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Saturday, April 8, 1854.
APRIL 15, 1854.
NAMES OF THE CASES REPORTED IN THIS NUMBER.
VICE-CHANCELLOR Wood's COURT.
Rowley o. Rowley.-(Appointment, Exercise of Power panies Registration Act, 7 & 8 Vict. c. 110, s. 26
of Corrupt Bargain)
306 - Allotlee after complete Registration Bank
COURT OF Queen's Bench. ruptcy)..
297 Gott o. Gandy.-(Landlord and Tenant-Obligation
310 COURT OF APPEAL IN CHANCERY.
Reg. o. The Lord of the Manor of Wanstead.—(Manor In re Wharton.-(Lunatic-9 Geo. 4, c. 78, s. 2–
- Devise to joint Tenants-Mandamus to admitSurplus Proceeds of Sale effected under a Luna.
311 tie's Estate-Character of, as between Real and Reg. v. Bennett.-(Paupers having no SettlementPersonal Representatives)
299 Irremoveability- Chargeability to Union Fund The Attorney-General o. The Mayor, &c. of Wigan.
9 & 10 Vict. c. 66, s. 1-11 & 12 Vict. c. 110, (Municipal Corporations Act, 5 & 6 Will. 4, c. 76
8. 3— Poor-law Auditor)
311 - Application of surplus Borough Fund under
COURT OF COMMON PLEAS. Interlocutory Injunction)
Mahony v. Kekulé. - (Principal and Agent - Non-
liability of Agent of Foreign Principal on a written
313 Este o. Smyth.-(Marriage Contract- French FormDomiciled English Subjects-Wife's separate Pro.
COURT OF EXCHEQUER. perty-Disposal by Will— Conflict of Laws) 300 The Bishop of London v. M.Niel.-(15 & 16 Vict.
c. 76-Payment of Money into Court-Pleading VICE-CHANCELLOR STUART'S Court.
framed to embarrass)
314 In re Laverick's Estate, and in re The Whitby Im
CROWN CASES RESERVED. provement Act, 7 Will. 4, c. x.- -(Will-Construc- Reg. o. The Inhabitants of Hornsea.-(Highway, Retion-Whitby Improvement Act-Costs)........ 304 pair of—Encroachment of Sea)...
unquestionably he should be so. If Lord Brougham's The Scale of Charges for Advertisements will in future be bill passes, either a part of it should provide for the a follows :
£ 8. d. appointment of a new Taxing Master for taxing in all For 2 lines or under
0 2 0
cases of conveyancing business, and such Taxing Master 3
0 6 4
0 3 0
should be some conveyancing counsel of great expe5
0 3 6 rience, or it should provide for the appointment of such 6
0 4 0 a Taxing Master on the first vacancy. Assuming the And so on, at the rate of 6d. per line.
office of Taxing Master to remain what it is, and to be A discount, proportioned to the number of repetitions, always filled by a gentleman who has acquired eminence will be allowed upon all Advertisements ordered for three or Prore insertions.
in the general practice of a solicitor, we quite agree with
the remarks that fell from both Lord Campbell and LONDON, APRIL 15, 1854.
the Lord Chancellor, that the difficulty would be very
great; that there would be great difficulty in deterWe see with great pleasure, that in a bill which mining the relative amount of the skill and ability in Lord Brougham is bringing forward for amending the each particular instance; and that it would be a very practice of conveyancing, his Lordship proposes that delicate matter to express any judgment upon such a the taxing of conveyancing charges, should be upon the question. No doubt it would, if a gentleman, whose quantum meruit rather than the length principle. We peculiar field of operations has been the conduct of are also glad to see it stated by his Lordship that the causes and the transaction of conveyancing business Taxing Masters now look with approbation on that as a solicitor, were to be called upon to estimate the method of taxing. Beyond all question, more will be amount of difficulty in business which, as solicitor, he done by it towards shortening conveyances, than could never transacted, but always laid before conveyancing be done by much more intricate devices. Lord Camp- counsel, because it was their special business, and was bell suggested, and as we think very wisely, that if not his. We have no hesitation in saying, that unless there were a high officer vested with sound discretion, Lord Brougham's measure does bring with it an altewho was to determine questions of this nature, it would ration as to the qualifications required in a conveybe an unspeakable advantage. This, translated from ancing Taxing Master, it will not work ;-but if it the grandiloquent phraseology of Parliamentary style does bring with it such an alteration, it will work into plain English, means that the Taxing Master who perfectly.
more is to tax in conveyancing business, should be a convey. We have so often in this journal urged this inaprover ancer of eminence, of great skill and experience; and ment on the notice of the Profession, that we shall not Vol. XVIII,
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;
It is beyond doubt that the procedure and practice to the Profession, we say, it is a matter comparatively of the Court of Chancery have been very much imof indifference. True, the conveyancing draftsman, proved within the last few years; but it is equally whether counsel or solicitor, prepares many a draft- beyond doubt that much remains to be done to make say, conditions of sale--for which, being difficult to it what it ought to be and may be. We speak on this draw, and necessarily, from the nature of the transac- because we have paid great attention to the subject of
with some degree of boldness and confidence, not only tion, short, his remuneration is grossly inadequate. Chancery reform for a considerable number of years, But then the next thing that comes before him is pro- but because we have long laboured in a humble way, bably a common mortgage, or marriage settlement, as contributors to the legal literature of the day, to which, being nearly all common form, gives scarcely any assist in forwarding many of the views which more trouble, and produces a remuneration as much too great distinguished men have, after mature consideration,
thought fit to be adopted in practice. as that in the former case was too small. Taking, then,
The first subject to which we will refer, because, in the average of drafts, and the same may be said of ab- our opinion, it is, as regards procedure, the most imstracts, the conveyancer reaps a fair remuneration for portant, and because it is one on which many very able his toil; but then the operation on the unhappy public and learned men entertain very strong doubts, is the is this that the man who gives his conveyancing so
mode of taking evidence in Chancery. At present licitor or counsel scarcely any trouble at all, pays for there are three methods of taking evidence-by affidavit the trouble given by another man who has not paid with oral cross-examination and re-examination; and
without any oral examination; by affidavit combined nearly enough; and that, we apprehend, is a system by oral examination entirely. which, when once the public thoroughly understands, The first method is common to the hearing of causes it will with great delight see abolished. The only real and of interlocutory applications. It may be used in difficulty about working the system proposed (assuming its integrity either at the hearing or trial of a cause, the appointment of a first-class conveyancer as Taxing second and third methods can only be used for the
or on any interlocutory application in the cause. The Master, without which, we repeat, it will be a dead hearing of a cause; they cannot be used at all, except letter) arises from the necessity which it will draw by consent, on an interlocutory application. Now, we with it, as regards the business transacted by counsel, may observe, in passing, that this difference between of counsel marking their own fees ; because,
the mode of hearing the cause, and hearing interlocuwhen a solicitor lays an abstract, or instructions for a whole truth is quite as essential on motions as at
tory proceedings in it, is objectionable. Eliciting the draft, before counsel, he relieves himself from the labour the hearing of a cause; and whatever machinery is of considering the case, and does not attempt to esti- thought requisite for one, should be equally applicable mate its difficulty. Now, that is of no consequence if -we do not say always applied, but equally aphe is to pay counsel and charge his client with a fee plicable to the other. However, without stopping to measured by the number of pages read or written by discuss that point with any detail
, we proceed to the the counsel; but if he is to pay him a fee measured by entire mode of taking oral evidence in Chancery. On
principal objection, which appears to us to go to the the difficulty, he must, of course, ask his counsel what that part of the subject it seems to us that the perpe. the fee is to be, which, stripping the case of the mys- tuation of examiners in Chancery, by the 15 & 16 terious and delicate intervention of the suggestion Vict. c. 86, was a great mistake, and that the sooner the of counsel's clerks, amounts to conveyancing counsel mistake is rectified the better. As a general rule, the marking their own fees. Now, this practice to some for the purpose of recording their evidence, and after
principle of examining witnesses before one tribunal extent already obtains, but is far from general; is not wards using it in a written state before another, is not much liked by conveyancing counsel ; is affected to be sound, and leads to infinite expense and inconvenience; considered as most inconvenient by all counsel not con- and wherever special circumstances do not exist to make veyancers; and is absolutely ignored at the height of it either impracticable, or so inconvenient as to be in the judgment-seat : so that there would be some diffi- effect impracticable, witnesses should be in Chancery, culty in getting that part of the measure to work; and the trial, before the judges who try the case.
as at common law, examined orally in open court, at
To this without it, of course, the whole thing would become a rule there will of course be exceptions. We speak dead letter.
only of what should be the general rule. We apprehend, however, that after a time, and espe- mination, properly conducted, is superior to any kind
That, for the purpose of eliciting the truth, oral exa. cially if the Taxing Master were really a master of his of merely written examination, we shall not stop to art, so that a conveyancer might reasonably submit argue; it has always been admitted to be so by all but himself to his judgment, conveyancing counsel will Chancery lawyers; and the point was conceded by find such increased comfort and advantage from their Chancery lawyers when they introduced it under the fees being measured by the difficulty of the labour they 15 & 16 Vict. c. 86. The only question is, how it is ta
be used. have gone through, that they will in practice aid the
Now, the way it is used in Chancery at present i working of Lord Brougham's act, should it pass into this:- The witnesses are examined by counsel before law.
the examiners in a private office, to which none ary 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 a may not be an answer. But assuming that the plead:
ings do inform the examiner of the nature of the case 2. If evidence in a Chancery cause were taken primade by each side, his attention is not very vigorously marily (as it would probably almost always be if the drawn to it, because he is to decide nothing. He is to matter were left to the parties) upon affidavit, and the hear no argument either on the law or on the merits of witnesses only cross-examined and re-examined orally the case. He is not even to decide what evidence is on their affidavits, the oral examination would be either material or relevant. So that everything that confined to the really material points, counsel being an act of Parliament could do to make him the listless previously in possession of the general case on both listener-the examining machine, which the old Chan- sides; and the oral examination would not, in general, cery examiner was has been done, and he is armed be lengthy. with as little power as possible to check exuberant and
3. Those who have had experience in Chancery irrelevant examination. The result is, as might have been anticipated, that immense quantities of irrelevant causes
know well that in them, in general, a very large and improper evidence are taken down and recorded, portion of the case depends on both sides on documenand go to swell the bulk of the briefs on which the tary evidence, and that the examination of numerous
We except, of course, cause is ultimately heard. The mere taking of all this interlocutory motions, where facts are in controversy, evidence would be of no great consequence, beyond the and cases of alleged fraud turning on the acts of the expense incurred in the unnecessary prolongation of parties. But these do not constitute the principal part the examination, if it were not permanently recorded; of Chancery proceedings. However, we will assume but being permanently recorded, it plays the part of that more time, and considerably more time, would be the old formal Chancery bills and answers and deposi- occupied in court, and that two--perhaps three or four tions, and makes heavy briefs, for the writing and the reading of which the suitor has to pay, although five- The business would be done in court, instead of out of
- additional judges might be required; what then? sixths of the matter written and to be read are gene- court. Judges and their staff would have to be prorally absolutely useless. That is one serious objection vided and paid by the public, instead of examiners and to taking the evidence, as a general practice, before their staff. More time would be consumed in court, examiners. The next objection to it is, that it deprives oral by every body out of court. Stationers would not have
but there would be proportionably less time consumed examination of that which all common lawyers agree, to be paid for copying again and again folios upon and which all ordinary observation shews, is the very folios of irrelevant matter, nor would counsel and soliessence of its value, viz. the effect on the sense of respon- citors have to be paid for reading it. What would be sibility of the witness, by his subjection to an examina- expended in time and cost in useful labour in court, tion in public, and the effect on the judge, who is in pos- would be more than saved by excluding masses of session of the case as it proceeds, and who has to decide utterly useless labour out of court; and the public it, of having the opportunity of observing the personal would still be the gainers, even in point of expense. demeanour of the witness. The remedy seems at first But even supposing greater expense to be thrown on simple enough, viz. to abolish altogether the preliminary the public - after all
, it is not a question of mere examination in the examiner's office, and to have the pounds, shillings, and pence: it is a question how juswitnesses in a Chancery cause, when examined orally tice is most completely to be administered; and if it at all, examined just on the same principle and in the be proved that the truth would be better elicited in same manner as they are on a trial at Nisi Prius. It is said, however, that there are great difficulties witnesses orally at the trial, we should indeed deserve,
Chancery, as well as at common law, by examining in the way of adopting that course of procedure.
and in its worst sense, the name of “ a nation of shopFirst, it is said that so much time would be taken keepers,” if we hesitated at adopting the better system up on trials, that they would never come to an end, because it would cost a little more. We have departed unless at least half-a-dozen more Vice-Chancellors were from the barbarism of giving to our armies the old Created.
flint-lock muskets, instead of the modern improved fireSecondly, it is said that the expense of bringing arms; let us not be less wise in our generation in refewitnesses up to town, and keeping them in town, for rence to the arming of our Courts of equity with the causes originally in the country, and requiring country species of artillery which they require. witnesses, would be frightful.
Thirdly, it is said that Chancery causes would not We pass now to the second objection. be tried with that decorum — with that steady and That is an objection dependent upon special exsolemn deliberation, with which they are now tried, ternal circumstances. Ex concessis, it applies only to and without which, it is urged, satisfactory decisions country causes, and it presents really but little difficould not be arrived at.
culty, notwithstanding its apparent plausibility. If, These are, we think, the principal objections; at in any cause, there are witnesses to be brought from least, we are not apprised of any other material ob- the country, the bringing and retaining of whom in jections.
town till the trial, would cause great expense, it only Now, in answer to the first, we say this,
comes to this—that the parties must, by the force of 1. It is not at all clear that a great deal more time circumstances, over which no system of procedure can would be occupied in trials, taking them in the aggre- be perfect enough to exercise an absolute control, elect gate, than is now occupied; not that the taking of oral whether they will adopt the more perfect method of evidence, if no other is taken, would not occupy more taking evidence, with its concomitant evil, expense, or time than the reading of selected portions of recorded whether they will rather forego it for the sake of ecoeridence, but that when evidence is taken at once nomy, and adopt the less perfect method. Either party orally, it very frequently happens that a case breaks should in such a case be at liberty to have a special down, as it is technically called, by the sudden appari- examiner to examine his country witnesses; and the tion of evidence damning to the one side or to the other party should be at liberty either to cross-examine other, which evidence might never be elicited at all them before the examiner, or, if he prefers it, to bring before an examiner, where the cause is not actually them to town at his own expense, to cross-examine being tried; or to which, if elicited, counsel for the them at the trial. By such a simple arrangement party damaged takes good care not to refer, so that would that objection be removed. It resolves itself, in sometimes it never makes its appearance at all, and at effect, into this—that the benefit of oral examination in any rate frequently does not do so till the case has court could not conveniently be adopted for a certain been half gone through.
class of cases. Be it so; and let that class of cases be
exceptional, and exempted wholly or partially from its the hearing, but should have a right, if he thinks fit, to operation.
commence at once by oral examination of his witnesses We come now to the third objection, which is like in court, subject, of course, to cross-examination and the second, much more plausible than substantial. re-examination.
It really proceeds on a false assumption, viz. that 3. That the examiners' offices should be abolished, causes are heard with any very extraordinary degree and that there should be no such thing as preliminary of solemnity and deliberation in Chancery, as compared oral examination, except in cases where the witnesses, with trials at Nisi Prius. How equity causes were heard by reason of illness, great distance, great age, or the tempore Hardwicke, tradition saith not; how they were like, cannot be brought up for the trial; and that in heard tempore Eldon, we are not old enough to remem- such cases only special examiners should be appointed ber-possibly they were then heard with very great to take the evidence, as is now done, solemnity; with a deliberation productive of anything Before quitting the subject of evidence, we may ob. but satisfaction they certainly were heard, if we are to serve, although the subject does not strictly relate to believe the biographers of that great but over-cuncta- equity proceeding, that it is a great defect in the tive judge. But at this day, under the system ad- existing practice under the law of patents, that the ministered for the last fifteen years, the hearing of Attorney and Solicitor General have no power to adequity causes has certainly not been marked with any minister an oath on hearing an opposition to the grant solemnity or deliberation not to be seen in every supe of a patent, and that consequently such business (which rior court of justice in cases of like importance. We is always of the most litigious character, and mostly do not mean to say that a cause turning on the con involves as great an amount of contradictory evidence struction of a difficult will, or a case of specific per as the most intense running-down case) has to be heard formance involving abstruse questions of title, or a on affidavits alone; or, what is still worse, the oral case involving the setting aside important deeds for examination of the parties and their witnesses without fraud or undue pressure, &c., are not heard in Chan- oath. The law officers, (and the Lord Chancellor on cery with more of solemnity and deliberation than are appeals from them), upon oppositions to the grant of to be seen at Nisi Prius in a running-down case, or a patents, ought to have power to administer an oath, case of breach of promise of marriage, in bucolic locali. so that parties and witnesses might be examined orally ties, between a disconsolate serving damsel of twenty- | in such cases. They really are trials, and very serious two, and a mature but substantial farmer of fifty. But trials, of very difficult questions, involving very imwe say that any one who has attended a Nisi Prius trial portant rights. 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
Court Papers. of Chancery causes, will not have found any great difference between the deliberation with which a trial at Nisi Prius is conducted, and that which is to be seen on
EQUITY CAUSE LISTS, EASTER TERM, 1854. the hearing of a modern equity cause. In truth, the ** The following abbreviations have been adopted to deliberation—the care—with which a trial of any kind abridge the space the Cause Papers would otherwise have occuis conducted, depends, not so much on the mode of pied:-A. Abated-Adj. Adjourned-A. T. After Term-Ap. procedure, as on the character of the cause and of the Appeal-C. D. Cause Day-Cl. Claim-C. Costs—D. Detribunal. It is not because evidence is taken orally at murrer-E. Exceptions-F. D. Further Directions-M. Mothe trial, that so many Nisi Prius trials are hurried tion-P. C. Pro Confesso-Pl. Plea-Ptn. Petition-R, Rethrough with apparent haste and want of deliberation. I hearing-S. 0. Stand Over-Sh. Short. but because in so many Nisi Prius trials the subjects
Court of Chancery. matter is such as to require very little deliberation, Let the subject be one of grave and difficult character,
Before the LORD CHANCELLOR. and the trial at Nisi Prius ceases to be hasty. So, in
Attorney-General v. Chambers (FD) equity, there is little room to fear that the introduc
Attorney-General v. Rees tion of oral evidence would have the effect of the causes being heard with less care and deliberation than they
Before the LORDS JUSTICES. now are, while the subjects remain as serious and as difficult as they now are.
APPEALS, &c. Saunders o. Richardson We have now stated our reasons for the introduce Letts 0. London Corn Ex. | Gann v. Gregory
Byass o. Gates
change Co. (Part heard) tion of a different mode of taking the evidence in
Hope v. Threlfall (Part heard) Coppard v. Byass equity, and the answers which appear to us to meet"
April 24 the objections usually suggested.
Briggs o. Lord Oxford 1 It remains only, on Robinson, Lowater this branch of the subject, to say what practical mode of Vincent v. Godson
Briggs o. Lady Oxford
Atchison o. Le Mann proceeding we should recommend; otherwise we should Crompton v. Huber April 22 Winterbottom o. Tayloe be obnoxious to the ordinary observation, that it is M.Cormick v. Garnett (3 tits.) | Waters v. Leonard. easier to find a general fault than suggest a specific remedy.
Before the Right Hon. the MASTER OF THE ROLLS. What we recommend, then, is this 1. That parties to a Chancery suit should be at liberty
Causes, &c. to go into evidence, in the first instance, either on an Wilson o. Harley (Part heard) | Sparks v. Restal (Cause) interlocutory application, or for the hearing of the Kempson 0. Kempson (Fur- Attorney-Gen. 0. Drapers cause, as they now do on interlocutory applications ther consideration)
| Co. (F D, C) that is, upon affidavits, original, in reply, in counter
Clack o. Holland (Cause) Bentley o. Craven (Furthe
Barrow v. Barrow (Cause) reply, &c.; that every party should be at liberty at
consideration) the hearing of either an interlocutory application, or at
Lambarde o. Older (Further Daniel 0. Knight (3 titles, FD consideration)
LC) the hearing of the cause, (without any application to
Infant Orphan Asylum s. An the judge being necessary), to cross-examine orally any Baker v. Clement (ca
derson (Special case) of his opponent's witnesses, the opponent, of course, Allden v. Stamps (M for dec.) | Rees o. Gwynne (Cause) having a right orally to examine.
Fenn o. Death (Cause) Pollard o. Pollardo 2. That no party should be obliged to commence by Rooth v. Tomlinson 1 (E,FD, Pollord v. Pollard " ) affidavit either on an interlocutory application or at Same o. Same s c) | Eberhardt v. Roberts (CT)
Baker v. Read