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490

Mode of Taking Evidence in Chancery.

ducted as to raise frequent discussion on the permits irrelevant, or unnecessary, or im

materiality, relevancy, or leading nature of the questions; and answers are often given which cannot be received as evidence within the personal knowledge of the witness. In such instances it is almost impracticable for the examiner satisfactorily to discharge the duty which is so readily and conclusively performed by a Judge at Nisi Prius.

If power were given to the examiner to determine points raised before him on the propriety of the questions propounded to the witnesses, it would evidently be necessary to allow an appeal to the Court against his decisions, because in many instances, on the admission or exclusion of evidence, the main question in the cause may depend. The mode of proceeding on such an appeal is however not without difficulty. Must the appeal be made forthwith and the further examination be suspended? or should the evidence tendered be taken subject to the objection to be decided at the hearing of the cause? and should the Court of Appeal be empowered to examine the witnesses if either party desired, and at the peril of the costs of such examination in the discretion of the Court? These are important points for consideration.

There can be no doubt, however, that the delay, inconvenience, and expense in taking evidence in the Court of Chancery arise chiefly in litigated cases where most of the facts are disputed. In the majority of cases the evidence by affidavit is satisfactory; and in many suits where the facts deposed to cannot be disputed, an examination upon interrogatories before the examiners may be sufficient.

The greatest proportion of expense takes place in cases wherein the facts are disputed, and the examination is conducted by counsel, not only for the plaintiff, but for several defendants, appearing by their respective counsel and solicitors. In these really litigated cases, few in number but of great importance, it has been suggested that a viva voce examination should take place in Court before the Judge who hears the cause, and who would thus possess the great advantage of seeing the bearing and the conduct of the witnesses under examination.

The Judge, being acquainted by the perusal of the pleadings with the points in issue, would confine the examination to those points, and restrain unnecessary questions. Although the examiner may be furnished with the pleadings, he naturally hesitates to interrupt the counsel, and often

proper questions to be put and answered, leaving to the Court afterwards to overrule or expunge any objectionable parts of the evidence. On the other hand, the Judge would decide the point at once, and his decision would govern the subsequent parts of the examination. Thus there would be a great saving of time in the examination itself, and in the evidence taken down in cases which might afterwards be the subject of appeal.

Connected with these points the suggestion has been revived of increasing the number of Judges, to enable each Judge to appoint certain days for the viva voce examination of witnesses in such cases as he may deem necessary, or as either party may require, but subject to the payment of costs if such viva voce examination be unnecessarily called for.

It will be recollected that a material distinction exists between causes in Equity and actions at Common Law. The latter almost invariably involve disputed facts, while a great part of the business in Chancery is administrative, and not strictly speaking hostile. It is anticipated, therefore, that two more Judges would be able to carry into effect the proposed improvement, and that this would be far preferable to the appointment of an additional number of examiners, who, though they might diminish the delay which now takes place, and continue the examination de die in diem, would be liable to all the other objections of the present course of proceeding.

It may also be observed that, besides the Lord Chancellor and Lord Justices as Judges of Appeal, there are only four Judges of original jurisdiction in all in the Courts of Equity, whilst in the Common Law Courts there are 15 Judges, with an appeal to the Exchequer Chamber. In addition to which there are 60 County Court Judges, acting chiefly in matters of Common Law, and whose labours have largely diminished the business of the Superior Courts. The amount of property involved in suits in the Courts of Chancery far ex ceeds in value that of the Common Law Courts. Not less than seven millions annually are paid into the Court of Chancery, and the gross sum now in the Bank of England in the name of the AccountantGeneral, is little short of fifty millions. In addition to which are the numerous estates, and real and personal property, comprised in various other suits and proceedings. It is submitted, therefore, that for the decision

The Chancery Commissioners' Questions on Evidence.

and control or management of this vast property, the expense of two additional Judges would be of small moment in the estimation of Parliament.

THE CHANCERY COMMISSIONERS'
QUESTIONS ON EVIDENCE.

THE following Questions on the present System of taking Evidence in the Court of Chancery, have just been issued, and it is requested that the answers thereto may be addressed to Mr. Chapman Barber, the Secretary to the Commission, No. 11, New Square, Lin

coln's Inn.

We understand that the answers of solicitors are invited.

I.-The following objections have been stated to the present system of taking evidence in the Examiner's Office:

1st. That the examiner has no power to determine on the materiality or relevancy of the questions put.

2nd. That the examiner declines to take down matters which he conceives to be inadmissible as evidence.

3rd. That by taking down the evidence in the form of a narrative, the true effect of the examination is not conveyed to the Court.

4th. That the Court, not seeing the demeanour of the witness, is unable to form a true estimate of his credibility.

5th. That the examination not being continuous, opportunities are afforded for enabling a witness to alter his testimony, and for adducing evidence to meet particular points on which the witness may have broken down.

6th. The delay which arises from the examination not being continuous, and the difficulty of obtaining appointments except at long in

tervals.

7th. The expense which arises from the same

source.

8th. The loss of time of the examiners from parties failing to keep their appointments with the examiners.

9th. That the examiner has no power to commit a witness for refusing to answer.

10th. That a witness may demand an unreasonable sum under the name of expenses before giving his testimony.

Do you consider that the defects above pointed out exist, and can you suggest any and what mode of remedying them?

II.-Have you observed any additional defects in the present system of the examination of witnesses in the Court of Chancery?

1st. In the examiner's office.

2nd. Before a special examiner in London. 3rd. Before an examiner in the country. State the defects which have occurred to you. Can you suggest any and what mode of remedying these defects?

491

III. If the examiner had the power to determine on the materiality or relevancy of questions, would it, in your opinion, be necessary or advisable that the parties should have liberty to appeal to the Court upon such decision?

IV. If the examiner refused to allow questions which he considered immaterial or irrelevant to be put, in what form and at what time should the party be at liberty to appeal ?

V.-If, at the time the witness is under exaseveral such appeals in the course of one examination, it is possible that there might be mination, and would it be practicable to have such appeals heard and determined without great delay and expense?

VI.-If the appeal is made after the examiit might not be necessary to have a fresh exanation is concluded, does it occur to you that mination of witnesses and so on toties quoties? Does it also occur to you that it would be necessary in some cases that the merits of the

cause should be entered into in order to determine the question?

which at first sight seems immaterial or irreleVII. Has it occurred to you that a question vant, sometimes becomes from subsequent evidence of the greatest materiality and importance? Is not this particularly the case in cross-examination.

VIII. Is the power of the Court to direct the costs of irrelevant evidence to be borne by the party occasioning it, a sufficient check upon the unnecessary consumption of time by immaterial or irrelevant questions?

IX.-If not, can you suggest any and what other check?

matter which he considers is not evidence,
X.-If the examiner declines to take down
appealing from such decision?
should the parties have any and what means of

in the form of a narrative, it were taken down
XI.-If, instead of taking down the evidence
think it probable that in many cases the bulk
in the shape of question and answer, do you
of the evidence would be so great as to create
inordinate expense?

XII. Do you think it important, that in the majority of cases in the Court of Chancery the Court should see the demeanour of the witness?

XIII.-Can you suggest any mode by which the Court may be made acquainted with the demeanour of a witness short of the examination taking place before the Court itself?

XIV. - Would it be practicable, in your opinion, that evidence should be taken orally before the Court itself?

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492

South Sea Company Bill.-Lord St. Leonards' Order and the Law Writers.

decision without a re-examination of the witnesses orally before the Court of Appeal?

XVI.-Would it be safe to entrust the Court of Appeal with a power of deciding a cause upon notes taken by the Judge in the Court below, without the Court of Appeal having the same opportunity of the Judge of seeing the

demeanour of the witnesses?

XVII. If the Court of Appeal were required to hear the evidence again, do you consider that any additional Courts of Appeal must be constituted in order to prevent arrears? If so, what number do you consider would be sufficient for the purpose?

XVIII.-In what manner in that case would the appeal to the House of Lords be secured so as to enable the parties to secure a speedy

decision?

XIX. In case the witnesses who have given evidence in the Court below should be re-examined before the Court of Appeal, would it be practicable to prevent fresh evidence being given to meet particular points in which the party may have failed in the Court below, or from enabling the witnesses to alter their testimony, in order to meet some points on which the Judge of the inferior Court may have founded his decision?

XX. Can you suggest any mode by which the expense of retaining the witnesses in at tendance on the Court until the hearing of the cause in which their evidence is required can be obviated?

XXI.-Is the number of examiners, in your opinion, sufficient for the transaction of the business confided to them with reasonable despatch?

XXII.-If not, in what manner would the defect be best remedied?

1. By the appointment of additional exa

miners?

2. By the appointment of a competent number of special examiners, to be selected in rotation, analogous to the practice now adopted in the case of conveyancing counsel ?

XXIII. Should the cross-examination of a witness upon an affidavit made by him, not to be used at the hearing of the cause, be limited to the matter of the affidavit ?

SOUTH SEA COMPANY BILL.

STOCKHOLDERS' OBJECTIONS.

We understand that a petition has been presented against this Bill on the part of some of the proprietors of the joint-stock of the Company, who decidedly object to the continuance of the establishment for the purpose of administering private trusts, and who are desirous that the proper affairs of the company should be speedily wound up and the assets divided amongst the proprietors.

The following are some of the objections to the Bill on the part of the proprietors :

with a view to the execution of trusts, is a pro"That, among other clauses of the Bill vision to the effect that if any proprietor shall signify his desire to withdraw his capital from the company, he shall not, after giving such notice, be entitled to attend any court of proprietors, notwithstanding he shall not have received his share of the assets of the company, and such other proprietors as shall not desire to withdraw shall thenceforth be interested in all the assets of the company.

"That neither the charter of the company nor any of the Acts of Parliament relating to the company authorise or contemplate the company undertaking the execution of trusts or in any way dealing in such trusts.

"That a Bill to the same effect as the present was introduced into Parliament in the last Session of Parliament by the directors of the company, and was opposed mainly on the ground that it contained provisions authorising the company to undertake the execution of trusts, and the Bill was lost in consequence of such opposition.

"That the proprietors have sustained loss and inconvenience in consequence of the delay occasioned by the Bill being thrown out last Session. And should the Bill be again thrown out, as is probable, in consequence of its again containing provisions relating to trusts, the proprietors will sustain further loss."

The above suggestions may be useful in preparing other petitions from the proprietors who dissented from the proposal of the directors. The Bill has been referred to a Select Committee.

LORD ST. LEONARDS' ORDER AND
THE LAW WRITERS.

We think the members of the Profession must feel much obliged to the Commissioners for affording them an opportunity of stating the result of their practical experience, and suggesting remedies, as well for the advantage of their clients, as convenience to themselves. WE have been requested to extend the pubThis is a great improvement on the former licity of the following letter from Mr. John mode of effecting alterations and improve- Robert Taylor, of Chancery Lane, the Chairments. It is, however, nothing more than was man at the recent meeting of Law Writers, due to the practitioners, and the present course which appeared in The Globe of the 19th is both wise and just.

instant :

"Lord St. Leonards' Order of 10th Nov., 1852, provided that all office copies and other

Lord St. Leonards and the Law Writers.-Review: Cumin's Manual of Civil Law. 493

copies of proceedings and documents shall be counted after the rate of ninety words to the folio, and where the same or any portion thereof shall be written with columns containing figures, in every such case each figure or combination of figures representing a distinct denomination, shall be counted as one word.' Therefore 4,151l. 16s. 9d. would count as three words.

"Under this order, of which the writers have just cause for complaint, the sum of 774,022,638l. 5s. 3d. would count only as three words, whilst under the Stamp Acts, one passed even so recently as 1850, it would count 23 words, and on that amount the stamp duty would be payable,

"The order had not long been passed before grave doubts arose as to its construction, and on the appeal of the Clerk of Records and Writs (A division) to the Vice-Chancellor Sir William Page Wood, it was ordered that the figures 510l. 10s. 6d. or any other similar denomination of figures in the body of a document should be counted as if in words at length; but in documents where columns are used, in those columns only as three words.

ordinary mechanic. For instance, during the long vacation he has little or no employment, and is compelled to subsist on the fruits of his industry in the busy period of the year.

“In making the above remarks, I wish particularly to be understood that they are made with the most profound respect for my Lord St. Leonards, and without the least desire of imputing personal blame to his lordship. He, no doubt, was misled as to the practical operation of the order complained of, and from his lordship's acknowledged kindness of heart, it is believed that when the above facts are placed before him, he will not be slow to recommend the rescinding or modification of even his own order, and thereby confer a great boon on a most deserving class of her Majesty's subjects.

"In conclusion, I would observe that in Manchester, Birmingham, Liverpool, and the provinces, 72 words is the recognised folio; and inasmuch as the practice of our Courts of Law are becoming daily more and more assimilated, why should not the Chancery and Common Law folio be also assimilated to one standard, already recognised by several Acts of Parliament? Trifling as the difference of 18 words in a folio may appear to some, it would lessen the labour of the law writer more than two hours each day, and would be to him a great boon."

"The documents where columns are mostly used are receivership accounts, schedules to answers, states of facts, and costs which require more than ordinary mechanical skill and attention in copying, independent of the time The alteration would also be just and beneoccupied by the writer or stationer in arrang-ficial to the solicitors. ing the columns and ruling the paper; added to which the folios have to be counted and marked on the document in red ink, an additional process known to all practical writers as requiring its passing through the hand three

times.

"It must be apparent, even to unprofessional persons, that if figures in straightforward copying in the body of a document are to be counted as if in words at length, that there can be no reason why figures in columns requiring so much more time, labour, and care to be bestowed upon them, should not be placed in the same category.

NOTICES OF NEW BOOKS.

A Manual of Civil Law; or, Examination
in the Institutes of Justinian: being a
Translation of and Commentary on that
Work, with an introduction on the His-
tory of the Roman Law. BV PATRICK
CUMIN, M.A., of Balliol College, Oxford,
Barrister-at-Law. London: Stevens &
Norton. 1854. Pp. 420.

AMIDST the movement which is taking "There is no doubt but that my Lord St. Leonards was actuated by the best and purest place in both branches of the Profession on motives in promulgating his order, as Lord the subject of Legal Education, Mr. Cunnin Hardwick's order was most shamefully de- has opportunely brought forward a Transparted from in the then Six Clerks' Office and lation of and Commentary on the Institutes the Old Masters' Offices, and the profession of Justinian. It is remarkable, as the and their clients had a right to have the sys- Author observes, that there should exist so tem altered; but unfortunately the order under few elementary works on the Civil Law in discussion has gone from one extreme to the other. There are two things always to be our own language, and his object has been borne in mind-firstly, the paltry pittance to supply this defect in the present volume. formerly paid to the poor penmen, penwomen, and penchildren who did the then badly written office copies, and the uniform complaint of the Profession as to the way they were done. The Profession have only to compare the present office copies with the past, and they will observe a marked improvement in their style of execution. And, secondly, that the law writer's employment is a very precarious one, has, of course, consulted the original Instiand that for him to obtain a decent livelihood tutes of Justinian, the Digest and Code, he should be paid somewhat more than the and particularly the Commentaries of Orto

Mr. Cumin has had recourse to Lagrange's French Manual of Civil Law, which is ordinarily used as a text-book. He observes, that he might have confined his labours to a mere translation, but he found occasional defects and obscurities in the French work which he has endeavoured to remedy. He

494

Review: Cumin's Manual of Civil Law.

lan and Ducauroy; and, considering the class of students for whom the work is designed, Mr. Cumin has wisely presented it in the form of question and answer.

The work is intended both as a translation and commentary. Ample use has been made of Gaius and other authorities, but the arrangement of Justinian has been strictly followed. The more remarkable Latin expressions have been selected and embodied in the work, but the diligent student will probably deem it useful to consult the original.

The Introductory Chapter supplies a clear and concise History of Roman Law, and the various sources from which it was derived. Of these Mr. Cumin notices seven, which are to be found in the Corpus juris Civilis, viz. 1. Leges. 2. Plebiscita. 3. Senatus consulta. 4. The Twelve Tables. 5. Responsa Prudentum. 6. Edicta. 7. Constitutions. Having given a summary of these sources of Roman Law, the Author observes that

so to alter and arrange as to make them accord with the change of manners and the dictates of justice, the object being to exhibit in a syste matic form a complete exposition of Roman Law. One difficulty, however, at once became apparent. There were certain moot points upon which the schools of Sabinus and Proculus held contradictory opinions, to settle these, therefore, Justinian promulgated his Fifty Decisions (Quinquaginta Decisiones). Relieved from this perplexity, Tribonian and his colleagues applied themselves to their task and in the incredibly short space of three years (Dec. A. D. 530-533) published the Digesta or Pandecta (general collection), into which, as the emperor said, omne jus antiquum collatum est. This Digest had the force of law.

"But it occurred to the emperor, that, for a student, the Code and the Digest would be too voluminous; he therefore directed Tribonian, with Theophilus, and Dorotheus, Professors of Law, the one at Constantinople, the other at Berytus to draw up an elementary work, or institutiones of Roman law. This, which followed the well-known work of Gaius, was not simply a book of instruction, for it was declared to have the force of law.

"But Justinian, still unsatisfied with his "Looking to the variety of the sources, the lapse of time, the many revolutions, and the jurists to revise the Code of 529, and to incorlegal reforms, directed Tribonian and four other extraordinary development of the Roman state, we cannot be surprised that in Justinian's time porate the fifty decisions. This revised code the law should be voluminous and perplexed, obtained the force of law on the 17th Nov. 534. (codex repetitæ prælectionis) was published, and or at the necessity felt for arrangement and This is the Code we now have, but it should codification. It must not be supposed, how-be observed that the Code of 529 is the one reever, that immediately before Justinian's time direct reference was made by the Judges to the text itself of the leges, the edicta, the senatusconsulta, and the plebiscita. For the Commentaries of the great jurists upon the text had in fact superseded the authority of the text itself; hence we are justified in saying that from the time of Constantine, the law consisted substantially of these commentaries and the imperial constitutions.

certain Constitutions referred to in it which are ferred to in the Institutes, so that there are not to be found in the Code of 534.

between the years 535 and 564 (A.D.), he pub"Nor was Justinian satisfied even yet, for lished no fewer than 165 novella constitutiones, or new constitutions, which were generally written in Greek.

law;

"Till the reign of Basil the Macedonian, "Now, as early as the year A. D. 306, Gre-A. D. 867, these compilations were considered but he reconstructed the whole system, gorianus, and A. D. 365, Hermogenianus, had made collections of all the imperial constitu- and embodied the law in the form of Basilica. tions; these codes, however, had no legislative authority. But in the year A. D. 438, Theodosius II. published a code for the eastern and western empire, which embraced all the constitutions of the emperors after Constantine, besides which he published certain Novellæ.

"In the year A.D. 528, Justinian appointed a commission of ten jurists, with Tribonian at the head, to draw up a new code, taking those we have mentioned and the Novellæ as the basis. In the month of April 529, their task was completed, and a code was published, by the effect of which all constitutions, not included therein, were abolished, and every constitution it did include was made applicable to every subject of the empire.

"Having arranged the constitutions, Justinian commissioned Tribonian, with sixteen others, to make select extracts from the writings of the elder jurists, which they were authorised

"It is divided into fifty books and seven parts, corresponding to the edict, for it followed Ulpian's work on the same subject. Each book consists of titles, each title of extracts, and each extract of a principium (Pr.) and paragraphs. These extracts which are headed by the name of the jurist or legal author, are called laws (L.) or fragments (Fr.). The digest itself is denoted D. or ff., and is referred to in various ways: thus, the reference to paragraph 6 of the 5th law of the title De Jure Dotium, which is title 3 of the 23rd book, is this: L. 5, § 6, ff. De Jure Dot., or Fr. 5, § 6, D. De Jur Dot. (23, 3), or Fr. 5, § 6, D. 23, 3, or D. 23, 3, 5, § 6. So the Institutes, which are divided into four books, each of which contains several titles, and each title a principium (Pr.) and paragraphs, are referred to thus: Lib. 1, 13 § 1."

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