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The Jurist

o. 933-VOL. XVIII.

NOVEMBER 25, 1854.

NAMES OF THE CASES REPORTED IN THIS NUMBER.
COURT OF CHANCERY.

chroder v. Schroder. - (Will Election-Lapse of
Time-Account-Revocation of Codicil, Effect of) 987
COURT OF APPEAL IN CHANCERY.

x parte Bailey, in re Barrel.—(Bankrupt Law Consolidation Act-Preference of Creditor under Sect. 167 not extended to Benefit Building Societies— 4 & 5 Will. 4, c. 40, s. 12, and 6 & 7 Will. 4, c. 32, 8. 4, repealed by the Bankrupt Law Consolidation Act)

ROLLS COURT.

988

Pomfret v. Perring.—(Power-Appointment-Revoca-
tion and new Appointment, what amounts to).... 989
VICE-CHANCELlor Kindersley's Court.
Jenkins v. Briant.-(Practice-Changing Solicitor).. 992
VICE-CHANCELLOR WOOD's Court.

PRICE 1S.

COURT OF QUEEN'S BENCH.

Reg. v. The London and North-western Railway Com-
pany.-(Lands Clauses Consolidation Act, 8 & 9
Vict. c. 18, s. 68-Compensation Jury- Question
of Title Obstruction of Way-Verdict negativing
Right-Conditional Assessment of Compensation
-Surplusage) ...

COURT OF COMMON PLEAS.
Hughes v. The Great Western Railway Company.-
(Railway Company — Carriers-Special Contract
-Delivery within a reasonable Time-Practice
-Nonsuit)..

COURT OF Exchequer.

993

1001

992

-National Character)...

The Ostsee. (Costs and Damages)

1005 1006

Parry v. Huddleton.-(Legacy-Interest) .....
Vale v. Merideth.—(Pleading─Disclaimer—Costs).. 992

ADVERTISEMENTS.

if the junior were sufficiently conscious of his true

The Scale of Charges for Advertisements will in future be position, and of the accidents which might suddenly follows:

deprive him of the "dominus litis," he would take care to be prepared for the entire management of the case. The status of the junior, therefore, was sufficiently important and responsible under the old system. We are anxious to see that status retained, and, if not at the expense of the client, improved. But if there is one matter more than another that requires the united aid of skill, tact, and experience, it is the summing up of the evidence which has been presented to the jury. In the fulfilment of this duty, it will often be necessary to extract the real question for decision from a mass of THE question, whether the leading or the junior complicated testimony; to reconcile discrepancies, not ounsel in a cause should "sum up" the evidence only in the evidence, but also between the evidence under the Common-law Procedure Act, 1854, has been and the opening speech; to account for short-comings aised on several occasions, but has not yet received and the breaking of the promise which had been held any definite solution. The inquiry involves a consiout to the jury in the former address; to apportion the leration, and perhaps ultimately a re-constitution, of degrees of credit to the different witnesses; to comment he relative functions of leaders and juniors.

LONDON, NOVEMBER 25, 1854.

The practice of the majority of leaders has hitherto been to take the summing up into their own hands; on one or two occasions, however, the performance of his duty has been imposed on their "young friend." Looking at the subject in its public aspect, we think here can be little doubt, that, as a general rule, the eading counsel should himself conduct that part of the cause which requires delicate and careful management. It is upon this principle that he has always re-examined his own witnesses, cross-examined those of his adversary, addressed the jury, and argued points of law as they arose at the trial. The junior no doubt has been, or ought to have been, assisting his leader in these various operations by way of suggestion, but the latter has had the public conduct of them. At the same time, | VOL. XVIII.

TT

upon the weight and strength of evidence; to point out corroborating circumstances; and to present the case as a whole in its most favourable and winning form to the jury.

Suppose this function to be feebly discharged, how much of the effect of the opening address, and of the testimony given in support of it, will be destroyed! Then, if the summing up is on behalf of the plaintiff, it will be followed by a speech from the leader for the defendant, who will skilfully avail himself of any unguarded points left by the plaintiff's junior. We, therefore, think that it will be a mischievous innovation if the leader yields so important a part of the cause to his junior.

There is, however, a mode of raising t the junior, and of relieving to som

on of

We hope that the Bar will come to an arrangement upon this subject, and that it will be in accordance with the views which we have suggested. We feel confident, that if carried out, they will be productive of advantage, not only to leaders and juniors, but also to the public at large.

way

of the leader, without in any way interfering with the them the authority for directing a multitude of opera interests of the client. It is simply this-let the junior, tions, which must, nevertheless, be carried into effect, in whichever instead of merely opening the pleadings, open the case. the militia is raised. The 15 & 16 Vict. c. 50, enacts, that "the lieutenants shall direct their Nothing is required for this purpose but a clear and deputy lieutenants, or the colonels or commanding simple narrative of the facts, according to his instruc-officers of the regiments, battalions, or corps of militia, tions-the more general the outline, and the less the to proceed to raise and inrol volunteers, &c., and such detail, so much the better. This statement it will be deputy lieutenants, colonels, or commanding officers, for the leader to fortify, to support, and to clench at the and the commissioned and non-commissioned officers of proper time. Of course, in such a case, the "summing manding officers, shail forthwith proceed to raise such the militia duly authorised by such colonels or com up" by the leader would not he strictly what is meant volunteers," &c. (Sect. 11). And this is the only by that term, but a general address to the jury upon section which gives any idea how the working of the the whole case. We believe that the summing up act is to be carried into effect. It does not in any manbefore election committees and on appeals at quarter ner point out by whom-that is, by what officers or sessions, where such a practice prevails, has not been persons-the duties are to be performed. When, therefore, the militia was raised in 1852 and 1853, the duties confined to mere comments upon testimony; it certhat had to be done in raising it were left, as it were, tainly has not been so on several recent occasions at to go begging; and we have reason to believe that in Nisi Prius, and it will probably be like the "reply," fact the militia was raised very much through the aid which has never been treated as a mere answer to the of the machinery of general and sub-division meetings, defence, but a general review of the whole case. with all their corollaries, as if it had been raised by ballot, although those meetings had no legal authority, or even existence. The consequence was, we believe, a fearful confusion, when the inevitable question after wards arose, by what authority much of the duty had been done, and in particular what public department was liable, and to what extent it was liable, for the almost unavoidable expense incurred in and about the public duties cast by the act upon somebody. solidated into one general act, repealing entirely all preIt appears to us that all these acts ought to be conexisting acts, and re-enacting whatever is necessary for there is no more fruitful source of confusion and litigation than repealing an act, so far as it is not inconsistent with a new act-a course which invariably lets in the most difficult questions. It appears to us also, be effected should be this-to distinguish and keep sethat the system on which any such consolidation should parate entirely the enlistment by ballot and the enlist ment by voluntary inrolment, making each branch of the act complete in itself. Doubtless there are many things which must be common to both systems. The paying of the militia, for instance, provided for by the ther it results from voluntary enlistment or from com17 & 18 Vict. c. 109, must of course be the same, whe pulsory enlistment under the ballot. So must the providing of storehouses, &c., provided for by the 17 & 18 Vict. c. 105. So must its discipline, provided for by the several acts in force, and the articles or regulations issued by the Secretary-at-War for carrying into effect But a consolidated act could without difficulty provide the details of the Mutiny Act as applied to militiamen. for these things, by separate chapters devoted to each of these branches of the militia service, stating when they are to be applied to the voluntary system, when to the ballot system, and when to both. The impor when it is stated that a not inconsiderable branch of a tance of such a consolidation will be the more apparent public department is entirely engrossed by attention to the business of the militia force, and that innumerable questions of great nicety and difficulty are continually cast upon that branch for consideration, arising out of the multitude of statutes, and the confused form in but not least, out of the circumstance that the act of which they are heaped one upon the other; and last, 1852, the keystone of the voluntary system, literally provides no intelligible machinery whatever for raising and organising the militia; so that if the statute of Geo. 3, which never was meant, and is not now meant, to govern the raising of the volunteer militia, were endeputy lieutenants, colonels commanding, and all the tirely out of the way as a quasi guide, lord lieutenants, subordinate functionaries, would have literally to improvise, and carry into effect upon their own responsi

Ar the present time, when the due regulation of the militia is a most important object, having regard not merely to its being really the only home army, but to its being a sort of depôt from which, under the circular recently issued by the Secretary-at-War, our regular foreign army will be from time to time recruited, it is of great importance also that the legal public should be informed of the manner in which its organisation and maintenance are provided for by the Legislature, and in which hereafter it is to be raised, organised, and maintained. At present the acts of Parliament under which these things are done are in most glorious confusion. Their name is legion, and the enactments of the older ones are repealed, re-enacted, or preserved by new acts, enacting entirely new things, so far as is not inconsistent with the new acts, in a way which makes it puzzling for even any lawyer, when consulted, to give an opinion; à fortiori, for the multitudes of persons concerned, not being lawyers, to know what to do.

The militia is raised or raiseable in two ways-by ballot, as of old, and by voluntary enlistment under the 15 & 16 Vict. c. 50, (1852), and various subsequent acts. The raising by ballot is still to be conducted under the 42 Geo. 3, c. 90; all the machinery of that act is expressly and specially adapted for the ballot; and none of it is even adaptable, except by what the lawyers call a twisted construction of the act, for the voluntary raising of the militia. The enactments of the act of Geo. 3 operate entirely through general meetings of the lieutenancy and sub-divisional meetings of the deputy lieutenancy. The most minute directions are given for the doing of every duty, whether by officers, commissioned and non-commissioned, or by magistrates, constables, &c. But all the authority exercised in the execution of these duties under that act emanates from general and sub-division meetings. On the other hand, the statute of 1852, and subsequent acts, in effect abolish general and sub-division meetings, except as connected with the ballot, and with