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No. 901-VOL. XVIII.

APRIL 15, 1854.

NAMES OF THE CASES REPORTED IN THIS NUMBER.

COURT OF CHANCERY.

Ex parte Neilson, in re Edmond.-(Joint-stock Companies Registration Act, 7 & 8 Vict. c. 110, s. 26 -Allottee after complete Registration-Bankruptcy).......

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In re Laverick's Estate, and in re The Whitby Improvement Act, 7 Will. 4, c. x.-(Will-Construction-Whitby Improvement Act-Costs)........ 304

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WE see with great pleasure, that in a bill which Lord Brougham is bringing forward for amending the practice of conveyancing, his Lordship proposes that the taxing of conveyancing charges, should be upon the quantum meruit rather than the length principle. We are also glad to see it stated by his Lordship that the Taxing Masters now look with approbation on that method of taxing. Beyond all question, more will be done by it towards shortening conveyances, than could be done by much more intricate devices. Lord Campbell suggested, and as we think very wisely, that if there were a high officer vested with sound discretion, who was to determine questions of this nature, it would be an unspeakable advantage. This, translated from the grandiloquent phraseology of Parliamentary style into plain English, means that the Taxing Master who is to tax in conveyancing business, should be a conveyancer of eminence, of great skill and experience; and VOL. XVIII, N

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unquestionably he should be so. If Lord Brougham's bill passes, either a part of it should provide for the appointment of a new Taxing Master for taxing in all cases of conveyancing business, and such Taxing Master should be some conveyancing counsel of great experience, or it should provide for the appointment of such a Taxing Master on the first vacancy. Assuming the office of Taxing Master to remain what it is, and to be always filled by a gentleman who has acquired eminence in the general practice of a solicitor, we quite agree the remarks that fell from both Lord Campbell and the Lord Chancellor, that the difficulty would be very great; that there would be great difficulty in determining the relative amount of the skill and ability in each particular instance; and that it would be a very delicate matter to express any judgment upon such a question. No doubt it would, if a gentleman, whose peculiar field of operations has been the conduct of causes and the transaction of conveyancing business as a solicitor, were to be called upon to estimate the amount of difficulty in business which, as solicitor, he never transacted, but always laid before conveyancing counsel, because it was their special business, and was not his. We have no hesitation in saying, that unless Lord Brougham's measure does bring with it an alteration as to the qualifications required in a conveyancing Taxing Master, it will not work; but if it does bring with it such an alteration, it will work perfectly.

We have so often in this journal urged this improver ment on the notice of the Profession, that we shall not

PAPER

Ir is beyond doubt that the procedure and practice of the Court of Chancery have been very much improved within the last few years; but it is equally beyond doubt that much remains to be done to make it what it ought to be and may be. We speak on this because we have paid great attention to the subject of with some degree of boldness and confidence, not only Chancery reform for a considerable number of years, but because we have long laboured in a humble way, as contributors to the legal literature of the day, to assist in forwarding many of the views which more distinguished men have, after mature consideration, thought fit to be adopted in practice.

The first subject to which we will refer, because, in our opinion, it is, as regards procedure, the most important, and because it is one on which many very able and learned men entertain very strong doubts, is the mode of taking evidence in Chancery. At present without any oral examination; by affidavit combined there are three methods of taking evidence-by affidavit with oral cross-examination and re-examination; and by oral examination entirely.

go in detail again into the reasons in favour of it; but OBSERVATIONS ON THE STATE OF PROCEit may not be altogether useless to repeat, that to the DURE IN THE COURT OF CHANCERY. Profession it is comparatively a matter of indifference. It is to the public that the change is the most important; to the Profession, we say, it is a matter comparatively of indifference. True, the conveyancing draftsman, whether counsel or solicitor, prepares many a draftsay, conditions of sale for which, being difficult to draw, and necessarily, from the nature of the transaction, short, his remuneration is grossly inadequate. But then the next thing that comes before him is probably a common mortgage, or marriage settlement, which, being nearly all common form, gives scarcely any trouble, and produces a remuneration as much too great as that in the former case was too small. Taking, then, the average of drafts, and the same may be said of abstracts, the conveyancer reaps a fair remuneration for his toil; but then the operation on the unhappy public is this that the man who gives his conveyancing solicitor or counsel scarcely any trouble at all, pays for the trouble given by another man who has not paid nearly enough; and that, we apprehend, is a system which, when once the public thoroughly understands, it will with great delight see abolished. The only real difficulty about working the system proposed (assuming the appointment of a first-class conveyancer as Taxing Master, without which, we repeat, it will be a dead letter) arises from the necessity which it will draw with it, as regards the business transacted by counsel, of counsel marking their own fees; because, of course, when a solicitor lays an abstract, or instructions for a draft, before counsel, he relieves himself from the labour of considering the case, and does not attempt to estimate its difficulty. Now, that is of no consequence if he is to pay counsel and charge his client with a fee measured by the number of pages read or written by the counsel; but if he is to pay him a fee measured by the difficulty, he must, of course, ask his counsel what the fee is to be, which, stripping the case of the mysterious and delicate intervention of the suggestion of counsel's clerks, amounts to conveyancing counsel marking their own fees. Now, this practice to some extent already obtains, but is far from general; is not much liked by conveyancing counsel; is affected to be considered as most inconvenient by all counsel not conveyancers; and is absolutely ignored at the height of the judgment-seat: so that there would be some difficulty in getting that part of the measure to work; and without it, of course, the whole thing would become a dead letter.

We apprehend, however, that after a time, and especially if the Taxing Master were really a master of his art, so that a conveyancer might reasonably submit himself to his judgment, conveyancing counsel will find such increased comfort and advantage from their fees being measured by the difficulty of the labour they have gone through, that they will in practice aid the working of Lord Brougham's act, should it pass into law.

The first method is common to the hearing of causes and of interlocutory applications. It may be used in its integrity either at the hearing or trial of a cause, second and third methods can only be used for the or on any interlocutory application in the cause. The hearing of a cause; they cannot be used at all, except by consent, on an interlocutory application. Now, we may observe, in passing, that this difference between the mode of hearing the cause, and hearing interlocutory proceedings in it, is objectionable. Eliciting the whole truth is quite as essential on motions as at the hearing of a cause; and whatever machinery is thought requisite for one, should be equally applicable -we do not say always applied, but equally ap plicable to the other. However, without stopping to discuss that point with any detail, we proceed to the entire mode of taking oral evidence in Chancery. On principal objection, which appears to us to go to the that part of the subject it seems to us that the perpetuation of examiners in Chancery, by the 15 & 16 Vict. c. 86, was a great mistake, and that the sooner the mistake is rectified the better. As a general rule, the for the purpose of recording their evidence, and after principle of examining witnesses before one tribunal wards using it in a written state before another, is not sound, and leads to infinite expense and inconvenience; and wherever special circumstances do not exist to make it either impracticable, or so inconvenient as to be in effect impracticable, witnesses should be in Chancery, the trial, before the judges who try the case. as at common law, examined orally in open court, at To this rule there will of course be exceptions. We speak only of what should be the general rule. mination, properly conducted, is superior to any kind That, for the purpose of eliciting the truth, oral exa of merely written examination, we shall not stop to argue; it has always been admitted to be so by all but Chancery lawyers; and the point was conceded by Chancery lawyers when they introduced it under the 15 & 16 Vict. c. 86. The only question is, how it is to

be used.

Now, the way it is used in Chancery at present is this:-The witnesses are examined by counsel before the examiners in a private office, to which none are admitted but the witnesses and the solicitors and counsel. The examiner is furnished with a copy of the pleadings, which may or may not give him information of the case made on both sides, as now there may or may not be an answer. But assuming that the plead

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ings do inform the examiner of the nature of the case made by each side, his attention is not very vigorously drawn to it, because he is to decide nothing. He is to hear no argument either on the law or on the merits of the case. He is not even to decide what evidence is either material or relevant. So that everything that an act of Parliament could do to make him the listless listener-the examining machine, which the old Chancery examiner was-has been done, and he is armed with as little power as possible to check exuberant and irrelevant examination. The result is, as might have been anticipated, that immense quantities of irrelevant and improper evidence are taken down and recorded, and go to swell the bulk of the briefs on which the cause is ultimately heard. The mere taking of all this evidence would be of no great consequence, beyond the expense incurred in the unnecessary prolongation of the examination, if it were not permanently recorded; but being permanently recorded, it plays the part of the old formal Chancery bills and answers and depositions, and makes heavy briefs, for the writing and the reading of which the suitor has to pay, although fivesixths of the matter written and to be read are generally absolutely useless. That is one serious objection to taking the evidence, as a general practice, before

examiners.

The next objection to it is, that it deprives oral examination of that which all common lawyers agree, and which all ordinary observation shews, is the very essence of its value, viz. the effect on the sense of responsibility of the witness, by his subjection to an examination in public, and the effect on the judge, who is in possession of the case as it proceeds, and who has to decide it, of having the opportunity of observing the personal demeanour of the witness. The remedy seems at first simple enough, viz. to abolish altogether the preliminary examination in the examiner's office, and to have the witnesses in a Chancery cause, when examined orally at all, examined just on the same principle and in the same manner as they are on a trial at Nisi Prius.

It is said, however, that there are great difficulties in the way of adopting that course of procedure.

First, it is said that so much time would be taken up on trials, that they would never come to an end, unless at least half-a-dozen more Vice-Chancellors were

created.

Secondly, it is said that the expense of bringing witnesses up to town, and keeping them in town, for causes originally in the country, and requiring country witnesses, would be frightful.

Thirdly, it is said that Chancery causes would not be tried with that decorum-with that steady and solemn deliberation, with which they are now tried, and without which, it is urged, satisfactory decisions could not be arrived at.

These are, we think, the principal objections; at least, we are not apprised of any other material objections.

Now, in answer to the first, we say this

1. It is not at all clear that a great deal more time would be occupied in trials, taking them in the aggregate, than is now occupied; not that the taking of oral evidence, if no other is taken, would not occupy more time than the reading of selected portions of recorded evidence, but that when evidence is taken at once orally, it very frequently happens that a case breaks down, as it is technically called, by the sudden apparition of evidence damning to the one side or to the other, which evidence might never be elicited at all before an examiner, where the cause is not actually being tried; or to which, if elicited, counsel for the party damaged takes good care not to refer, so that sometimes it never makes its appearance at all, and at any rate frequently does not do so till the case has been half gone through.

2. If evidence in a Chancery cause were taken primarily (as it would probably almost always be if the matter were left to the parties) upon affidavit, and the witnesses only cross-examined and re-examined orally on their affidavits, the oral examination would be confined to the really material points, counsel being previously in possession of the general case on both sides; and the oral examination would not, in general, be lengthy.

3. Those who have had experience in Chancery causes know well that in them, in general, a very large portion of the case depends on both sides on documentary evidence, and that the examination of numerous witnesses is rarely necessary. We except, of course, interlocutory motions, where facts are in controversy, and cases of alleged fraud turning on the acts of the of Chancery proceedings. However, we will assume parties. But these do not constitute the principal part that more time, and considerably more time, would be occupied in court, and that two-perhaps three or four The business would be done in court, instead of out of -additional judges might be required; what then? court. Judges and their staff would have to be provided and paid by the public, instead of examiners and their staff. More time would be consumed in court, by everybody out of court. Stationers would not have but there would be proportionably less time consumed to be paid for copying again and again folios upon folios of irrelevant matter, nor would counsel and solicitors have to be paid for reading it. What would be expended in time and cost in useful labour in court, would be more than saved by excluding masses of utterly useless labour out of court; and the public would still be the gainers, even in point of expense. But even supposing greater expense to be thrown on the public-after all, it is not a question of mere pounds, shillings, and pence: it is a question how justice is most completely to be administered; and if it be proved that the truth would be better elicited in Chancery, as well as at common law, by examining witnesses orally at the trial, we should indeed deserve, keepers," if we hesitated at adopting the better system and in its worst sense, the name of " a nation of shopbecause it would cost a little more. We have departed from the barbarism of giving to our armies the old flint-lock muskets, instead of the modern improved firearms; let us not be less wise in our generation in reference to the arming of our Courts of equity with the species of artillery which they require.

We pass now to the second objection.

That is an objection dependent upon special external circumstances. Ex concessis, it applies only to country causes, and it presents really but little difficulty, notwithstanding its apparent plausibility. If, in any cause, there are witnesses to be brought from the country, the bringing and retaining of whom in town till the trial, would cause great expense, it only comes to this that the parties must, by the force of circumstances, over which no system of procedure can be perfect enough to exercise an absolute control, elect whether they will adopt the more perfect method of taking evidence, with its concomitant evil, expense, or whether they will rather forego it for the sake of economy, and adopt the less perfect method. Either party should in such a case be at liberty to have a special examiner to examine his country witnesses; and the other party should be at liberty either to cross-examine them before the examiner, or, if he prefers it, to bring them to town at his own expense, to cross-examine them at the trial. By such a simple arrangement would that objection be removed. It resolves itself, in effect, into this that the benefit of oral examination in court could not conveniently be adopted for a certain class of cases. Be it so; and let that class of cases be

exceptional, and exempted wholly or partially from its operation.

We come now to the third objection, which is like the second, much more plausible than substantial.

the hearing, but should have a right, if he thinks fit, to commence at once by oral examination of his witnesses in court, subject, of course, to cross-examination and re-examination.

3. That the examiners' offices should be abolished, and that there should be no such thing as preliminary oral examination, except in cases where the witnesses, by reason of illness, great distance, great age, or the like, cannot be brought up for the trial; and that in such cases only special examiners should be appointed to take the evidence, as is now done.

Before quitting the subject of evidence, we may observe, although the subject does not strictly relate to equity proceeding, that it is a great defect in the existing practice under the law of patents, that the Attorney and Solicitor General have no power to administer an oath on hearing an opposition to the grant of a patent, and that consequently such business (which is always of the most litigious character, and mostly involves as great an amount of contradictory evidence as the most intense running-down case) has to be heard on affidavits alone; or, what is still worse, the oral examination of the parties and their witnesses without oath. The law officers, (and the Lord Chancellor on appeals from them), upon oppositions to the grant of patents, ought to have power to administer an oath, so that parties and witnesses might be examined orally in such cases. They really are trials, and very serious trials, of very difficult questions, involving very important rights.

It really proceeds on a false assumption, viz. that causes are heard with any very extraordinary degree of solemnity and deliberation in Chancery, as compared with trials at Nisi Prius. How equity causes were heard tempore Hardwicke, tradition saith not; how they were heard tempore Eldon, we are not old enough to remember-possibly they were then heard with very great solemnity; with a deliberation productive of anything but satisfaction they certainly were heard, if we are to believe the biographers of that great but over-cunctative judge. But at this day, under the system administered for the last fifteen years, the hearing of equity causes has certainly not been marked with any solemnity or deliberation not to be seen in every superior court of justice in cases of like importance. We do not mean to say that a cause turning on the construction of a difficult will, or a case of specific performance involving abstruse questions of title, or a case involving the setting aside important deeds for fraud or undue pressure, &c., are not heard in Chancery with more of solemnity and deliberation than are to be seen at Nisi Prius in a running-down case, or a case of breach of promise of marriage, in bucolic localities, between a disconsolate serving damsel of twentytwo, and a mature but substantial farmer of fifty. But we say that any one who has attended a Nisi Prius trial on serious and important commercial questions, or on any questions, whether turning on commercial or personal rights, as serious as those which form the staple of Chancery causes, will not have found any great difference between the deliberation with which a trial at EQUITY CAUSE LISTS, EASTER TERM, 1854. Nisi Prius is conducted, and that which is to be seen on the hearing of a modern equity cause. In truth, the deliberation-the care-with which a trial of any kind is conducted, depends, not so much on the mode of procedure, as on the character of the cause and of the tribunal. It is not because evidence is taken orally at the trial, that so many Nisi Prius trials are hurried through with apparent haste and want of deliberation, but because in so many Nisi Prius trials the subjectmatter is such as to require very little deliberation. Let the subject be one of grave and difficult character, and the trial at Nisi Prius ceases to be hasty. So, in equity, there is little room to fear that the introduction of oral evidence would have the effect of the causes being heard with less care and deliberation than they now are, while the subjects remain as serious and as difficult as they now are.

We have now stated our reasons for the introduction of a different mode of taking the evidence in equity, and the answers which appear to us to meet the objections usually suggested. It remains only, on this branch of the subject, to say what practical mode of proceeding we should recommend; otherwise we should be obnoxious to the ordinary observation, that it is easier to find a general fault than suggest a specific remedy.

What we recommend, then, is this

1. That parties to a Chancery suit should be at liberty to go into evidence, in the first instance, either on an interlocutory application, or for the hearing of the cause, as they now do on interlocutory applications— that is, upon affidavits, original, in reply, in counter reply, &c.; that every party should be at liberty at the hearing of either an interlocutory application, or at the hearing of the cause, (without any application to the judge being necessary), to cross-examine orally any of his opponent's witnesses, the opponent, of course, having a right orally to examine.

2. That no party should be obliged to commence by affidavit either on an interlocutory application or at

Court Papers.

The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occupied:-4. Abated-Adj. Adjourned-A. T. After Term-Ap. Appeal-C. D. Cause Day-Cl. Claim-C. Costs-D. Demurrer-E. Exceptions-F. D. Further Directions-M. Motion-P. C. Pro Confesso-Pl. Plea-Ptn. Petition-R. Rehearing-S. O. Stand Over-Sh. Short.

Court of Chancery.

Before the LORD CHANCELLor.

v. Attorney-General v. Rees

Before the LORDS Justices.
APPEALS, &c.

Letts v. London Corn Ex-
change Co. (Part heard)
Hope . Threlfall (Part heard)

April 24

Robinson v. Lowater

Vincent v. Godson
Crompton v. Huber April 22
M'Cormick v. Garnett (3 tits.)

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(F D)

Saunders v. Richardson

Gann v. Gregory
Byass v. Gates

Coppard 6. Byass}

Briggs v. Lord Oxford
Briggs v. Lady Oxford
Atchison v. Le Mann
Winterbottom v. Tayloe
Waters v. Leonard.

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