Incorporated Law Society—Mr. M. Archer Shee's Introductory Lecture. 105:

of subjects and detail to which its operation especially where the title and consequent pos-
extended would naturally secure for it a very session were derived from recent, or compara-
large share of their attention as they proceeded tively recent dealings between man and man.
in the investigation of the principles and prac- Accordingly, it was the province of positive
tice of Equity. In the preliminary and cursory law to prescribe the ceremonies which were to
view of his subject which he had proposed to give full legal effect to transactions, having for
himself in that evening's discourse, chrono- their object the arbitrary transmission of pro-
logical propriety and philosophical accuracy perty from one owner to another. Thus, the
alike suggested that he should first deal with formalities necessary for the due execution of
the more general and less technical charac-deeds inter vivos, and those which were re-
teristics of the science.
quisite to give validity to testamentary disposi
The intervention of Equity, in relieving tions, were clearly defined by law-and the
against fraud perpetrated under the sanction document fulfilling these technical requisitions,
and by means of the machinery of legal forms, secundum subjectam materiem,—if executed by
constituted a part of its functions of which the the party having the necessary legal dominion
rationale could not but be easily apprehended, over that subject matter, was, of course, primá
and the moral necessity admitted without hesi- facie, unimpeachable.
tation. It was a jurisdiction of such obvious It was obvious, however, that there were a
expediency, on the clearest principles of simple variety of possible circumstances, under which
justice, that it seemed almost superfluous to ex- a great practical injustice might be the result
plain its action by the ordinary method of illus-of allowing its technical effect to a legal docu-
trative example. Still, as a recurrence to first ment, executed with all due formalities. Igno-
principles, however familiar they might be to rance or misapprehension on the part of a
the reasoning mind, could never obstruct, and vendor or donor, as to the extent or importance
might often facilitate, its progress towards of the interests with which he is purporting
logical or philosophical truth, it might be as to deal,-fraudulent misrepresentations made
well to proceed step by step in the process of to him as to the value of the supposed equiva-
illustration,--submitting, if necessary, to the lent for which he has stipulated,-undue influ-
reproach of being trivially or tediously expla-ence, arising from peculiar social, or confi-
natory, for the sake of avoiding the more se-dential relations, - brought to hear on his
rious risk of being imperfectly understood. fears or his feelings, these and many other
Positive law, it was evident, must be founded circumstances affecting the relative position
on general rules, which, however judiciously of the contracting parties, might each in
framed, would often exhibit an unsatisfactory
result in their application to individual cases.
The law which conferred on a man the ab-
solute control over any species of property,
necessarily implied that he was morally and
intellectuaily a free agent in dealing with the
interest so vested in him. His fitness to be
trusted with that control, implying such free
agency, and apart from the question of abso-
lute mental incapacity, which, in all systems,
must necessarily form a ground of personal
disqualification,-could be ascertainable only
by reference to a general standard of age; and
the law, accordingly, in this country, as in all
other civilised countries, fixed the earliest
period of his life at which a man should be at
liberty to exercise the rights of ownership over
that which was defined to be his property.
Whether he would act wisely or foolishly in
dealing with those rights, was a question with
which the law could have no concern. With-
in the limits of law, and to the extent to which
it recognised the subject-matter of property as
a thing transmissible from one person to an-
other, ad arbitrium possidentis, and so as to
effect a total or partial change of ownership,
the will of the owner, -being a person compos
mentis and sui juris, must be unfettered.

The secure possession of property, however, -a necessary condition of civil life in all rational communities, and one on which the existence of that absolute power of disposition of which he had been speaking, was necessarily contingent, must often depend on certain formal and documentary evidences of ownership;

its degree, and according to its bearing on the facts of the case, afford the strongest moral grounds for setting aside a transaction entered into on both sides, with every external evidence of freedom and deliberation.

But clear, and, indeed, self-evident as was this proposition in theory, when they attempted to define the exact limits which, in practice, must be held to separate material from unimportant error as to fact,-trivial exaggeration from designing falsehood.-and the legitimate bias of gratitude or affection, from the despotic control which plausible knavery could so often exert over moral weakness or irresolution,they soon perceived the enormous difficulty of laying down any general rule which should, in terms, be applicable on all occasions where the validity of a document was challenged on any one of the grounds to which he had above adverted; and it was at once admitted that the true solution of each individual case must depend on the close application to its peculiar circumstances of nicer and more exact principles of judicial morality than could well be embodied in a clause of the most skilfully framed Act of Parliament, or an article of the most carefully digested code. That nice adjustment of the scales of moral justice, when the balance would be injuriously affected by the weight of mere legal forms, was the peculiar province of Equity as administered in our Courts. How far the distinctions which suggested themselves between the judicial requirements of the two systems might affect the question of the expediency or inexpediency of

106 Annual Reg. of Attorneys.-Education of Attorneys-London Commissioners in Chan. keeping separate the jurisdictions of Law and it is doubtful whether the lawyer does best Equity, he did not stop to inquire. But it was impossible to impress too strongly on the mind of the student, who would master the details of the latter science, the necessity of reflective consideration in working out its true principles, and close ethical as well as logical reasoning in their practical application.

[The remaining part of this Lecture will be given in the next Number.]

with or without such attainments; but it surely cannot be denied that the more devoted a man is to one subject the better he will become acquainted with it, and that the Law is sufficient in itself to occupy him fully.

Instead of literature and science, the Public look to a professional man for habits of business and a knowledge of the world, in addition to his legal acumen. If the others be required, different sources, will yield them, and to make the choice of a profession dependent on matters

ANNUAL REGISTRATION OF AT foreign to it, appears not only unjust, but

TORNEYS.

LAST DAY FOR REGISTRAR'S CERTIFICATE.

OUR readers are aware that the 16th inst. is

absurd.

MINISTER OATHS IN CHANCERY.

the last day for paying the Stamp Duty on the LONDON COMMISSIONERS TO ADAnnual Certificates of Attorneys, but in order to pay this tax to the Inland Revenue, they must first obtain the certificate of the Registrar of Attorneys, at the Hall of the Incorporated Law Society, in Chancery Lane.

The Act of Parliament allows the Registrar six days after having received the usual declaration, signed by the attorney himself, or his partner, or (in the case of country attorneys) the London agent. In strictness, the declarations should be lodged on Saturday, the 10th inst., but we understand that the preparations which have been already made will enable the Registrar to complete the certificates, if the declarations are lodged on Monday the 12th.

EDUCATION OF ATTORNEYS.

To the Editor of the Legal Observer. SIR,-Your article of last week prompts me to observe upon this subject, with reference to the suggestion that the Examination should be extended beyond legal subjects

That a knowledge of Latin and French, as suggested by you, is desirable is admitted, but that it should be made a "sine quá non 99 to admission may be disputed; but, above all, the addition of literature and science, as urged by your correspondent, invites objection.

If it was not deemed essential when a reason existed for insisting on a knowledge of Latin and French (the use of them in legal proceedings), to subject the Candidate for admission to an examination thereon -"à fortiori," no impediment should be offered on that score now that the reason has ceased.

Independently of the modern desire of the Legislature and the Public to get rid of technicalities, there is a stronger argument against a classical examination, which is, that it would invite a sacrifice of time at the expense of those hours necessary to be devoted to legal studies. Upon the subjects of literature and science,

THE Right Honourable Robert Monsey Lord Cranworth, Lord High Chancellor of Great Britain, by virtue of an Act passed in the Session of Parliament holden in the 16th & 17th years of the reign of her present Majesty, intituled "An Act relating to the appointment of Persons to administer Oaths in Chancery, and to Affidavits made for purposes connected with Registration," and of all other powers enabling him in that behalf, has been pleased to appoint the following practising Solicitors, whose place of business is within 10 miles from Lincoln's Inn Hall, to be London Commissioners to administer Oaths in Chancery, so long as they shall continue to practise as Solicitors within such 10 miles as aforesaid :

George Herbert Kinderley, 6, New Square, Lincoln's Inn (President of the Incorporated Law Society, U. K.)

John James Joseph Sudlow, 33, Bedford Row (Vice-President).

Benjamin Austen, 4, Raymond Buildings, Gray's Inn.

Edward Savage Bailey, 5, Berners Street, Oxford Street.

Keith Barnes, 7, Spring Gardens, Westminster.

Thomas Clarke, Ordnance Office, Pall Mall. William Strickland Cookson, 6, New Square, Lincoln's Inn.

John Coverdale, 4, Bedford Row.

William Loxham Farrer, 66, Lincoln's Inn
Fields.

John Swarbreck Gregory, 1, Bedford Row.
Richard Harrison, 2, Gray's Inn Square.
Bryan Holme, 10, New Inn.

Henry Lake, 10, New Square, Lincoln's Inn.
Germain Lavie, 8, Frederick's Place, Old
Jewry.

Edward Lawford, Drapers' Hall, Throgmorton Street.

Barristers Called.-The Fusion of Law and Equity.

Robert Maugham, Law Society's Hall, Chan-way for "Numa" to beg the question as to the

108

value of which stock is not covered by the stamp on his probate or letters of administration, is probably that with which the Publis is most conversant. I have always entertained an opinion that this practice is not only indefensible, but illegal: indefensible, so far as the

The Fusion of Law and Equity.-Stamped Affidavits at the Bank.-Moot Points. rights and obligations shall be asserted and enforced. If we admit any alternative to positive law, the necessary consequence is (and has been) the gradual formation of an antagonistic system of law concerned about the same subject-matter; for are not "Common Law" and Equity Law" perpetually clash-stamp is concerned, because I imagine that ing with and contradicting each other, and too often, in the conflict of their discordant principles, effecting the ruin of the suitor?

A distinguished Scottish jurist, Mr. Bell, observes-Law Dictionary," Art. "Equity," that "it is of much importance to avoid the adoption of what are called Principles of Equity,' which, however well fitted they may be for the consideration of a Legislature, generally do more harm than good when permitted to influence the determination of a Court of Justice. See Bl. 3, 566, where an exposure will be found of the errors into which Lord Kaimes has fallen."

It is impossible to read the "Commentaries" here referred to without feeling that their purport is ironical, and that the illustrious Author, notwithstanding his vocation to uphold "things as they were," barely palliates an anomaly which he does not profess to admire.

such affidavits fall within an exemption in the
Stamp Act, 55 Geo. 3, c. 184, under the head
"Affidavit;" and illegal in consequence of
the 14th section of the 5 & 6 Wm. 4, c. 62. I
should be obliged to any of your correspond-
ents who would state their views upon the
subject; and to that end the insertion of this
letter in your Journal will be esteemed a favour
by
R. P.

nancy.

MOOT POINTS.

LICENSE TO DEMISE.

A careful solicitor will take care and

objections to "Licenses to Demise" on very YOUR correspondent "Amicus" rests his slender grounds. I have seen a great many documents of that description, but never met with one dated after the habendum in the lease, that is, to take effect from a period It is, however, some consolation to reflect, subsequent to the commencement of the tethat America has set an example which must see that his instructions to the steward are force imitation, and that the reign of Common clear on that point, and I am led to suppose Sense is at hand. The object will now be, not that the case put by "Amicus " is purely hypoto multiply Law suits, but to simplify Law, thetical, for the sake of hanging an objection and, as a necessary consequence, the "beautiful disorder," incidental to "Law or Equity," will to fell timber and pull down buildings; upon. What does he say to the other licenses, no longer form a part of the system of Justice. these, I presume, are as equally obnoxious to Equity," and her attendant phantoms are "Amicus" as licenses to demise, -as they only awaiting their dismissal to the realm of must, according to his notions, interfere with shadows, their proper abode. If "Numa is the owner having power to deal with his proof the party, he may at least comfort himself perty as he may think fit. If the system is with the plaintive exclamationbad, abolish it altogether, but it will be unwise Legislation to "tinker" the Enfranchisement Act, by lopping off only a branch of one of the grievances, and leave others equally as distasteful remaining. HOMAGE.

"Tu vallem egeria descendimus!"

BRUMA.

[We have been compelled to omit some further examples of our learned Correspondent's erudition and sarcasm, but have preserved, we trust, all such parts of his letter as bear on the question of the "Fusion of Law and Equity," which we wish to be argued practically and concisely, in order to secure the attention of our readers.—ED.]

STAMPED AFFIDAVITS AT THE
BANK.

To the Editor of the Legal Observer. SIR,The practice at the Bank of England of requiring stamped affidavits upon certain occasions where it is requisite to remove some impediment to the transfer of stock, is well known. The case of a person dying possessed of trust stock standing in his name alone, or in a joint account wherein he is the survivor, the

Notes of the Week.-Superior Courts: Lord Chancellor.-Rolls.

afterwards, marries C., also possessed of valu-
able real estate, and, in a month after the se-
cond marriage, is confined of a male child, D.
Under these circumstances, is D., in law, to
be considered the son and heir of A., the first
husband; or the son of C., the second hus-
band; and would his birth divest the estate
from the person who would otherwise be A.'s
heir-at-law.
AN INQUIRER.

NOTES OF THE WEEK.

109

King, November, 1830, and Attorney-General,
November, 1832. He accepted the office of
Master in the year 1839. He ranks as a
Bencher prior to Lord Brougham and Lord St.
Leonards.

NEW SERJEANT-AT-LAW.

George Atkinson, Esq., of the Northern Circuit, was sworn in before the Lord Chancellor on the 5th instant, as Serjeant-at-Law. He was called to the Bar by the Society of the Inner Temple, 12th June, 1840. He "Tout temps MR. SENIOR and Sir W. Horne, have been gave rings with the motto, released by the Lord Chancellor, under the prist." He is a native of Westmoreland, and

RETIREMENT OF TWO MASTERS IN CHAN-
CERY.

powers of the Masters in Chancery Abolition Act, and the causes remaining unfinished in their offices have been transferred to the five remaining Masters.

Master Senior was called to the Bar by the Society of Lincoln's Inn, 28th June, 1819, and attained great eminence as a conveyancing barrister. He was appointed a Master in Chan, cery on the 10th June, 1836.

Sir William Horne was called to the Bar by the Society of Lincoln's Inn, 23rd June, 1798, promoted to the rank of King's Counsel, Trinity Vacation, 1818; Attorney-General to the Queen, 1830; Solicitor-General to the

the author of the following works:-"The
Worthies of Westmoreland," "International
Law,"
," "Sheriff Law," "The Shipping Laws
of the British Empire," &c. His promotion
seems to give general satisfaction.

Mr. Frederick Morrell has been appointed Solicitor to the Oxford University, in the room of Mr. Baker Morrell, resigned.

NEW MEMBER OF PARLIAMENT.

Evelyn Philip Shirley, Esq., for the Southern Division of the County of Warwick, in the Lord Brooke), now Earl Brooke and Earl of room of George Guy Greville (commonly called Warwick, summoned to the House or Peers.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lord Chancellor.

COSTS

In re Ashenhurst's Patent. Nov. 4, 1853. PATENT LAW AMENDMENT ACT. OCCASIONED BY OBJECTIONS AFTERWARDS WITHDRAWN.-PETITION TO SEAL.

On a petition to seal a patent and to extend the time for filing the specification, it appeared that objections had been filed under the 15 & 16 Vict. c. 83, but had been since withdrawn: Held, that the costs occasioned thereby, and of the petition, must be borne by the objector.

Darling appeared in support of this petition to seal letters patent for improvements in pianofortes, and to extend the time for filing the specification. It appeared that objections had been filed under the 15 & 16 Vict. c. 83, but that they had been afterwards withdrawn.

The Lord Chancellor, in making the order, directed the costs occasioned by the objections and of the petition to be paid by the objector.

CUTION.-TAXATION OF COSTS.-MOTION
TO STAY.-PRACTICE.

On a motion to dismiss, for want of prosecu-
tion, a bill filed in 1845, an order was
made for the plaintiff to set it down for
hearing, and sue out and serve a subpœna
to hear judgment within a week, or that the
cause should stand dismissed. The plain-
tiff's solicitor omitted to serve the sub-
pana within the time limited, in the belief
it would be sufficient to do so 10 days be-
fore Michaelmas Term, under the 10th
Order of 8 May, 1845, art. 46, and the de-
fendant thereupon obtained a warrant to
tax the costs. A motion to stay the taxa-
tion was refused, with costs.

Semble, also, the motion should have been to restore the bill.

THIS was a motion to stay the taxation of costs pursuant to a warrant obtained by the defendant under an order in this cause on July 14 last, on a motion to dismiss for want of prosecution, upon the plaintiff to set down the Bartlett v. Horton. Nov. 3, 1853. cause for hearing, and sue out and serve a DISMISSAL OF BILL FOR WANT OF PROSE-subpoena to hear judgment on the defendant

Master of the Rolls.