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New Bills in Parliament : Chancery Offices abolishing.Review.

233

articles for the said offices and each of thein, or between solicitor and client, more than
or in payınent of taxes, rates, and other as- two-pence per folio, such solicitor shall forfeit
sessments charged upon or payable for or in and pay to the party suing for the same the
respect of the said offices and each or either or sum of twenty shillings for every folio so over-
any of them, or to which the said several offi-charged ; and it shall further be lawful for the
cers of the said Court or any of them may be Lord High Chancellor, in liis discretion, on
liable in respect thereof; and that such ex-complaint made to him, to strike any solicitor
penses shall be paid out of the fund entitled so making such overcharge off the Rolls of
* Account of Monics placed out for the Benefit the Court of Chancery; and on such order
and better Security of the Suitors of the High being made, it shall be lawful for the Judges
Court of Chancery," and out of the fund en in the several other Courts in Westininster
titled “ Account of Securities purchased with Hall to order that such solicitor, if admitted
surplus Interest arising from Securities carried an attorney of cither of such other Courts, to
to an Account of Monies placed out for the be in like inanner struck off the Rolls of such
Benefit and better Security of the Suitors of Courts respectively.
the High Court of Chancery,” or either of
them.

Powers under the Act.
Solicitors.

27. That the powers and authorities given 29. That every solicitor who shall be and by this act to the Lord High Chancellor shall pointed to and shall accept any office or em- and may be exerc

and may be exercised in like manner and are ployment under or by virtue of this act shall I hereby given to the Lord Chancellor, Lord forthwith be struck off the roll of solicitors of | Keeper, or Lords Commissioners for the Custhe High Court of Chancery, and off the roll | tody of the Great Seal respectively, for the of attorneys of his Majesty's Courts of Record time being. at Westminster, on which his name may be. I 28. That this act shall come into operation

on the day of Reducing Fees.

29. That this act may be amended, altered, 25. That if at any time it shall appear to the or repealed by any act or acts to be passed in Lord Chancellor that the monies and securities this present Session of Parliainent. standing to the said account to be entitled “ The Chancery Filacers Account,” together with the interest and dividends thereof, and

REVIEW. the fees expectant and to be payable to such account, shall be inore than sutticieut to an- The Book of swer and pay the several salaries and other

| The Book of Rights : or, Constitutional payments for the time being chargeable there

Acts and Parliamentary Proceedings afon, it shall be lawtul for the Lord Chancellor fecting Civil and Religious Liberty in to order such abatement to be made in the Englund, from Magna Charta to the fees hereinbefore directed to be received and present Time ; Historically arranged, with paid to such account as may to the said Lord Notes and Observations. By Edgar Chancellor from time to time seem fit, and as

Taylor, F. S. A. London: A. Maxwell, may be consistent with the purposes for which

1833. such fund is created. Copies of Pleadings and Solicitors' Charge. The object of this book is to supply, within

26. That when any party in any suit or mat- convenient compass, many documents of the ter depending in the said Court shall file any greatest value in English history and jurisbill, answer, or other pleading or proceeding prudence which hitherto must have been in the said office of the Filacer, such party sought for in bulky volumes, not very acshall cause a true copy of every such bill, an: I cessible to the general reader. The matter swer, pleading, or proceeding to be delivered to every solicitor of any other party or parties

is arranged chronologically; and each reign in such suit or matter, or to such solicitor or

| is commenced with preliminary observations, party as the Lord Chancellor, with the con- shewing the effect of the constitutional acts currence of the Master of the Rolls and Vice and parliamentary proceedings comprised Chancellor, or one of them, shall by general within it. The only Sovereigns who do order direct, and that no solicitor shall be not appear to have contributed to these allowed to charge for any such copy made to

series of constitutional acts, are Henry the · be delivered as aforesaid inore than two-pence for every folio , such folio consisting of

Fifth, James the Second, Anne, and George words; b and if any solicitor shall charge for any

the Second. such copy, either as between party and party

Our readers may judge of the value of

the collection by the following catalogue: a This reduction of charge from 100, to 2d.

Magna Charts, 17 John; Covenant of appears to be the extreme of economy, and Security 2015

a Security, 1215. can scarcely be adequate or satisfactory. ED. b It would be convenient to make the folio

the foliol Great Charter, 9 Hen. 3; Ecclesiastical 72 words, as in all the Common Law Courts. Tie itence, 1254.

Ed. Charter of Confirmation, 25 Edw. 1; 234

Review : Taylor's Book of Rights. . Ecclesiastical Sentence, 1297; De Tallagio Commission Court Abolition, 16 Car. 1. c. non concedendo, 34 Edw. 1; Statute of 11; Ship Money Act, 16 Car. 1. c. 14. Westminster, 3 Edw. 1. c. 5; Reasonable Abolition of Feudal Tenures, 12 Çar. 2. Amerciaments, c. 6; Pursuit of Felons, c. 24 ; Abolition of Writ de Heretico comnotwithstanding franchises, c. 9; Against burendo, 29 Car. 2. c. 9; Billeting of Sol. partial Inquests, c. 11; Against extortion diers, 31 Car. 2. c. 1; Habeas Corpus Act, in King's Officers, c. 26; Against deceit or 31 Car. 2. c. 2. collusion by Serjeants, &c., c. 29; Scan- Coronation Oath, Will. & Mary, ss. 1. dalum magnatum, c. 34; Against coming c. 6; Bill of Rights, Succession, &c., 1 armed to Parliament, 7 Edw. 1.; Bills of W. & M., ss. 2. c. 2; Toleration Act, 1 Exceptions, 13 Edw. 1. c. 31; Crown W. & M., ss. 1. c. 18; Triennial ParliaChallenges, 33 Edw. 1.

ments, 6 W. & M., c. 2; Trial for Treason, Revocation of Ordinances, and declaration 7 W. 3. c. 3; Act of Settlement, 12 & 13 as to Legislation by King, Lords and Com-W. 3. c. 2. mons, 15 Edw. 2.

Septennial Act, 1 Geo. 1. stat. 2. c. 38. Yearly Parliaments, 4 & 36 Edw. 3; Libel Act, 32 Geo. 3. c. 60; Dissenting Against compulsory service in arms out of Teachers' Relief, 19 Geo. 3, c. 44; Unitathe Shire, 1 Edw. 3; Against compulsory rian Relief, 53 G. 3. c. 160: Toleration finding of Men at Arms, 25 Edw. 3; Not Amendment Act, 52 G. 3. c. 155. to disturb Justice, 2 Edw. 3. c, 8; Autho- Jury Act, 6 Geo. 4. c. 2; Sacramental rity of Justices, 4 Edw. 3. c. 2; Statute of Test repeal, 9 G. 4. c. 17; Catholic Relief Treasons, 25 Edw. 3. st. 5. c. 2; Prose-Act, 10 G. 4. c. 7. cutors not to be on the Inquest of the party Reform Act, 2 Will. 4. c. 45. indicted, c. 3; none to be condemned, &c, without Process, c. 4; Process for Felony,! This is a curious list, shewing the succ. 14; none to be condemned without due cessive stages of improvement in civil and Process, 28 Edw. 3. c. 3 ; Inquest de me- religious liberty in England. We should dietate linguæ, c. 13; Impartiality in array be tempted, had we space, to make many of Jurors, 34 Edw. 3. c. 4; Pleading in extracts from Mr. Taylor's observations on English, 36 Edw. 3. c. 15.

the several leading measures which are here No man to be a Justice of Assize in his collected. His commentaries are concisely own County, 8 Rich. 2. c. 2; none to sit and forcibly written, and form of themselves on the Bench with the Justices of Assize, a valuable summary of the most important 20 Rich. 2. c. 3; Parliamentary Remon- acts of English legislation, from the Norman strance, 1381; Petitions of Commons to Conquest to the present time. At the close participate in drawing up Statutes, 1381 ; of the Norman and Plantagenet lines, Mr. Record of deposition of Rich. 2, and elec- Taylor quotes the following passage from tion of Hen. 4, 1399.

Sir. James Mackintosh : Election of Knights of Shire, 7 Hen. 4. “ It is observable, that the language of Magc. 15; Record of Arrangement as to the na Charta is simple, brief, general without Rights of the Commons in Money Bills, being abstract, and expressed in terms of authoand as to the King's interference, 1407. rity, not of argument, yet commonly so reason

Acts regulating Elections, 8 Hen. 6. c. | able as to carry with it the intrinsic evidence of 7; and 23 Hen. 6. c. 14.

its own fitness. It was understood by the simAct as to adherence to Kings de facto,

plest of the unlettered age for whom it was in

tended;- it was remembered by them ;-and 11 Hen. 7. c. l; Pauper Suits, 11 Hen. 7. I though they did not perceive the extensive con. c. 12.

sequences which might be derived from it, their Act of Supremacy, 26 Hen. 8. c. 1. feelings were, however unconsciously, exalted

Repeal of Treasons and Heresies, 1 Edw. by its generality and grandeur. 6. c. 12; Evidence of Treason, 5 & 6 Edw.

“On the English nation, undoubtedly, the 6. c. 11.5 12.

Charter has contributed to bestow the union of

establishment with improvement. To all man. Repeal of Treasons under the Reforma

kind it set the first example of the progress of tion Acts, 1 Mary, ss. 1. c. 1.

a great people for centuries, in blending their Act of Supremacy, 1 Eliz. c. 1; Act of tumultuary democracy and haughty nobility Uniformity, i Eliz. c. 2; Relief of Poor, with a fluctuating and vaguely limited mo. 43 Eliz. c. 2.

narchy, so as at length to form from these Protestation for Freedom of Debate,

discordant materials the only form of free goJames 1, 1621.

vernment which experience had shown to be Petition of Right, 3 Car. 1; Star Cham

reconcileable with widely extended dominions. ber Abolition, 16 Car, lo c. 10; High may admire the felicity of the expedient which

Whoever in any future age or unborn nation

Review : Taylor's Book of Rights.-Superior Courts : K. B. P. C.

235

converted the power of taxation into the shields in their justification, not even the direct order of liberty, by which discretionary and secret of the king.” imprisonment was rendered impracticable, and The introductory remarks to the acts of portions of the people were trained to exercise a larger share of judicial power than was ever

the reign of Elizabeth, and particularly of allotted to them in any other civilized state, in James the First, are full and interesting; such a manner as to secure instead of endan- and those relating to the subsequent reigns, gering public tranquillity ;-whoever exults at are just andappropriate. From the sumthe spectacle of enlightened and independent mary of the reign of George the Fourth assemblies, who, under the eye of a well-in-1 we select the following, as applicable to formed nation, discuss and determine the laws and policy likely to make communities great |

the present projects of legal reform. and happy ;- whoever is capable of compre- “ The opportunity, however, must be taken hending all the effects of such institutions, of recording an act, too detailed in its prowith all their possible iinprovements upon the visions for insertion here at length, but cermind and genius of a people, is sacredly bound tainly one of the most important practical aids to speak with reverential gratitude of the upon the statute book for the pure administraauthors of the great charter. To have pro- tion of justice. We allude to Sir Robert duced it, to have preserved it, to have matured Peel's jury law. By one of its provisions, it, constitute the immortal claim of England which will be extracted below, it secures a on the esteem of mankind.”a

defendant in crown prosecutions from that

' discretion,' which a public ofticer had asHe then proceeds to observe that sumed of selecting and in fact nominating

« In our progress through the legislation special juries. There is perhaps no law of and parliamentary proceeding subsequent to

modern times for which any living statesman the Great Charter, we have met with no traces

is more justly entitled to the gratitude of his of abandonment of the spirit of energy and

and country. It may be added that Sir Robert perseverance in which that great landmark Peel's plans of consolidation and amendment was founded. "The course was always progres

| of the law on particular subjects, were ably sive, and in a right direction. Whatever oc

| devised and well executed so far as they excasional infringements were made upon the te

the tended. It would be well if the same degree rights of the people, and however acquiescent

en of official attention were directed to the crude they may at times appear under such aggres. | projects of legal reform, which have of late sions, we find the following substantial restraints of the royal authority indisputably es

the conduct of individuals, and without any tablished at the period now reached.

I general supervision, proceed on no defined or “1. The king could levy no sort of new tax

systematic plan of operations, and sometimes upon his people, except by the grant of his appear not only ineffectual to any permanent parliament, consisting as well of bishops and improvement, but contradictory in the very mitred abbots, or lords spiritual, and of he-principles on which they are founded.” reditary peers or temporal lords, who sat and voted promiscuously in the same chamber, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the lower

SUPERIOR COURTS. or commons' house. 2. The previous assent and authority of the same assembly was necessary for every new law, whether of a general King's Bench Practice Court. or temporary nature. 3. No man could be senVICR OX DECLA

SERVICE or DECLARATION IN EJECTMENT. committed to prison but by a legal warrant, specifying his offence; and by an usage nearly Where the entitling of a declaration in ejecttantamount to constitutional right, he must be ment of a wrong term is immaterial. speedily brought to trial by means of regular

On a motion for judgment against the sessions of gaol-delivery. 4. The fact of guilt

casual ejector, it appeared that the service was or innocence on a criminal charge was deter

regular on the tenant in possession on the premined in a public Court, and in the county mi

mises, but that the declaration was entitled as where the offence was alleged to have occurred,

of “Easter term, 4. W. 4.;" no such term by a jury of twelve men, from whose unani

having as yet arrived. mous verdict no appeal could be made. 5.

Taunton, J.—That is sufficient. ' Civil rights, so far as they depended on ques. Rul tions of fact, were subject to the same deci- K B. poc. sion. 6. The officers and servants of the crown, violating the personal liberty or other right of the subject, might be sued in an action SHERIFF'S RETURN.-DISTRINGAS. for damages, to be assessed by a jury, or, in

Where the Court will not interfere with the some cases, were liable to criminal process;

sheriff's return. por could they plead any warrant or command

Paget applied for a rule nisi to compel the * Hist. of England, vol. i. p: 221. (sherii to pay over to the plaintiff the sum o

nted

OR

236

Superior Courts : K. B. Practice Court. forty shillings, alleged to have been levied by tody of the Marshal or the Warden, shall be the sheriff in this cause. A suminons, and then as against prisoners in the custody of the shea distringas, had been issued; and then theriff: it is not necessary to bring up a prisoner plaintiff received an intimation from the she-in the custody of the Warden by ha. cor., in riff's officer that he had levied forty shillings, order to charge him with a declaration ; and pursuant to the distringas. A summons to the same section directs that the defendant is stay proceedings, on payınent of debt and to be alleged to be in the custody of the Mar. costs, was then taken out by the defendant; shal or Warden, as the fact may be. The prebut neither debt nor costs being paid, the sent rule must therefore be discharged, with plaintiff ruled the sheriff to return the writ. costs. A return was made, stating the fact of the Rule discharged, with costs.-Barn:ll an! levy; but on application being made to the others v. Hurris, clerk, June 12, 1833. K.B.P.C. sheriff's officer, he stated that he had neither served the distrinyas, nor levied the forty shillings. Patieson. J.-Your only remedy is an action

WRIT OF ERROR.-SHAM BAIL.-NULLITY.against the sheriff for a false return, he being | answerable for his officer's default. It would

If sham buil be put in on a urit of error, the be of no use to grant the application, in order

plaintiff may treat them as a nullity and to compel the sheriff to pay over this sumn of

issue execution. money; as siuce the officer has not served the Corrling shewed cause against a rule for distringis, he cannot make an affidavit of the setting aside a fi. fa., on the ground, that it service. Without such an affidavit the plain had issued after bail in error had been put in, tiff would not be at liberty to enter an appear-to which the plaintiff had excepted, although ance for the defendant.

he had not entered his exception; nor had Rule refused.--Heward v. Edwards, May the plaintiff given a rule for better bail, ac6, 1833. K. B. P. C.

cording to the practice of the court. The cause shewn against the rule was an affidavit which stated, that the bail put in were sham

hail, who were in the habit of plying at Ser. DECLARATION AGAINST Prisoners. jeant's Inn. The plaintiff, therefore, was en

titled to treat such bail as a nullity, and issue - Huw a plaintif should declare on process is execution.

suing out of the King's Bench «guinst a Manscl in support of the rule contended, . defendant who is in the cuslody of the that the plaintiff had waived his right to treat Warden.

the bail as a nullity, by excepting to them, • In this case a rule nisi was obtained for set-eve

even though he had not entered the exception.

| Tarinton, J.-It appears from the affidavit, ting aside a declaration, on the ground of its

that the bail put in were sham bail. On the alleging that the defendant was in the custody of the Warden of the Fleet, the process issuing

authority of the cases, therefore, the plaintiff

was entitled to treat them as a mullity, and to out of the Court of King's Bench. It was contended that this was perfectly regular, as

issue execution. In this case, it is not suythe defendant was actually in the custody of

gested, that there was any real error on the

face of the record. the Warden under a writ of detainer. Where

The present rule inust, process issues against a prisoner, in the cus

therefore, be discharged, and with costs. tody either of the Marshal or the Warden. Rule discharged with costs. — Sutcliffe v. it is provided by the 2 & 3 W. 4. c. 39, § 8,5

163 Eldred, 6th June, 1833. K. B. P. C. that “ the declaration thereupon shall and may allege the prisoner to be in the custody of the said Marshal or Warden, as the fact inay be, and the proceeding shall be as against SHERIFF.—LANDLORD.- BANKRUPT. - RENT. prisoners in the custody of the sheriff, unless Where the Sheriff has seized under a f.fa. otherwise ordered by some rules to be made

and afterwards receives notice before sale by the Judges of the said Courts." The

of the landlord's claim for rent in arreur, plaintiff therefore was authorized, under the

and afterwards of a fiat of bankruptcy, authority of this section, to declare against the the assignees are eniitled to the goods, defendant as in the custody of the Warden of

unless the lundlurd has made a distress for the Fleet on process issuing from the King's his rent. Bench.

Taunton, J.-Previous to the passing of this In this case, an application was made by the act, where a defendant :vas detained in the sheriff for relief under the 1 & 2 W. 4 c. 58. custody of the Warden on process issuing out $ 6, the interpleader act. It appeared that the of the King's Bench, it was necessary to bring sheriff had made a seizure under writs of fi fu. him up by habeas corpus, in order to charge on judgments entered up on wrrrants of at. him with a declaration. But where he was in torney. The landlord gave notice before sale, the custody of the sheriff it was not necessary under the 8th of Anne, c. 14. § 1, of rent in w do so, as the? & 3 W. 4. c. 39.8 8. provides arrear. Afterwards notice was given of a fiat ikut proceedings against prisoners in the cus- of bankruptcy issued against the defendant

Superior Courts : K. B. Practice Court,

237 Under these circumstances, the sheriff applied of a term prior to that, in which judgment is to the Court for relief. On shewing cause, signed; and secondly, that section three of no one appeared for the execution creditors, the act, under the authority of which the it being admitted that the executions were speedy execution had been granted, directed void against the assignees, under the 6 Geo. 4. that " every execution issued by virtue of this c. 16. § 108. The only question therefore act, shall and may bear teste on the day of was, whether the assignees were entitled to issuing thereof." the proceeds of the sale without deducting the Thesiger shewed cause against the rule, and half year's rent claimed by the landlord. contended that although the ca. su. was irrea Chilton appeared for the sheriff.

I gular, by the improper teste, yet such an irreAddison appeared for the assignees. He gularity the Court would permit to be amended contended, that as the landlord had not made on payment of costs. a distress, and thus legally enforced his rights ; 1 Paiteson, J.-I think that even as against and as the fiat of bankruptcy had preceded the the bail, this amendment ought to be allowed sale, the assignees were entitled to the pro-on payment of costs. ceeds of the sale. In order to entitle the Rule accordingly.-Englehart v. Dunbar, landlord to receive any part of those proceeds, | 12th June, 1833. K. B. P.C. under 6 G. 4. c. 16. $ 74, he ought to have enforced his claim by distress.

Cur. adv. vult. Taunton, J.-I think it is perfectly clear,

EXECUTION.-HA. COR. AD SATISFA. that in order to entitle the landlord to Where a ha. cor, ad satisfa. is issued for the any part of the proceeds of this sale, under 6

residue of a debt after a fi. fa. executed, G. 4. c. 16. $ 74, he ought to have enforced his rights by legal process. I have consulted

it is not necessary that the former writ

should refer to what has been done under the other Judges, and the conclusion at which

the fi. fa. we have arrived is, that the assignees are entitled to the full proceeds of the sale. If the Mansel obtained a rule to shew cause in this sheriff had paid over the amount of the land- case why the ha. cor. ad satisfa. should not be lord's claim to him before he received notice set aside on the ground of its not referring to of the fint, the case might have been different; the writ of fi. fa. which had been previously but, in the present state of facts, it is impos. executed on the goods of the defendant, and sible to say that the landlord is entitled to his the levy made under it. It appeared, that a rent to the prejudice of the claim set up by writ of fi. fa. had been issued in an action of the assignees. The landlord not having en debt against the defendant, indorsed “levy forced his claim by legal process, he cannot 841. besides,” &c. The sum of 91, was levied now enforce it against the assignees. The under the writ, and the plaintiff afterwards sheriff, therefore, must pay over the proceeds issued a ha. cur. ad satisfa. for the residue. of the goods sold to the assignees, and retire At the end of it was a memorandum“ levy from the possession of those, which are unsold. 802.” This it was contended, did not suffi Each party will pay his own costs.

ciently shew the sum for which the defendant Rule discharged accordingly. - Gethin v. was to be detained. Wilks, 8th June, 1833, K. B. P.C.

Sewell shewed cause and submitted, that it was unnecessary to make any reference in the ha. cor. ad satisfa. to what had been done

under the fi. fu. The person to whom the TESTE OF WRIT.-AMENDMENT. former writ was directed, would sufficiently

understand for what amount the defendant was A ca. sa. cannot be tested of a term previous to be detained, by referring to the memoran. to the judgment, although it is issued under dum at the end of it. the 1 W. 4. c. 7. § 3; but it may be Taunton, J. was of opinion, that the memoamended on payment of costs, even as randum at the end of the ha. cor. ad satisfa. against bail.

sufficiently shewed the sum for which the de. Mansel obtained a rule nisi for setting aside

fendant was to be detained. All the informathe ca. 89. in this case, on the ground that it

tion, therefore, which was necessary to be had been tested of a term previous to the sign

given to the officer, to whom the writ was di ing of judgment. A verdíct was given against

rected, was given. It was, therefore, unneces, the defendant in Hilary vacation; and the

sary that any reference should be made from learned Judge who tried the cause, in pur

it to the fi. fa. The present rule ought, theresuance of the 1 W. 4. c. 7. 8. 2, granted speedy

| fore, to be discharged with costs. execution. Judgment was signed on the 15th

od on the 15thR ule discharged, with costs.-Green v. Foss March, and execution immediately issued. I ter (a prisoner), 9th June, 1833. K. B. P. C. The ca. 8a. was tested on the last day of Hilary Term. An action of debt on the recognizance of the bail was afterwards brought against them. A rule nisi was obtained at their in

AMENDMENT.-INTENTION. stance to set aside the ca. sa. for irregularity; / Although an order to amend is general in its on the ground that, a ca. sa. cannot be tested terms, it can only be put into effect with re

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