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The Legal Observer,
SATURDAY, DECEMBER 6, 1856.
PROPOSED COMMON LAW IM-
It would appear from the comprehensive terms of the Commission of Inquiry into the mode of administering Justice in the Common Law Courts, that very extensive alterations are contemplated, and that at all events the Commissioners will be authorised to receive and consider every kind of suggested improvement. We purpose, therefore, from time to time to submit to our readers such observations as occur to us or are communicated by our contributors or correspondents. We would especially direct attention to such practical alterations as will facilitate the transaction of legal business. We conceive that by a due division of labour the judges might more readily and expeditiously dispose of the various kinds of business now brought before them, whether judicial or ministerial.
nent Practice Court, in which a single judge should preside, assisted by one of the masters, with power to the parties, at the peril of costs, of appealing to three of the judges sitting at stated times on such cases.
We are not in favour of a diminution of the number of judges. When we consider the duties they have to perform, we think they lect the vast variety of subjects which come are by no means too numerous. Let us recolbefore the courts at Westminster for adjudication-the trials in London and Westminsterthroughout England and Wales; the trials at over which the judges preside; the circuits the Central Criminal Court; the cases in the Practice Court, and the daily attendance at the Judges' Chambers, with all the new business constantly increasing in the interpretation of acts of Parliament, and enforcing their order to have this large amount of judicial execution; and we must be satisfied that, in business properly done, fifteen judges are not too many.
rience; we see how rapidly they perceive the points in issue, and how admirably they decide them. Now, if the labours of the court were subdivided amongst the judges, each taking a particular class of cases to hear and determine, it seems evident that the result could not fail to be satisfactory both to the suitors and the profession.
The first great question will be whether the three common law courts should not be to a Then it should be borne in mind, that certain extent consolidated, in order that each judges, like other classes of men, become prejudge, or a small number of judges, may pre-eminently skilful by long practice and expe side over a separate court, having jurisdiction in a distinct class of cases, without reference to the particular court in which the action or proceeding may have commenced, but all the judges, according to rotation or arrangement, sitting in a court of appeal from the judgments of the several individual courts. A court of appeal should of course consist of several eminent judges, not less than three in number; but inasmuch as on trials at nisi prius and the assizes, and inasmuch as in the courts of equity on the original hearing of causes, a single judge presides (and that in the most difficult and complicated cases), so it may reasonably be contended that a similar course should be adopted on the argument of
cases before the courts at Westminster.
It may well be inquired whether it can be necessary as we see on many occasionsthat four of the most eminent judges should sit in their "collective wisdom," hearing the arguments of counsel, and deciding, after conjoint deliberation, on some question of practice, involving no material or important principle. It may be asked whether it would not be better that, instead of what is absurdly called the "Bail Court," there should be a permaVOL. LII. No. 1,500.
nience now arises from the number of the There is no doubt that no small inconvefrom the difficulty of procuring the attendcommon law courts sitting at the same time, and it might be objected that if there were as ance of counsel who practice in all the courts; many common law courts sitting on the same days as there are in equity, the present inconvenience would be increased. The leading counsel might, however, select their respective courts, as they do in Chancery, and the difficulty would be at an end. Besides, if it were unavoidable that the same eminent counsel must appear in several courts, it might be arranged that some of the courts should sit on different days. And we see no disadvantage, but the contrary, in providing that the judges should occasionally devote their attention to considering (either at cham
522 Proposed Common Law Improvements-New Statutes effecting Alterations in the Law.
bers or at home) the judgments they have to deliver. The judges ought not to be overworked, and we would indeed say with Lord Lyndhurst, that they should have an opportunity of returning to the "pleasant pursuits of literature," and we believe that neither their intellectual faculties, nor their legal acumen, would suffer by such occasional change of pursuit and occupation.
It is probable, as was contemplated a few years ago, that a change in the present four terms, and in the holding of the two assizes in the country, might be beneficial. Such changes, however, require much consideration, for the last change in the terms, about twentyfive years ago, has not been productive of the expected advantages. It is supposed that three terms of somewhat longer duration than the present would be preferable, and seeing the demand for the speedy administration of justice, three circuits for the trial of civil as well as criminal cases, would be acceptable to the public, and in some cases render it unnecessary to resort to the county courts; and in this view also it would not be expedient to diminish the number of the judges.
In these new arrangements, we conceive that as, under the Common Law Procedure Act, 1854, power is given to the judges to try causes without a jury, one of the judges might hold a court for the decision of actions for the recovery of debts or damages not less than £10. The supporters of the county courts would, of course, make a great outcry against such an alteration; but if there is any truth in the oft-repeated assertion that the small debts courts are eminently popular, where can be the danger or objection to the grant of a concurrent jurisdiction down to £10 in the superior courts? If the county courts are really preferable-if they are cheaper and more expeditious than the superior courtsthey will not suffer by the proposed change.
Amongst other practical improvements, the fifteen masters of the common law courts might have delegated to them some of the ordinary duties now performed by the judges of the superior courts,—such as the granting time to plead, the consideration of the sufficiency of particulars of demand, the administration of oaths, and other matters of routine, which their knowledge of the practice would enable them most satisfactorily to decide. They hold the position occupied in the Court of Chancery by different classes of officers :-taxing masters, registrars, and chief clerks to the judges, who have superseded the masters in Chancery. And as several of the masters are constantly at chambers, their exercising jurisdiction over such practical points as we have suggested, would greatly facilitate and expedite interlocutory proceedings, and relieve the judges of a considerable part of their labour.*
*With new duties, the common law masters would be entitled to increased salaries, which are, even at present, disproportioned to the emoluments of similar officers in the equity courts.
We had occasion recently to notice that some of the courts had risen two or three days during the last term before the usual hour of four o'clock, and the blame was attached partly to counsel, but chiefly to the attorneys, and causes were struck out, and announcements made of stringent regulations for the future. With all due respect to the judges, in their anxiety to save the time of the public," it should not be forgotten, when censuring the practitioners for not being ready to proceed, that unknown difficulties may arise in preparing for a hearing in court. There may be a want of funds, the evidence may be defective, the attorney or his counsel may be ill, or unavoidably detained elsewhere. It may also be submitted to their lordships, that the grievance of the judges being obliged to go home earlier than usual is not so great as that of hurrying the parties into court before they are sufficiently prepared. As already intimated, the labours of the judges are frequently too severe, and an occasional half-holiday by a lack of work ought not much to be lamented, either by the Bench or the Bar.
NEW STATUTES EFFECTING ALTE-
COMMON LAW PROCEDURE AMENDMENT ACT
(19 & 20 Vic. c. 102).
THE following is an analysis of the "Common Law
1. Short title (as above).
2. 16 & 17 Vic. c. 113, incorporated.
3. 18 & 19 Vict. c. 7, and so much of section 103 of 17 & 18 Vict. c. 125, as relates to Ireland, repealed.
4. Court or judge may, by consent of parties, try questions of fact [sect. 1 of 17 & 18 Vict. c. 125].
5. Two judges may sit at the same time for trial of causes pending in the same court [sect. 2]; power to registrars to appoint fit persons to attend the second judge.*
6. Power to court or judge, upon application, to direct arbitration before trial [sect. 3].
7. Special case may be stated, and question of fact tried [sect. 4].
8. Arbitrator may state special case [sect. 5]. 9. Power to judge to direct arbitration at time of trial, when issues of fact left to his decision [sect. 6]. 10. Proceedings before and power of such arbitrator [sect. 7].
11. Power to judge to send back matters for reconsideration to arbitrator [sect. 8].
12. Applications to set aside the award [sect. 9]. 13. Enforcing of awards within period for setting them aside [sect. 10].
* The references within brackets apply to the English Common Law Procedure Act, 1854.
New Statutes effecting Alterations in the Law.
14. If action commenced by one party after all have agreed to arbitration, court or judge may stay proceedings [sect. 11].
15. On failure of parties to appoint arbitrators, the judge may appoint an arbitrator, umpire, or third arbitrator [sect. 12].
16. When reference is to two arbitrators, and one party fail to appoint, the other party may appoint arbitrator to act alone [sect. 13].
17. When the reference is to two arbitrators they may appoint an umpire [sect. 14].
18. Award to be made in three months, unless parties or court enlarge the time [sect. 15].
19. Rule to deliver possession of land pursuant to award to be enforced as a judgment in ejectment [sect. 16].
20. Agreement or submission in writing may be made rule of court unless a contrary intention appear [sect. 17].
41. Appeal upon rule discharged or absolute [sect. 35].
42. Exchequer Chamber and House of Lords to be courts of appeal [sect. 36].
43. Notice of appeal [sect. 37].
45. Form of appeal [sect. 39].
46. Rule nisi granted on appeal, how disposed of [sect. 40].
47. Court of appeal to give judgment of court below [sect. 41].
48. Powers of court of appeal as to costs and otherwise [sect. 42].
49. Error upon award of trial de novo [sect. 43]. 50. Payment of costs upon new trial on matter of fact [sect. 44].
51. Power to court or judge to direct oral examination of witnesses [sect. 46].
52. Proceedings before and upon such examina
21. As to addresses of counsel to juries on trials of tion [sect. 47]; 3 & 4 Vict. c. 105. causes [sect. 18].
22. Power to court or judge to adjourn trials [sect. 19].
23. Affirmation instead of oath in certain cases [sect. 20].
24. Persons making a false affirmation to be subject to the same punishment as for perjury [sect. 21]. 25. How far a party may discredit his own witness [sect. 22].
26. Proof of contradictory statements of adverse witness [sect. 23].
27. Cross-examination as to previous statements in writing [sect. 24].
28. Proof of previous conviction of a witness may be given [sect. 25].
29. Attesting witness need not be called except in certain cases [sect. 26].
30. Comparison of disputed writing [sect. 27]. 31. Certified copy of will to be sufficient evidence. 32. Court or judge may, on the application to such court or judge for such purpose, order certain documents to be taken as sufficient evidence of will, &c.
33. As to costs of proof of will.
34. Provision as to documents produced at trial and not sufficiently stamped [sect. 28].
35. Officer of the court to receive the duty and penalties, and pay them over to the inland revenue [sect. 29]; if officer neglect to pay over monies he shall be proceeded against as directed by 13 & 14 Vict. c. 97.
36. No document to require a stamp [sect. 30]. 37. No new trial for ruling as to sufficiency of stamp [sect. 31].
38. Error may be brought on a special case [sect. 32].
39. Grounds to be stated in rule nisi for new trial [sect. 33].
40. If rule nisi refused, party may appeal [sect. 34].
53. Examination of person who refuses to make an affidavit [sect. 48].
54. Proceedings upon order for examination as under 3 & 4 Vict. c. 105 [sect. 49].
55. Power to court or judge to order production of documents [sec. 50].
56. Power to deliver written interrogatories to opposite party [sect. 51].
57. Affidavits by party proposing to interrogate, and his attorney [sect. 52].
58. Oral examination of parties, when to be allowed [sect. 53].
59. Proceedings upon such rule or order [sect. 54]. 60. Depositions upon such examinations to be returned to master's office [sect. 55].
61. Examiner may make report to the court [sect. 56].
62. Costs of rule and examination to be in the discretion of the court [sect. 57].
63. Judge may order an attachment of debts [sect. 61].
64. Order for attachment to bind debts [sect. 62]. 65. Proceedings to levy amount due from garnishee to judgment debtor [sect. 63].
66. Judge may allow judgment creditor to sue garnishee [sect. 64].
67. Discharge of garnishee [sect. 65].
68. Attachment book to be kept by the masters of each court [sect. 66].
69. As to costs of application for attachment, &c. [sect. 67].
70. Action for mandamus to enforce the performance of duties [sect. 68].
71. Declaration in action for mandamus [sect. 69]. 72. Proceedings upon claim for mandamus [sect. 70].
73. Judgment and execution [sect. 71].
74. Form of peremptory writ [sect. 72]. 75. Effect of writ of mandamus and proceedings to enforce it [sect. 73].
New Statutes effecting Alterations in the Law.
76. The court may order the act required to be done to be done at the expense of the defendant [sect. 74].
77. Prerogative writ of mandamus preserved [sect. 75].
78. Proceedings for prerogative writ of mandamus accelerated [sect. 76].
79. Proceedings on prerogative writ of mandamus [sect. 77].
80. Specific delivery of chattels [sect. 78].
81. Claim of writ of injunction [sect. 79].
82. Form of writ of summons and endorsement thereon [sect. 80].
83. Form of proceedings and of judgment [sect. 81]. 84. Writ of injunction may be applied for at any stage of the cause [sect. 82].
85. Equitable defence may be pleaded [sect. 83]. 86. Equitable defence after judgment [sect. 84]. 87. Equitable replication [sect. 85].
5. Different creditors may be joined in one adjudiea
6. Mode of rendering an adjudication effectual. 7. Securities for eash accounts or credits.
The following are the title, preamble, and sections of the act:
An Act to amend and re-enact certain Provisions of an Act of the Fifty-fourth Year of King George the Third, relating to Judicial Procedure and Securities for Debts in Scotland.
[29th July, 1856.] WHEREAS a bill has been brought into Parliament, intituled "A Bill to consolidate and amend the Laws of Scotland regarding Insolvency and Bankruptcy," by which it is proposed to repeal the act 54 Geo. 3, c. 37, and it is expedient that certain provisions therein contained relating to judicial procedure and securities for debts in Scotland should be amended and re-enacted: Be it enacted as follows:
1. An Arrestment executed to attach the effects of a debtor, as in the hands of a person out of Scotland, 88. Court or judge may strike out equitable plea shall not be held to have interpelled such person or replication [sect. 86].
89. Superior courts of common law may in action of ejectment order real title to be tried in such eject
90. Actions on lost instruments [sect. 87].
91. Jurisdiction under 17 & 18 Vict. c. 104 [sect. 88].
92. Penalty on giving false evidence [sect. 89]. 93. Power to compel continuance or abandonment of action in case of death of parties [sect. 92].
94. Effect of a judgment in ejectment. 95. Claimant in a second ejectment for the same premises against the same defendant may be ordered to give security for costs [sect. 93].
96. Courts may appoint sittings [sect. 95]. 97. Limitation of costs in certain cases.
98. Certain sections of this act to apply to every civil court in Ireland.
99. Master may proceed under sections 98 and 101 of 16 & 17 Vict. c. 113, without order of court; court may direct master to hold inquiries when venue not in Dublin.
100. Provision in case plaintiff in replevin shall delay to file the summons and plaint and proceed to trial.
101. Judgment in replevin for amount of arrears. 102. Master may draw for money lodged as security for costs.
103. Commencement of act.
JUDICIAL PROCEDURE (SCOTLAND).
(19 & 20 Vict. c. 91).
1. Effect of arrestments executed as in the hands of persons out of Scotland.
2. Court of session may regulate judicial sales
3. What proof of insolvency necessary for sales.
from paying to the original creditor, unless proof be made that he, or those having authority to act for him, were previously in the knowledge of such arrestment having been so used.
2. The Court of Session shall have full power to make acts of sederunt for abridging the forms of publication and citation, and regulating the proceedings in processes of sale, ranking, and division, whether at the instance of creditors or of apparent heirs; and in every case of a sale under the authority of the Court of Session it shall be lawful for the purchaser, at any term of Whitsunday or Martinmas subsequent to the term of payment of the price, to lodge the price, with the interest due upon it, in any joint stock bank of issue in Scotland, at such interest as can be procured for it, by doing which, and by giving notice thereof to the agent who carried on the sale, he shall be discharged of the said price; and further, the Court of Session, upon the application of any of the creditors, shall be empowered to make an order on the purchaser to lodge the price and interest, at any of the said terms subsequent to the term of payment, in one or other of the said banks, sufficient intimation being always previously given, both to the purchaser and to the common agent for the creditors, that such application is made, in order that all parties may have an opportunity to object; and in all cases of judicial sales the lands or other heritable property may be brought to actual sale, so soon as the necessary previous steps are taken, whether the ranking be concluded or not, unless the Court, upon application of any party concerned, shall find sufficient cause to delay the sale.
3. And whereas doubts have arisen upon the construction of an act of the Parliament of Scotland passed in the year 1690, chapter twenty, intituled "Act anent the Sale of Bankrupt's Lands," in so far as it requires that the common debtor be found bankrupt and utterly insolvent: Be it enacted, that a judicial sale at the instance of creditors may in all cases proceed where the interest of the debts and the other annual burdens exceed the yearly income of the property under sale, or where a sequestration shall have taken place, without other proof of bankruptcy or insolvency.
4. When the estate of a debtor is brought into the Court of Session by process of judicial sale and ranking, the decree of sale to be pronounced by the Court
Notices of New Books.
shall be held as a general decree of adjudication in favour of every creditor who shall afterwards be included in the decree of division; and the effect of such general decree shall be the same in all competitions, or questions of ranking and preference, as if it had been pronounced and extracted of the date of the first calling of the process of sale before the Lord Ordinary in the Outer House, and no separate adjudication shall be allowed to proceed during the dependence of a judicial sale, and the Court is hereby authorised to settle, by an act or acts of sederunt, in what manner and at what period or periods the principal sums and bygone interest of the debts shall be accumulated, so as to do equal justice to all concerned provided that it shall be competent to any creditor who is in a situation to adjudge to carry on the action to its conclusion, although deserted or abandoned by the original pursuer.
5. And in order to lessen the number of adjudications for debt, and the expense to all parties, and to facilitate the pari passu preference of creditors in similar circumstances, be it enacted, that the Lord Ordinary officiating in the Court of Session, before whom the first process of adjudication against any estate for payment or security of debt is called, shall ordain intimation thereof to be made in the minute book and on the wall, in order that any other creditors of the common debtor, who, at the next calling of the cause, can show that, although they have not executed their summonses of adjudication, they are in other respects, by the nature of the grounds of debt and steps taken by them, in condition to proceed in adjudging the common debtor's estate, may produce the instructions of their debts, with summonses of adjudication, libelled and signetted, for the purpose of their being conjoined in the decree of adjudication, twenty sederunt days being allowed for such intimation before the cause can be called a second time; and if any of those forms shall happen to be omitted, such adjudication shall be null and void, without prejudice to its being brought forward again in more due form, or still conjoined with any after adjudication; and without prejudice to the validity and order of ranking of posterior adjudications according to the rules of law, when any after process or processes of adjudication are brought into court, the same shall be regulated, as to the time and manner of proceeding in them, by an act or acts of sederunt of the Court of Session, so as to provide, as far as circumstances will admit, for the pari passu preference of such posterior adjudications with one another, and to abridge the number and expense of such proceedings; and in all cases where penalties for nonpayment, over and above performance, are contained in bonds or other obligations for sums of money, and are made the subject of adjudication, or of demand in any other shape, it shall be in the power of the court to modify and restrict such penalties, so as not to exceed the real and necessary expenses incurred in making the debt effectual.
6. And in order to fix more clearly in time coming what diligence is necessary to make an adjudication effectual, be it enacted, that the lodging of a draft charter and note in the office of the presenter of signatures, in terms of the 10 & 11 Vict. c. 51, when the holding is of the Crown, or the executing a charge of horning against superiors, when the holding is of a subject, and recording a copy of such note and an abstract of such draft charter, or such charge, in the register of abbreviates of adjudications, shall be held in all time coming as the proper diligence for the purpose aforesaid,
7. It shall be lawful for any person possessed of lands or other heritable property, and desiring to pledge the same in security of any sums paid, or balances arising or which may arise upon cash accounts or credits, or by way of relief to any persons who may become bound with him for the payment of such sums or balances, although paid or arising posterior to the date of the infeftment, to grant heritable securities accordingly upon his lands or other heritable property, containing procuratory of resignation and precept of sasine, for infefting any bank or bankers or other persons who shall agree to give such cash accounts or credits, or for infefting such persons as shall become cautioners for him, or jointly bound with him in such cash accounts or credits: provided always, that the principal and interest which may become due upon such cash accounts or credits shall be limited to a certain definite sum, to be specified in the security, such definite sum not exceeding the amount of the principal sum, and three years' interest thereon at the rate of £5 per centum: provided also, that it shall be lawful for the person to whom any such cash account or credit is granted to operate upon the same by drawing out and paying in such sums from time to time as the parties shall settle between themselves, and that the sasines or infeftments taken upon such heritable securities shall be equally valid and effectual as if the whole sums advanced upon such cash account or credit had been paid prior to the date of the sasine or infeftment taken thereon, and that any such heritable security shall remain and subsist to the extent of the sum limited, or any lesser sum, until the cash account or credit is finally closed, and the balance paid up and discharged, and the sasine or infeftment renounced.
NOTICES OF NEW BOOKS.
The Law of Mortgage, as applied to the Redemption, Foreclosure, and Sale in Equity of Incumbered Property; with the Law of the Priority of Incumbrances. By WILLIAM RICHARD FISHER, Esq., Barrister-at-Law. London: Butterworths.
THE Law of Mortgages is a subject of such very general importance to all classes of practitioners, that we need not be surprised at seeing another author in the field. Already we have excellent Treatises by Mr. Coote and Mr. Coventry, though not of very recent date, besides the well-known works of Lord St. Leonards, Mr. Dart, and others, who treat of this subject along with the other departments of the law of real property.
In order to show somewhat fully the scope of Mr. Fisher's work, we shall extract from his Table of Contents the subjects he treats of in each chapter, and the judicious arrangement he has adopted.
1st. He states the several kinds of securities. "Of the Nature of the Rights of Redemption and Foreclosure Of the several Kinds of Redeemable
Securities-Legal Securities-Securities requiring Registration Securities npon Ships-Judgments, lis pendens, &c.-Equitable Securities."
2nd. He treats of Redemption, viz. :
"Of the Nature of the Remedy, and the Form of the Bill Multifariousness The Defences-The