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Jurisdiction of London Commissioners in Chancery.

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pointment originates with, and is governed by, the Act 16 & 17 Vict. c. 78.

However, upon the issue raised, the question occurs,-Has the Lord Chancellor, in exercise of "all other powers" enabling him in that behalf, or, in fact, in exercise of any power irrespective of that vested in him by the Act 16 & 17 Vict. c. 78, extended the jurisdiction of the London Commissioner beyond the limit referred to?

I confess, I cannot discover in the terms of the London Commissioner's appointment anything to justify an affirmative reply.

There is but one word in the Commission

shall be from doing of anie manner of acts belonging to a Master of the Chancery, and prohibitinge every clarke of the inrollment, or others, to inroll or receive any writing or act thereafter to be acknowledged before anie Extraordinary Master, and all other clarks of the said Court to bring to any Master Extraordinary anie matter to be dealt in by them. Since which time, another order to the same purpose hath been made by the late Lord Chancellor Ellesmere. Yet, nevertheless, the Extraordinary Masters doe take acknowledgment of deeds, oathes of witnesses, answeres, and affidavits, contrary to the purport and meaning of the said orders as is alleged. For restraint having any relation to extent of jurisdiction, whereof, the Mastere in Ordinary petitioned and that is the word " London," which occurs the Right Honourable the Lord Keeper for in the style or designation of the person apsome new order to be made in that behalf. It pointed. In all other respects the Commission is therefore ordered by his lordship, that the does but recognise and repeat the terms of the clerks of the inrollment for the tyme being, qualification required by the Act, and all other clerks of this Court whome it doth or maie concerne, as they regard his lordship's favour and the avoidings of such punishments as by former precedents of this Court maie be inflicted upon them, shall forbeare to receive any such acknowledgments or other deeds or acts of that nature, within that cittie, or within five mile compasse of the same, by the Masters Extraordinary or anie of them, unless it be in a particular case with the speciall leave of this Courte first obteyned in that behalf."

Since the preceding remarks and extracts were printed we have received the following

communication:

To the Editor of the Legal Observer. SIR-In the notice you kindly took of my little book, "Oaths in Chancery," you differ from me in the construction of the 2nd section of the Act 16 & 17 Vict. c. 78, and of the Commission granted by the Lord Chancellor in pursuance thereof; and intimate that the Lord Chancellor had power, irrespective of that Act, to appoint fit and proper persons as Commissioners to administer Oaths, and thus, by inference, conclude that even if the terms of the London Commissioner's appointment does not express the extent of his jurisdiction, his jurisdiction is nevertheless not limited to his own office or place of business.

Not from any desire to remark upon your notice of my book, but merely for the sake of the Profession, many members of which seem still somewhat unsettled upon the point (notwithstanding the opinion expressed by the Lord Chancellor), I beg your permission to address to you one or two observations upon the subject.

It may be true that the Lord Chancellor has power, irrespective of the Act 16 & 17 Vict. c. 78, to appoint "fit and proper persons as Commissioners to administer oaths; but it is also true that the London Commissioner's ap

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The words "ten miles from Lincoln's Inn Hall," and "within such ten miles," occurring in the Act and in the Commission, appear to be used solely in relation to the qualification of the Commissioner.

If this be so, then the Act with which the appointment originates is the only source from whence the extent of the jurisdiction is to be ascertained.

Now, the construction which limits the jurisdiction of the London Commissioner to his own office or place of business is governed by the following considerations :

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1st. It were surely superfluous and unnecessary for the framers of the Act to say that a solicitor practises at his place of business. Yet this must be the construction of the words "at their respective places of business," if such words relate to the qualification only of the Commissioner. It would seem, however, that those words are used in relation to his jurisdiction, his qualification being sufficiently expressed without them.

2ndly. If the words "at their respective places of business" were necessary and intended to apply to the qualification, and not to the jurisdiction of the London Commissioner, why were they omitted in the next (the 3rd) section in reference to the appointment as Commissioners of "persons practising as solicitors in the Isle of Man, in the Channel Islands?"

To limit the jurisdiction of the London Commissioner to his own office or place of business may, in some instances, be attended with inconvenience, but a possible inconvenience may be productive of far less important consequences than a positive irregularity. And it is by no means improbable that the question may yet arise, whether an oath administered by a London Commissioner at any place other

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than his own office or place of business, is such an oath as upon which an indictment for perjury could be sustained.

This is bringing the question to a proper test; for, after all, the validity of the oath is the one essential consideration to be regarded. THOS. W. BRAITHWAITE.

[To these observations, it seems necessary only to reply, that though the Act may possibly be construed as our correspondent contends, it also bears the better interpretation adopted by the Lord Chancellor, and which is clearly more beneficial to the suitor and the public. It is probable that the narrow and mischievous construction attempted to be put on the section was intended by the person who suggested the introduction of the words in question; but, if so, they have been inserted, for his purpose, in the wrong place and the intended mischief has failed.

It may not be unreasonably asked, whether the Record Clerks and their subordi

been raised at the office as to the filing of affidavits upon which it appears that the oaths were administered within the limits, but not at the place of business, or at the office of the Commissioner."

The Lord Chancellor :-"I recollect that passed in my mind. It depends upon the construction of the Act."

Mr. Bacon:-"Yes, it depends upon the construction of the Act entirely. The Act, by the 1st section, enacts, that the persons now styled "Masters Extraordinary in Chancery," shall cease to be so styled, and they and all persons hereafter appointed by the Lord Chancellor to execute like duties in England shall be designated

"Commissioners to administer Oaths in Chancery in England," and shall possess and exercise all such powers and discharge all such duties as now appertain to the office of Master Extraordinary in Chancery by virtue of any Statute or order of the Court of Chancery, or of the Lord Chancellor, or usage in that behalf.””

The Lord Chancellor: "That applied to the country Commissioners."

Mr. Bacon:-"No, my Lord, it applies uninates, who are making this "mighty versally-that all persons who shall hereafter pother," are willing to attend at their office be appointed by your Lordship Commissioners from 9 or 10 until 5 or 6, daily, to administer oaths? During those hours, the solicitors will generally be found at their post, and for much less remuneration!]

A correspondent of The Jurist doubts the accuracy of our report of the Lord) Chancellor's Decision (p. 200, ante), in the matter of the Record and Writ Clerks, who refused to file an affidavit sworn before a London Commissioner, not at his place of business, but at the house of the deponent who was at the time unwell. We have had an opportunity of comparing our report of the Lord Chancellor's decision with the note of Mr. Bacon, Q. C., on his brief, and find it to be strictly correct; but, in order to set the matter at rest, we subjoin a copy of the shorthand writer's notes of all that passed in Court on the occasion:

Mr. Bacon:" My Lord, there is a subjectmatter I wish to bring under your Lordship's notice. A question has arisen under the Act of Parliament which was passed last year, relating to the appointment of persons to administer oaths in Chancery. Your Lordship has issued a commission under that Act of Parliament to persons, authorising them to administer oaths; and the question has arisen, upon the provisions of the Act of Parliament, whether those persons, who, as I read the Act, are clothed with all the powers that the Masters Extraordinary had formerly, can administer the oaths within the limits mentioned in the Act of Parliament, that is, within 10 miles,-or whether they can administer those oaths in their own chambers only? A difficulty has

to administer Oaths shall exercise those powers which heretofore the Masters Extraordinary in Chancery used to exercise. There is no doubt that Masters Extraordinary did administer oaths wherever it was found expedient, within the limits of the jurisdiction which had been assigned, and that they might go from their own houses to the houses of persons who were unable or unwilling, or to whom it might be inconvenient to go from their own houses to attend at the place of business of the Masters Extraordinary; and there administer the oath. The 2nd section authorises your Lordship to appoint any persons practising as solicitors within 10 miles from Lincoln's Inn Hall at the words that raise the doubt-' to administer their respective places of business'-those are oaths and take declarations, affirmations, and attestations of honour in Chancery, and to possess all such other powers and discharge all such other duties as aforesaid '-so that the reference is distinct to the powers and duties of Masters Extraordinary.'

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The Lord Chancellor:-" Are you applying exparte?"

Mr. Bacon:-"My Lord, there is an affi davit."

The Lord Chancellor :- "I mean, is there any opposition?"

Mr. Bacon:" No, my Lord."

The Lord Chancellor :-"I confess I think there is no doubt about it. That is theconstruction I put upon it when the question was first brought to my notice. It never could have been meant that the validity of an oath should depend upon the fact of whether it was administered at the usual place of business or not. That is a thing which it might be impossible to find out; and the Lord Justice Turner directs my attention to the 7th section, which shows

Jurisdiction of London Commissioners.-Limited Liability Partnerhips.

LIMITED LIABILITY PARTNER

SHIPS.

that the contrary construction would lead to
very awkward consequences :-That where
any person is or shall be authorised to admi-
nister Oaths for the High Court of Chancery,
such person is and shall be authorised to ad-
minister oaths for all suits and matters what- to an able pamphlet, containing the "OL
OUR attention has been recently calle
soever in the Chancery of the County Palatine servations of a Solicitor on the right of th
of Lancaster. To be sure, it is not absolutely Public to form Limited Liability Partner
certain that that might not mean to administer

Mr. Bacon:-"I should think so."

at his own place of business an oath in the ships, and on the Theory, Practice, and Court of the County Palatine, but it is hardly Costs of Commercial Charters," by Mr possible that that could be contemplated. Edwin Wilkins Field. The pamphle There is rather an unfortunate position of the comprises all the various topics of the words. Practising at their respective places of subject, with disquisitions on the objecbusiness within 10 miles of Lincoln's Inn Hall, tions which have been raised to limited —that is clearly what it means.” partnerships, and the Author suggests the precautions under which the proposed alteration of the Law may be safely carried into effect. Mr. Field does ample justice to preceding writers, and cites, we think, sion of this important subject. We shall, all the authorities that bear on the discusAuthor's object and purpose, as stated for the present, submit to our readers the in his introductory remarks.

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The Lord Chancellor:-"They could not at their respective places of business possess all the powers that were enjoyed by the Masters Extraordinary in Chancery, because one power was, to go to a sick man and take his oath.' Mr. Bacon:-"The facts of this case, which may mention to your Lordship, are these:Mr. Coverdale, who was a Commissioner appointed by your Lordship, was asked to attend Mr. Keith Barnes, a solicitor of this Court, who was unwell and was confined to his house, to administer the oath to Mr. Barnes. He waited

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on Mr. Barnes, and the jurat states that the affidavit is Sworn at No. 8, Upper Portland Place, Saint Marylebone, in the county of Middlesex, this 2nd day of January, 1854. Before me, Jn. Coverdale, a London Commissioner to administer Oaths in Chancery.' The Lord Chancellor :-"I think that is perfectly sufficient."

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Mr. Bacon: It was desirable that it should be settled."

The Lord Chancellor :-" Yes, it was very
well that it should be mentioned.
It was

brought under my cognisance when I first
made these appointments. I will not say I
had no doubt about it, because when the lan-
guage of the Act would possibly admit of two
constructions it is a bold thing to say
can be no doubt; but, if the construction were
there
otherwise, the mischief that was intended to be

remedied would be left untouched."

Mr. Bacon:-"Yes, my Lord. It was very desirable that the question should be settled; and I may mention to your Lordship that the gentlemen whose duty it is to attend to these matters very properly allowed affidavits to be filed in the meantime, in order that public business should sustain no interruption."

The Lord Chancellor :-"I see Mr. Berrey there. The affidavit so sworn is quite correct, Mr. Berrey."

Mr. Berrey:- "I beg your Lordship's pardon, I did not hear what you said."

The Lord Chancellor :-"You may take it that affidavits sworn anywhere, before these gentlemen, within the limits, are good, although they are not sworn at their own place

of business."

Mr. Berrey :-"I only wanted to have Lordship's decision upon it."

your

nary questions which a reader will be sure to "There are at least three or four prelimiask. In this introduction I would forestall

What are your special means of knowledge? and answer them. They will be-1st, Who are you? 2nd, What makes you write? 3rd, 4th, And in the outset give some general idea of the views you are about to advocate.

two letters, copied presently, tell almost all else "The title-page tells I am a solicitor; and required. To them I would here add, on the first and third questions, that for more than parts of the legal workshop which are adthirty years I have been a labourer in those dressed to the construction and repair of partnerships and companies; and to dealing with that I have always held a creed (unknown altheir remains when decayed. On the second, most when I entered the law; but now, I am proud to say, largely entertained; eminently the Law, hold their tenement on a repairing so, by my branch of the profession), that those lease; and I am solemnly convinced, that (exwho occupy, and live by and in the house of cept education) there is no public legislative question so all-important to the future of England, as this on which I am treating. A theories; and to be the real spirit of vitality in figment of truth, I believe, to form the nucleus our workmen's strikes and their trade unions. of all the co-operative, socialistic, and Fourier only by true legislation on the subject now And I believe that this spirit is to be extracted

before us.

"On the fourth question-I have not attempted to go over the whole subject; but rather to make these pages supplemental to an

1 Messrs. Longman & Co. are the publishers.

258

Limited Liability Partnerships.

admirable article (by whom written, I know not) in a late number of the Westminster Review, and to Mr. Troubat's (of Philadelphia) invaluable work, published in 1853. On the Law of Commanditary and Limited Partnership in the United States.' In what I have attempted to say, I have rather indicated the points and matters which seemed to me important or conclusive, than exhausted them. In legal phrase, I have rather handed in a list of witnesses than examined them.

"A Royal Commission has recently been issued to investigate this subject. From the Commissioners, I, with others, received a list containing thirty-two questions, intended, I suppose, to eliminate the entire of each exami

nant's knowledge on this subject. Those questions are the cause of my publishing the matter of these pages in its present shape, and at this particular moment. I found that in no other way could I answer them satisfactorily to

myself."

The following is an analysis of the contents of the work, divided into four chapters:

"I.-Observations on the Questions as to Limited Liability, lately circulated by the Commissioners-

1. Points of pure economical science and universal policy incumbent on Government to decide, and improperly included in the questions.

limited liability by adopting a foreign domicile.

Law on this subject, e. g., how far foreign limited liability company or corporation can trade in this country preserving its Limitation.

(d) Whether this subject can only be treated à priori, or whether there is not a true inductive experimentum crucis on it? If so, its result. (e) As to the parties personally interested in opposing the introduction of the proposed law, and why.

Whether they are not all large capitalists with established trades, not easily competed with under the present law. II-Points not sufficiently touched on in

Westminster Review article, nor in Troubat's work

Goodwill of trades preserved only by limited liability share companies.

Credit depends on conduct, not wealth. Credit of limited liability companies wholesome, of unlimited companies not.

Paternal theory of commercial legislation deprecated.

It cannot be enforced.

Its compulsory returns deceptive.

State should interfere only to protect creditors.

Otherwise it should settle all articles of partnership.

Points of chicane raised when state interferes. Troubat on this head.

Impropriety of same Government sanction-III.-Ojections to Limited Liability Law al ing this principle in colonies and repudiating it at home.

2. Points assumed untruly in the questions. Ditto as affecting limited liability partnerships exclusively, but which equally apply to unlimited.

3. Ditto omitted in the questions.

(a) As to effect of prohibition of these partnerships on the employment of capital and its indirect results in impeding the natural flow of capital.

(a 1) Results on capital itself in keeping out cheap and bringing in dear capital.

(a 2) On the channels, i. e., in creating middle-men.

(a 3) As to its effect in overstocking some

trades. (a 4) How far there are not great classes of occupation wanting great capitals and cheap capitals, and whether the present law does not interfere with the growth of such.

(b) As to the social results of limited liability law on the relations of master and workman.

e. g. If there could be a workman's strike in the Lowell Factories.

(c) Mischiefs of present law. (c1) In creating virtual partners into creditors on failure.

(c 2) In creating conflict with the law of colonies and foreign states.

e. g. Extent to which English capital gets

leged in Parliamentary Paper, 1853, No.

730

cable to this subject? How far inductive method of inquiry appli

Arguments betweeen litigants next in value. Arguments alleged by litigants against limited liability.

Arguments alleged, the inconsistency of

them.

Arguments alleged, protectionist in their

nature.

Arguments alleged, pioneer or novel trade fallacy.

Arguments alleged, foreign experience misrepresented.

Arguments alleged, companies combination fallacy.

Only the use of a speaking-trumpet asked. IV.-On the Theory and Practice of the Board

of Trade as to Commercial Charters, and their Cost

Board of Trade sits as a secret inquisition. A charter refused by it, afterwards granted in Canada.

Colonial dissatisfaction and contempt created. On the forms recently prescribed by the Board.

Their length, intricacy, and cumbersomeness. Cost of charters.

Time required to get.

V.-Report from America of working of Limited Liability Law there.

Limited Liability Partnerships.-Law of Attorneys.

By it clerks become masters.
Commandite largely superseded by charters.
Note on this report as to the effect of limita-
tion-in developing ingenuity.

In preventing workmen's strikes by improving their status.

Per centage commissions adopted from same

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the other artificial.

Concluding summary of writer's views.
Appendix No. I.-Canadian Statutes—
For limited liability banks.

For limited liability manufactures.
For limited liability public and town works.

No. II.-Verbatim Extracts of Objection to
this Law from Parliamentary Paper, 730,
with Notes-

Alleged uselessness of limited companies.
Alleged injuries of ditto.

Alleged mischief of ditto.

Alleged, should be for the novel adventures only.

Alleged experience of foreign nations."

The conclusion at which Mr. Field has arrived is thus stated in the essay :

"1. To enforce the truth and value of the theory of limitation of partnership liability, and to do this rather on general grounds than by saying it may be useful here and not there, useful for inventions, not lawyers, and so on. I have put it on the broad ground of right and general utility.

259

partnership or company than a small one; and I would apply the same rule to all.

"All the Acts of Parliament relating to the internal arrangement of joint-stock companies should be at once repealed, or rather made permissive only. Only such parts as define their external relations should be imperatively imposed in the statute book."

The question is one of the deepest importance to the commercial and trading community, as well as other classes, who may be disposed to embark a limited sum in some undertaking yielding more than the public funds or other investments. We need not add, that in proportion as clients are interested in profitable concerns, lawyers will participate in the advantage. We recommend Mr. Field's pamphlet to the attention of the Profession, as it supplies, we think, satisfactory answers to the objections raised against limited partnerships.

LAW OF ATTORNEYS.

DELIVERY OF SIGNED BILL.- COURT IN WHICH BUSINESS TRANSACTED. THE defendant, a London attorney, enclosed to the plaintiff, an attorney practising at Haverfordwest, a writ of summons for service on the defendant in an action of Poole v. Barker, and the plaintiff, by letter headed Poole v. Barker, apprised the defendant of the service, and added his charges for the same. The de"2. To protest against the modern theory that Government ever should be allowed to in- fendant then wrote requesting the plaintiff to terfere among parties associating for trading send an affidavit of the service, with an account purposes, and to regulate their contract of as- of his further charges, which the plaintiff acsociation, be they two or two hundred in numcordingly did, by letter headed Poole v. Barker. ber. The Government may well have permis sive articles of partnership drawn out, but they The defendant afterwards inclosed notice of should not have imperative ones. The con- declaration and particulars of demand for serclusions I have desired to establish are: That vice in the action, and the plaintiff accordingly all forms and terms of association already de- had the same served and wrote to that effect, vised, or which future ingenuity or need shall be able to devise, should be permitted on the with his further charges by letter headed in sole condition of registering the names of the the action as before. These charges not havassociates; and where they are not on an un-ing been paid, the plaintiff brought his action

limited liability basis, of marking the firm's to recover their amount, to which the defendtitle with the word limited.' I would extend this necessity of registering the names of ant set up as a defence, under the 6 & 7 Vict. partners to all private firms whatever. There c. 73, s. 37, the omission of the Court in which is a perpetual inconvenience now found, in the business charged for was done. many ways, from there being no such register. And, at the same time, I may remark, that the frequency of the case in which the names of partners, even in very great houses, is unknown to those who deal with them, is a demonstrative proof how little credit depends on the mere money the partners possess. I do not see the necessity of registering the articles ter, that the client may well enough be supof partnership. At any rate, there is no more posed not to know where the business charged justice in requiring this in the case of a large for has been done; it is but one transaction of

Maule, J., in his judgment said:-"This is not, like some of the cases where attorneys' bills have been the subject of discussion with reference to this Statute, a case where the bill consists of a series of charges of such a charac

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