« EelmineJätka »
Proposed Criminal Law Amendments.-Law of Divorce.
of giving the prisoner the benefit of a doubt, may acquit him. In such cases assuredly the prisoner ought not to receive any costs. Any such general rule also would lead to all sorts of defences being fabricated in the hopes of obtaining costs. Neither does the reasons for giving costs to defendants warrant such an extensive rule; for that reason rests solely on the defendant being improperly prosecuted, which can only be the case where he is innocent. No mere failure, therefore, in the prosecution should suffice to entitle the defendant to costs; there should be sufficient grounds to lead to the conclusion that the defendant was really innocent. Consequently the power to grant costs should be confined to those cases where there was something which showed affirmatively that the prisoner was innocent. It seems necessarily to follow that the power must be vested in the discretion of the court, and that that power should only be exercised in cases where the court felt really satisfied of the innocence of the prisoner. It would be well also that such discretion should not be exercised merely on what appeared in evidence in court. Cases not uncommonly occur when on the evidence presented in open court a prisoner's innocence may seem clear -nay sometimes so clear, that an unfortunate prosecutor may receive a severe reprimand,—and yet facts may exist behind the scenes which might change the whole aspect of the case. Subsequent inquiry may, therefore, be advisable in many cases, and the district officer hereafter suggested would be very useful in making any inquiries for the information of the court in such cases.
The select committee on public prosecutors are of opinion:
"That, with proper checks and safeguards, the expense of witnesses called by the prisoner to prove his innocence ought to be allowed; and that this alteration would remove a manifest imperfection in the present system. That where a prisoner shall have heard the charge against him before the justices of the peace, he shall be asked what he has to say to the charge, and whether he has any witnesses to speak to facts, in his defence, and, if so, the justices shall call them for the prisoner, and, should they consider them credible, they shall bind them over to appear at the trial, their evidence being added to the depositions; in which cases their expenses shall be paid similarly to the expenses of the witnesses for the prosecution; the judge or persons presiding at the trial, or the district agent, shall have the like power (2 Rep. p. x)."
It is not clear whether the committee mean the court to have a discretion as to the allowance of the expense of the witnesses for a defendant, where bound over by a magistrate; if they do not, it is obvious that any such plan might lead to great mischief, as the magistrates might be grossly imposed upon and the costs of witnesses, who were shown, at the trial, to be utterly unworthy of belief, would thus be paid by the public.
If the suggestion made in the last section relative to poor prisoners' defences should be adopted, the costs of witnesses for the defendant in any case where a defence was directed, might be left in the discretion of the court, even should the case turn out on the trial to be one in which the court was not satisfied of the innocence of the defendant, as in such a case the witnesses would have been caused to attend not on the procurement of the defendant alone.
Whenever after a conviction it should be clearly shown that a prisoner was innocent, justice seems to require not only that he should receive all the costs which he has incurred in his defence and in procuring his pardon, but also adequate compensation
for the sufferings he has endured whilst undergoiug his sentence. As pardons emanate from the Home Office, no other tribunal could be pointed out better acquainted with the facts of the case, and therefore to that tribunal the power of awarding such a sum as should seem fitting might be well entrusted.
7. Of the taxation of the bills of costs of attornegs of prisoners.
It is clear that if the costs of prisoners should be granted in any case, the bills of costs of their attorneys must be subjected to the taxation of the proper officer of the court which grants such costs, and it is further suggested that in every case the court, on the application of a defendant, or any of his friends who may have employed an attorney to defend him, should be empowered to refer such attorney's bill for taxation either to some officer of the court, or to some attorney, and that authority should be given to the court which ordered the taxation, or to any subsequent sessions of that court or to any of the superior common law courts, to enforce the certificate of the person who taxed the bill, or to punish the attorney for any misconduct certified by such person.
In practice it is conceived that the bills of costs of attorneys for prisoners are rarely, if ever, taxed, and the consequence is that an opportunity is afforded to low and unprincipled attorneys of getting considerable sums from prisoners on pretence of such sums being necessary for their defence, and of converting the principal portion to their own use. It is understood that it has been the practice with some such persons to represent to prisoners that counsel would not undertake a defence unless a certain fee were paid; by which means a large sum has been obtained from the prisoner or his friends, whilst the fee given to the counsel has been very much less than that which was represented as necessary, and the difference has never been accounted for by the attorney. A summary jurisdiction,
vested in the criminal courts, over such practitioners would prove extremely beneficial.
LAW OF DIVORCE.
SPEECHES OF THE LORD CHANCELLOR AND
Having in a recent uumber (ante, p. 335) given the speech of Lord Lyndhurst on the proposed alteration in the law of divorce, we now add the speeches of other law lords:
The Lord Chancellor would advert, in the first instance, to the question on which the committee were not altogether unanimous, viz., the propriety or impropriety of abolishing actions for criminal conversation. He thought that those actions had hitherto been raised mainly, if not entirely, in consequence of the rule laid down by their lordships that without a verdict in such an action a divorce could not be granted. Inasmuch, therefore, as the bill did away with that necessity and enabled a divorce to be obtained upon its own merits, without any such previous actions, he believed the consequence would be, from the good feelings of the community, although not from positive enactment, to make such actions extremely rare. He did not say that the bill would entirely abolish them, and he confessed, differing in that respect from his noble friend who had just addressed their lordships, that he did not think it would be expedient to declare
Law of Divorce.-Points in Equity Practice.
by positive enactment that in no circumstances could an action be brought. For he could conceive cases in which it might be perfectly reasonable that there should be pecuniary compensation, grievous infury might arise to a poor man from the misconduct of a rich one; there might be many cases in which the guilty act of an adulterer might deprive a poor man of a portion of his income and whenever that occurred moral justice would seem to require that pecuniary compensation should be given. A majority of the committee were therefore of opinion that actions for criminal conversation could not be abolished altogether.
With regard to the constitution of the tribunal to be established under the bill, the alteration adopted by the committee was not a very material
As the bill originally stood, it was proposed that the court should consist of the Lord Chancellor the Lord Chief Justice of the Court of Queen's Bench, and one of the ecclesiastical judges-the Chief Justice, when he could not attend, to delegate another judge; but the committee suggested that, instead of his delegation, all the three Chief Justices, should have a seat, any one of them being suffieient.
As to the rights of a woman, divorced à mensâ et thoro, with regard to property, he had from the first stated that he had no objection to such a woman being regarded as a feme sole, but he did not think it was a matter which should be introduced into the present bill. He was still of the same opinion, but nevertheless would not object to the recommendation made by the committee.
Then, with reference to the relief which ought to be given to the wife, the bill originally provided that she should be entitled to a divorce only in case of incest. The committee thought, however, that the right should be, extended to such cases as bigamy, or adultery, with cruelty and desertion. To these alterations he was prepared to accede, but he thought it would not be safe or prudent to go further. Any one who proposed that the relief given to husband and wife should be reciprocal could not expect to have the concurrence of public opinion, for, unquestionably, the public entertained the belief that there was a criminality on the part of the wife in cases of adultery which did not attach to the husband. It was not unreasonable to expect that criminality on the part of the husband might be pardoned by the wife, but it was not at all likely that pardon would be extended from the husband to the wife. The cases could not be regarded as equal, and accordingly he was not disposed to go further in the direction of granting relief to the woman than had been proposed by the committee.
Lord Campbell earnestly implored their lordships to take the bill as it now stood. It was an immense improvement on the law of marriage and divorce in this country, and he thought they could not safely attempt more at the present moment. It was a most anomalous state of things that a marriage could not be dissolved in any particular case in this country without an act of Parliament. It would hardly be credited in future times that such a disgraceful system could have existed, and that before an act of Parliament could be obtained there must first have been an action brought for criminal conversation. He cautioned their lordships, however, against giving too great facilities for divorce, Such a course would be attended with the most unhappy consequences. It was only in cases of adultery that divorce could be safely given, and this was the
line pointed out by the great founder of our religion.
He approved of the alterations introduced into the bill by the committee. It was just that the earnings of a wife deserted by her husband should be preserved sacred for her own use; that she should in such cases be treated as a feme sole, and have a right to institute actions even against her husband.
In abolishing the necessity of actions for criminal conversation more difficulty arose. Of these actions he had always been ashamed, and in his tribunal he had often expressed his abhorrence of them, In conversation with foreign jurists he had been reproached with the existence of such actions, and had nothing to say in reply, for, though he was able to deny that men sold their wives with ropes about their necks, he could not deny that actions for crim. con. were permitted, nay, made necessary in certain cases, by the law. By rendering that action no longer necessary, he thought a great deal was done, and he hoped the effect would be to bring it altogether into desuetude. The difficulty the committee felt was that they could not altogether abolish the action without substituting some mode of criminal proceeding. The question viewed in this light was beset with difficulties, and therefore the committee, not wishing to abrogate the civil prosecution without substituting a criminal procedure, resolved simply to render the action no longer necessary for the purpose of procuring a divorce.
Then the question arose, should the same right of divorce be given to the wife as to the husband? No doubt the crime in both cases was essentially the same, but the consequences were not the same. When adultery was committed by the woman, all the purposes of the marriage were for ever annulled, and there could be no condonation on the part of the husband. He would not, therefore, go the length of giving the woman the same rights in this case as the husband. He would give her the right to a divorce in the case of incestuous adultery, as at present, and to that he was willing to add cruelty, bigamy, and desertion for a certain number of years: but further than that he was not prepared at present to go.
IT appeared that Grace Thompson, acting without authority, sold a trust estate to George Liddell. In a suit by one of the cestuis que trustent against the representatives of Grace Thompson to recover the purchase money, George Liddell, who was not a party, was examined as a witness. Others of the cestuis que trustent instituted the present suit against the representatives of George Liddell to recover the estate itself, and an order of course was obtained therein on petition to read and make use, at the hearing, of the depositions taken in the former suit, saving all just executions.
The Master of the Rolls discharged the order with costs.
Hope v. Liddell, 21 Beav. 180.
Law of Attorneys and Solicitors.-Law of Costs.-Grievances of Copyholders.
his possession. Part of these consisted of the court rolls of the manor.
Upon an application for the rolls to be examined instead of being deposited, the Master of the Rolls said: "I think that if this matter were before me in the first instance, I should not have compelled the deposit in court of the Court Rolls, though I should have allowed them to be inspected, at all reasonable times, at the office of the solicitor, or at some other convenient place; I certainly should not take away the court rolls from the acting steward, for though they may not be absolutely required at the present time, they may be required at any moment. Here is a person who is said not to be the steward, but to be acting as steward; I caunot determine his right to the office upon an interlocutory proceeding. The court considers that the person depositing documents has the right to the possession of them, and the custody of the court is that of the person making the deposit. In the case of merchants' books it is a question of convenience and inconvenience; the same principle is applicable to court rolls, and I must direct the production to be at the steward's in London."
Carew v. Davis, 21 Beav. 213.
LAW OF ATTORNEYS AND SOLICITORS.
RE-ADMISSION OF, ALTHOUGH COPY AFFIDAVIT LEFT AT COMMON PLEAS C. J., AND NOT AT THE Q. B.
It appeared that in January, 1852, Mr. Thomas Makinson was struck off the rolls of the courts of common law and of Chancery at his own request, in order to be called to the bar, and that after having entered himself of Lincoln's-inn, and kept his terms for some time, he abandoned his design of going to the bar, and was desirous of renewing his practice as an attorney. He accordingly obtained a rule of the court for his re-admission, but upon its appearing that the copy affidavit required by the 7th rule of Hilary Term, 1853, to be left at the chambers of the Lord Chief Justice of the Court of Queen's Bench had been by mistake filed at the chambers of the Lord Chief Justice of this court, the officer declined to draw up the rule.
An application was afterwards made to Martin, B., at chambers upon an affidavit setting forth these facts, and stating that "the object of the rule has been attained, Mr. Maugham, the Secretary of the Law Institution, having informed the deponent that the said copy affidavit was duly received by him, and that it was referred to the council, who had no cause to shew." An order was thereupon made that "the clerk of the rules of the Court of Common Pleas do draw up a rule to re-admit Thomas Makinson an attorney, notwithstanding the irregularity in leaving a copy affidavit at the chambers of the Chief Justice of the Common Pleas instead of the chambers of the Chief Justice of the Queen's Bench." Rule accordingly.
Exparte Makinson, 18 Com. B. 661.
the parties for the opinion of the court under the 13 & 14 Vic. c. 35, upon a question of construction arising out of a will. It appeared that the testator's estate had been fully administered, with the exception of a sum of about £100. It was submitted that all the costs ought to come out of the fund in question. On the other hand, the Solicitor-General insisted that the rule was, that although whatever remained unadministered might be applied in payment of the costs, because the expense of constructing a testator's will was part of the administration, yet where there was no unadministered estate, a fund could not be recalled for the purpose of paying costs.
The Lord Chancellor admitted the general rule to be as stated by the Solicitor-General, and, observing that the case was clearly one where, for the sake of all parties, a difficulty had to be removed, directed that out of the residue the trustees should have their full costs first, and then that anything which remained should go, not in the first instance to the appellants, but rateably, as far as it would extend, to satisfy the costs of both appellants and respondents. Hinale v. Taylor, 5 De G. M'N. and G. 577. GRIEVANCES OF COPYHOLDERS.
SEVERAL of our correspondents have often and ably exposed the grievances under which copyholders labour; and though the legislature has afforded some relief, a large amount of evil remains. We must, therefore, continue to reserve a corner of this Journal to record the complaints which still continue in reference to this remnant of the feudal system. We extract the following from the "Household Words" of 26th July.
"A few years ago, four acts were passed, each more mysterious than the other, for the enfranchisement of copyholds. These-like many other products of the wisdom of Parliament-have been so hedged about with difficulties and are so unintelligible, that no good can come of them. We are still made to bear with some of the quaint old absurdities of medieval times and to hold our lands by copy of court-roll; rendering homage to the lord by service of render, user and prender; paying a fine and a heriot on the death of the lord of the manor, and the like on every alienation; after the manner of our ancestors centuries ago. In spite of railways, telegraphs, printing-presses, and of this very periodical itself, we still cling in a few districts to the quaint fashions of the middle ages. We have so far improved certainly that no agricultural Damon of the present day can be robbed of his Phyllis by an insatiate lord; nor can the whole of the tenants be termed 'villeins in gross,' and be sold bodily; but he may be robbed legally nevertheless.
Take heriots as an example. A heriot is the best horned beast; and the lord is entitled-in the manors of which I speak-to one heriot for every tenement occupied by the tenant either upon every conveyance of the property (termed an alienation), upon the death of the tenant, or upon the death of the lord. I could quote an instance of recent occurrence, where, upon the death of a tenant who was in possession of fourteen tenements, the lord seised fourteen of the successor's best milch cows. Nor did the matter end here. On the occurrence of any of the events above mentioned, the lord receives
Notes of the Week.-Analytical Digest of Cases: Appeals in Chancery.
eight times the ancient rent; and, as this rent amounts in most instances to three or four pounds, it was found that the heir to the unfortunate owner of the fourteen tenements, would be required to pay some four hundred and fifty pounds for rent; and this after the disappearance of his milch cows.
"Then there is attending the Lord's Court, and
doing homage-not exactly openly and humbly kneeling, being ungirt, uncovered, and holding up the hands both together between those of the lord, &c.'-but by wasting a long day at a dirty country inn. There are, moreover the customs, established by our ancestors and still daily practised, of which I will mention only service days. Besides money payments, the tenant is obliged to give up mow-days, due-days, plough-days, and caich-days; in virtue of which he his required to mow the lord's land, reap it in time of harvest, and carry the corn to the nearest mill to grind, so many times a year.
"I make no mention of the inconvenience to land
owners who have a small plot of copyhold property (as is often the case) intermixed with their freehold, and which necessarily increases the expense of transfer; nor do I adduce one half of the evils attendant upon copyhold tenure. I would merely assume in conclusion that if these feudal customs
were highly politic, and very necessary (as they may have been) in the stormy days of our ancestors when lord and vassal were glad to band together for mutual support, that now they can safely be dispensed with; for, it is difficult to imagine Smith, the lord of the manor of Clodhopples-who reads the Mark Lane Express, makes turnip lanterns for the baby, and behaves in other respects as a peaceable agriculturist-interrupted in these pursuits by the appearance of Jones, the neighbouring lord of the manor of Clodipole, at the head of his vassals, buff-jerkins, hauberks, 'et tout complet,' the said Jones bent upon a raid on the quiet Smith's cattle, and the forcible abduction of his cook.
"Do not let us boast of our high state of civilization, until the best friends of the British Constitution have successfully abolished suit and service holdings, with many more of its existing absurdities."
NOTES OF THE WEEK.
The Queen has been pleased to appoint Alexander Heslop, Esq., Barrister at Law, to be a member of the Privy Council of the Island of Jamaica.
Lewis Morris Wilkins, Esq., to be a Puisne Judge Her Majesty has also been pleased to appoint
of the supreme court, aud Adams G. Archibald, Esq., to be Solicitor-General for the province of Nova Scotia.
Her Majesty has been further pleased to appoint James John Hickson, Esq., to be Crown Solicitor for the Island of Hong Kong; William Gillespie Dickson, Esq., to be Procureur and Advocate General for the Island of Mauritius; and William Snagg, Esq., to be Chief Justice of the Islands of Antigua and Montserrat.
Mr. Wm. Johnson, Solicitor, of Marple, has been appointed Coroner of the Stocleport and Ryde
divisions of Cheshire.
REVISION OF VOTERS.
The revision of the lists of voters for the City of Westminster will take place before J. F. Macqueen, Esq., at the Lords Justices Court, Westminster Hall, commencing Thursday the 9th day of October, at 11 o'clock.
IRISH LUNACY COMMISSION.
The Queen has been pleased to direct Letters Patent to be passed under the great seal, appointing Sir Thomas Nicholas Redington, K. C. B.; Robert Andrews, Esq., one of her Majesty's Counsel; Robert Wilfred Skeffington Lutwidge, Esq., Barrister at Law; James Wilkes, Esq., and Dominick John Corrigon, Esq., M. D., to be her Majesty's Commissioners, for the purpose of enquiring into the state of the Lunatic Asylums and other institutions for the custody and treatment of the insane now existing in Ireland, and also into the present state of the law, respecting lunatics and Lunatic Asylums in that part of the said United Kingdom. From the London Gazette of 30th September.
ANALYTICAL DIGEST OF CASES.
SELECTED AND CLASSIFIED.
Appeals in Chancery. (Concluded from page 376).
PARENT AND CHILD.
Possession by father as next friend-Adverse possession.-Length of time.-A husband survived his wife, who was one of several equitable tenants in common. He was advised by counsel that he had no title as tenant by the curtesy, his wife never having been in possession, and that if he intended to set up such a title he ought not to sue with his infant daughter in a partition suit, which was then in contemplation. The suit was nevertheless instituted by him as the next friend of the daughter, and in 1830 a decree was obtained. A partition was made under the decree, and the legal estate in the daughter's share conveyed to the use of the father during the infancy of the daughter, in trust for her maintenance, and afterwards to her own use in fee.
The daughter attained twenty-one in 1843, and married in 1847. In 1852 the father filed a bill to be relieved from the trusts, on the ground of mistake, and to have his title as tenant by the curtesy established: Held, dismissing with costs an appeal from Vice-Chancellor Stuart (reported 1 Smale and G. 590).
1. That length of time and acquiescence, and the marriage of the daughter, although without the father's consent, before the father disputed the title, constituted a sufficient answer to the suit.
2. That the fact of the marriage having taken place on the faith of the daughter's interest being free from any estate by the curtesy, was sufficiently put in issue by statements in the answer to the effect that up to the marriage the father always told the daughter that the moneys which he paid her were the balance of the rents after deducting the expenses of her maintenance, and that the land was her
Analytical Digest of Cases: Appeals in Chancery.
property, and never made any claim of right to them on his part.-Stone v. Godfrey, 5 De G. M'N. and G. 76.
Boad of indemnity in respect of partnership-Discharge.-Two bankers carried on business under articles of partnership, providing that if at the end of five years, for which the partnership was to continue, either partner should wish to carry on the business, and should not take the share of the other at a valuation, the assets should be realized, the debts paid and the surplus divided. Simultaneously with the execution of the articles a surety for one of the partners entered into a bond to indemnify the other against all loss in respect of the partnership. The business of the bank was continued by the firm for more than a year after the expiration of the five years. Held, on appeal from Vice-Chancellor Kindersley, reported 2 Drury, 102,
1. That by this continuation the surety was discharged;
2. That whether that circumstance would afford a defence to an action on the bond or not, a court of equity would restrain the obligee from proceeding in such an action.-Small v. Currie, 5 De G. M'N. and G. 141.
See Vendor and purchaser, 5.
Dispensing with service on defendant of copy decree. -Motion to dispense with service on a defendant of a copy of a decree on a bill taken pro confesso before the lapse of three years refused.-James v. Rice, 5 De G. M'N. and G. 461.
Case cited in the judgment: Vaughan v. Rogers, 11
Deed of settlement not according with subscription contract-Injunction,-The subscription contract of a projected banking company, after reciting that the capital was agreed to consist of £1,000,000, with
power to increase it to £3,000,000, and that application had been made to the crown for a charter, nominated certain persons directors until the charter should be obtained, with power for them to arrange the terms of the charter in such manner as they should think necessary, in compliance with the requisition of the Government, and to narrow or extend the objects of the company as might be necessary. When the charter should have been sealed, the directors. were empowered to prepare a deed of settlement, and to call for a first instalment from the subscribers, and to declare a forfeiture of the shares of any subscribers who did not execute such deed of settlement. A charter was obtained incorporating the company, with a capital of £644,000, and power to increase it to £1,000,000, with the consent of the Lords of the Treasury. A call was made, and a deed of settlement prepared, reciting the charter, the call, and its payment by the parties to the deed of settlement: Held, varying the decision of the Master of the Rolls, 19 Beav. 278
1. That the power of the directors was not terminated on the grant of the charter.
2. That the charter was not inconsistent with the subscription contract.
3. That the call was properly made.
4. That the deed of settlement was binding on the subscribers to the subscription contract; but
5. That as the deed of settlement made the payment of the call a requisite preliminary, and the subscription contract did not make non-payment of the call a ground for forfeiture, the directors could not declare a forfeiture for non-execution of the deed of settlement. Norman v. Mitchell, 5 De G.. M'N, and