract of sale, and shall not be entitled, in any question with a subsequent purchaser, or others in his right, to retain the said goods for any separate debt or obligation alleged to be due to such seller by the original purchaser: Provided always, that nothing in this act contained shall prejudice or affect the right of retention of the seller for payment of the purchase price of the goods sold, or such portion thereof as may remain unpaid, or for performance of the obligations or conditions of the contract of sale, or any right of retention competent to the seller, except as between him and such subsequent purchaser, or any such right of retention arising from express contract with the orginal purchaser.
3. Any seller of goods may attach the same while in his own hands or possession, by arrestment or poinding, at any time prior to the date when the sale of such goods to a subsequent purchaser shall have been intimated to such seller, and such arrestment or poinding shall have the same operation and effect in a competition or otherwise as an arrestment or poinding by a third party.
4. Nothing herein-before contained shall prejudice or affect the landlord's right of hypothec and sequestration for rent.
5. Where goods shall, after the passing of this act, be sold, the seller, if at the time of the sale he was without knowledge that the same were defective or of bad quality, shall not be held to have warranted their quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller shall be considered, without such warranty, to warrant that the same are fit for such purpose.
6. From and after the passing of this act, all guarantees, securities, or cautionary obligations made or granted by any person for any other person, and all representations and assurances as to the character, conduct, credit, ability, trade, or dealings of any person, made or granted to the effect or for the purpose of enabling such person to obtain credit, money, goods, or postponement of payment of debt, or of any other obligation demandable from him, shall be in writing, and shall be subscribed by the person undertaking such
guarantee, security, or cautionary obligation, or making such representations and assurances, or by some person duly authorised by him or them, otherwise the same shall have no effect.
7. No guarantee, security, cautionary obligation, representation, or assurance granted or made after the passing of this act to or for a company or firm consisting of two or more persons, or to or for a single person trading under the name of a firm, shall be binding on the grantor or maker of the same in respect of anything done or omitted to be done, after a change shall have taken place in any one or more of the partners of the company or firm to which the same has been granted or made, or of the company or firm for which the same has been granted or made: unless the intention of the parties that such guarantee, security, cautionary obligation, representation, or assurance, shall continue to be binding, notwithstanding such change, shall appear either by express stipulation, or by necessary implication from the nature of the firm or otherwise.
8. Where any person shall, after the passing of this act, become bound as cautioner for any principal debtor, it shall not be necessary for the creditor to whom such cautionary obligation shall be granted, before calling on the cautioner for payment of the debt to which such cautionary obligation refers, to discuss or do diligence against the principal debtor, as now required by law; but it shall be competent to such creditor to proceed against the principal debtor and the said cautioner, or against either of them, and to use all action or diligence against both or either of them which is competent according to the law of Scotland; provided always, that nothing herein contained shall prevent any cautioner from stipulating in the instrument of caution that the creditor shall be bound before proceeding against him to discuss and do diligence against the principal debtor.
9. From and after the passing of this act, where two or more parties shall become bound as cautioners for any debtor, any discharge granted by the creditor in such debt or obligation to any one of such cautioners without the consent of the other cautioners shall be deemed and be taken to be a discharge granted to all the cautioners; but nothing herein contained shall be deemed to extend to the case of a cautioner consenting to the discharge of a co-cautioner who may have become bankrupt.
10. From and after the passing of this act, where any bill of exchange or promissory note shall be issued without date, it shall be competent to prove by parole evidence the true date at which such bill or note was issued: provided always, that summary diligence shall not be competent on any bill or note issued without a date.
11. No acceptance of any bill of exchange, whether inland or foreign, made after the thirty-first day of December, 1856, shall be sufficient to bind or charge any person unless the same be in writing on such bill, or if there be more than one part of such bill, on one of the said parts, and signed by the acceptor or some person duly authorised by him.
12. Every bill of exchange drawn in any part of the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of her Majesty, and made payable in or drawn upon any person resident in any part of the said United Kingdom or Islands, shall be deemed to be an inland
New Statutes effecting Alterations in the Law.
bill; but nothing herein contained shall alter or affect the stamp duty, if any, which but for this enactment would be payable in respect of any such bill.
13. From and after the passing of this act, where any inland bill of exchange shall be presented for acceptance or payment, and the same shall be dishonoured by not being accepted or paid, or where any promissory note shall be presented for payment, and dishonoured by not being paid, it shall not be necessary that a notarial protest shall be taken on such bill of exchange or promissory note in order to preserve recourse against the drawer or indorser of such bill or promissory note respectively; but it shall be sufficient to prove such presentment and dishonour, to the effect of preserving recourse as aforesaid by other competent evidence, either written or parole: Provided always, that nothing herein contained shall be taken to affect the necessity for a notarial protest in order to entitle the holder of any bill or note to proceed with summary dilligence thereon.
14. Where any inland bill of exchange shall be presented for acceptance or payment, and such acceptance or payment shall be refused, or where any promissory note shall be presented for payment, and payment shall be refused, notice of the dishonour of such bill or promissory note by such refusal to accept or pay shall, in order to entitle the holder to have recourse to any other party, be given in the same manner and within the same time as is required in the case of foreign bills by the law of Scotland.
15. Where any bill or note has been lost, stolen, or fraudulently obtained, the holder of such bill or note suing or doing diligence thereon shall be bound to prove that value was given by him for the same; but such proof may be made by parole
16. When any bill of exchange or promissory note shall, after the passing of this act, be indorsed after the period when such bill of exchange or promissory note became payable, the indorsee of such bill or note shall be deemed to have taken the same subject to all objections or exceptions to which the said bill or note was subject in the hands of the indorser.
17. From and after the passing of this act, all carriers for hire of goods within Scotland shall be liable to make good to the owner of such goods all losses arising from accidental fire while such goods were in the custody or possession of such carriers.
18. In relation to the rights and remedies of persons having claims for repairs done to or supplies furnished to or for ships, every port within the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of her Majesty, shall be deemed a home port.
19. The court of session is hereby empowered from time to time, after the passing of this act, to make such regulations by act or acts of sederunt as the said court may deem meet for carrying into effect the purposes of this act: Provided always, that within fourteen days from the commencement of any future session of Parliament there shall be transmitted to both Houses of Parliament copies of all acts of sederunt made and passed under the powers hereby given.
20. In citing this act it shall be sufficient to use the expression "The Mercantile Law Amendment Act, Scotland, 1856."
21. Nothing in this act contained shall apply to any part of the United Kingdom except Scotland.
DEEDS (SCOTLAND) act. (19 & 20 Vict. c. 89.)
1. After September 1, 1856, pages of deeds and writings need not be marked by numbers.
The following are the title, preamble, and section of the act.
An Act to abolish certain unnecessary Forms in the framing of Deeds in Scotland.
[29th July, 1856.] WHEREAS an Act of the Scottish Parliament was passed in the Sixth Session of the First Parliament of His Majesty King William, intituled Act allowing Securities, &c., to be written Bookways, which Act statutes and ordains that it shall be lawful to write any Contract, Decreet, Disposition, Extract, Transumpt, or other Security by way of Book, in Leaves of Paper, provided that every page be marked by the number, first, second, &c., and signed, and that the end of the last page make mention how many pages are therein contained, in which page only witnesses are to sign in writs and securities, where witnesses are required by law and whereas the safeguards prescribed by the said act, other than the said provision as to marking every page by number, have been found in practice to be of themselves amply sufficient for the purposes thereof, and the said provision as to marking every page by number has been very generally neglected in practice, and it would therefore be beneficial to and for the Security of the Public that the same should be abolished: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same,
1. That from and after the first day of September in the year one thousand eight hundred and fiftysix it shall not be competent to institute or to insist in or maintain any challenge of or exception to any deed or writing aforesaid, or any deed or writing of any description whatever, on the ground that the pages thereof are not marked by numbers; and it shall no longer be necessary to mark the pages of any deed or writing by numbers, any law or practice to the contrary notwithstanding: Provided always, that nothing herein contained shall be construed to affect any question which may have been in dependence in any Court prior to the passing of this act, or any judgment already pronounced, or any decreet which has already gone out, or the provision of the said recited act, or of any other act or acts of Parliament, as to mentioning in the Testing Clause the number of the pages of which the deed consists, or the provision as to signing each page of the deed, or any other provision of the said recited act.
MARRIAGE LAW (SCOTLAND) AMENDING ACT. (19 & 20 Vict. c. 96.)
1. Declaring under what circumstances marriages solemnised in Scotland shall be valid.
2. Certificated copy of entry by sheriff depute that parties were married, and that one of them lived in Scotland twenty-one days preceding such marriage, conclusive as to its validity.
New Statutes.-Review: Oke's Magisterial Formulist.-Law of Costs.
3. No conviction for, nor registration of, irregular
marriage, without proof of previous residence.
The following are the title, preamble, and sections of the act:
An Act for amending the Law of Marriage in Scotland. [29th July, 1856.]
WHEREAS it is expedient to amend the law touching marriages in Scotland: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. After the thirty-first day of December one thousand eight hundred and fifty-six, no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid, unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage; any law, custom, or usage to the contrary notwithstanding.
2. If any persons who shall have contracted an irregular marriage in Scotland after the day and year aforesaid shall within three months thereafter present a joint application for a warrant to register such marriage to the sheriff or sheriff substitute of the county where such marriage was contracted, and shall prove to his satisfaction that they have been married to one another, and that one of them had lived in Scotland for twenty-one days next preceding such marriage, or had his or her usual residence in Scotland at the date thereof, such sheriff or sheriffsubstitute shall certify the same under his hand, and shall thereupon grant warrant to the registrar of the parish or burgh in which the marriage was contracted, who shall forthwith enter such marriage in the register of marriages kept by him, in terms of an act of the seventeenth and eighteenth years of her present Majesty, chapter eighty; and any certified copy of such entry, signed by such registrar, and which such registrar is hereby required and empowered to give, charging for the same the sum of five shillings, shall be received in evidence of such marriage, and of such residence or of such previous living twenty-one days in Scotland, in all Courts in the United Kingdom and dominions thereunto belonging.
3. It shall not be lawful, after the date aforesaid, to convict any parties of having irregularly contracted marriage, unless there shall be adduced to the justice or justices of the peace, magistrate or magistrates, before whom the complaint against such parties has been brought, sufficient proof, other than the acknowledgment of such parties, that one of them had at the date thereof his or her usual residence in Scotland, or had lived in Scotland for twenty-one days next preceding such marriage; nor shall it be lawful for any registrar of births, deaths, and marriages in Scotland to register any marriage under the provisions of the said recited act, on the production of an extract of a conviction for having irregularly contracted marriage, unless such conviction shall bear that such sufficient proof as aforesaid was so adduced.
NOTICES OF NEW BOOKS.
The Magisterial Formulist: being a complete collection of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, and Attorneys; with an Introduction, Explanatory Directions, Variations and Notes. By GEORGE C. OKE, Assistant Clerk to the Lord Mayor of London, Author of "The Magisterial Synopsis," "The Law of Turnpike Roads," &c., &c. 2nd Edition, with considerable additions. London Butterworths, 1856.
SINCE the publication of the previous edition of this work, numerous alterations in magisterial law have taken place materially affecting the forms of proceeding: and Mr. Oke has embodied them in the present edition, and added many new titles. In various parts the collection has been remodelled and enlarged, and several improvements effected in the
arrangement of the forms.
After an able introduction and explanatory observations on the provisions in the statutes as to forms of proceeding the arrangement of the collection of precedents and the manner of using the forms, Mr. Oke divides the contents of the volume in the following manner :—
I. Summary convictions and orders; comprising1st, General forms or outlines; 2nd, Special forms of statements of offences; 3rd, Forms applicable to the offences to which the 11 & 12 Vict. c. 43, does not extend; 4th, Criminal Justice Act.
II. Indictable offences; comprising-1st, General forms or outlines; 2nd, Statements of indictable offences.
III. Other proceedings out of sessions; comprising -1st, Forms for use in special sessions matters; 2nd, Forms for use in matters to be done in petty sessions or by one justice.
At the suggestion of other magistrates' clerks, Mr. Oke has prefixed to the work a list of all the necessary forms required to be printed or purchased for use in a petty sessional division, and we doubt not that the work will continue to receive the patronage of the magistrates, their clerks, and the profession generally.
Mr. Oke's "Magisterial Synopsis," which has passed through four editions, is, we understand, again in the press for a new and revised edition.
LAW OF COSTS.
OF SUIT BY MORTGAGEE TO ASCERTAIN PRIORITIES ON ESTATE.
Certain estates, on which the incumbrances were very numerous, had been sold under a power of sale, and one of the puisne incumbrancers instituted a suit against the other mortgagees and some of the purchasers, to secure the surplus fund, and ascertain the