Law of Evidence—Admissibility of Wife's Evidence against her Husband. 85 as its details, to which we shall hereafter cases referred to are, where the witness was advert, and, for the present, commend this small volume to the attention of our readers. LAW OF EVIDENCE. ADMISSIBILITY OF WIFE'S EVIDENCE AGAINST HER HUSBAND. On the hearing, it was proposed to read the depositions of the plaintiff, a married woman suing by her next friend for an account of property of her own come to the hands of her husband, the principal defendant. On an objection to such evidence, the late Vice-Chancellor Parker observed : not a party, but was examined on behalf of a party. Now, Mrs. Alcock, so far as she is a party, is a competent witness; but, it appears to me, that her incapacity remains, so far as she is to be examined against her husband. The late Act only removes the objection to this evidence, which arises from the fact of the witness being a party; but it leaves every other ground of objection untouched. Similar cases might arise. One that occurs is the case of a His client has a right to say, that his solicitor solicitor, as to confidential communications. shall not be examined as a witness against him, to give confidential communications between them in evidence. It may happen that the solicitor might be suing his client, and might tender himself as a witness against him. I think that this Act does not say, that the objection to the solicitor's evidence as to confidential communications, on the ground that he was the solicitor of the party, is one that can no longer be taken by his client. "Before the recent Act of Parliament, there would have been two objections to this evidence: one, that she was a party to the suit; the other was, that she was tendered as a wit"Again the Act says, that a party shall ness against her husband. Either of these be compellable to give evidence. Suppose a would have been a good objection to the evi- party were required to give evidence as a witdence being received. But now, by the 6 & 7 ness on matters which would expose him to Vict. c. 85, it is provided that a witness shall penalties: I think that the Act leaves it open no longer be excluded on account of incapacity for the party to say, that his evidence would arising from interest; but that Act contained expose him to penalties, and to decline to give a provision, that it should not render competent the evidence. The same principle applies as to any party to any suit, action, or proceeding, a wife. As to the fourth section of the Act, it individually named in the record, nor the hus- provides that nothing herein contained shall band or wife of any such party. So that, after apply to any action, suit, proceeding, or bill in Lord Denman's Act, the two objections re- any Court of Common Law, or in any Ecclesiasti mained as before. Then came the 14 & 15 cal Court, or in either House of Parliament, instiVict. c. 99. The first section of that Act re- tuted in consequence of adultery, or to any ac peals so much of the 6 & 7 Vict. c. 85, as pro- tion for breach of promise of marriage. It vided that that Statute should not render com- may be said that that section contemplates petent any party to any suit, action, or proceed- a particular class of matrimonial suits; and, ing, individually named on the record; but that the husband and wife being excluded in there is nothing in this latter Act to alter the such cases, an argument may be drawn from incapacity of a husband or wife. The second that circumstance, that there was no more exclause provides as follows:-that on the trial tensive exclusion intended by the Legislature of any issue joined, or of any matter or ques- than is provided by that clause. I think that tion, or on any inquiry arising in any suit, ac-view cannot be sustained. That section of the tion, or other proceeding in any Court of Justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding.' "A question has arisen upon that section, whether the Act making the parties competent witnesses, a husband or wife is a competent witness; and it has been decided by very high authority at common law, that their incapacity remains, notwithstanding that Act. It does not appear to me, that any case has been decided like the present, in which the witness herself is a party to the suit, and is examined in that character against her husband. The Act seems to me to refer to the subject matter of disputes of a certain kind; disputes, in which it is thought, for other reasons, not fit that the parties themselves should be examined. That section is open to the same observation as was made on the third section, which says that husband and wife shall not be competent or compellable to give evidence against one another in criminal matters; and it has been considered in one case, that, in consequence of that section, the former section was to receive a more extended construction, and that it was only in criminal matters that they were not to give evidence against each other. The Court of Queen's Bench,' however, took a different view, and considered that the third section was introduced from excessive caution, and that it does not control the meaning of the former section. It appears to me, therefore, that there 86 Reputed Ownership of Bankrupt.-Liverpool Law Society. is nothing in the Statutes to take away the incapacity of Mrs. Alcock, arising from the fact of her being a married woman." Alcock v. Al cock. 5 De G. & S. 671. no reason why we should not give such effect to the 125th section; for I cannot find any expressed intention on the part of the Legislature to destroy that relation which existed under former Statutes; and REPUTED OWNERSHIP OF BANK- it is my opinion, and that of the other RUPT. order under s. 125.-RELATION BACK. THE effect of the 125th section of the 12 & 13 Vict. c. 106, that "if any bankrupt, at the time he becomes bankrupt,' have in his possession goods, &c., "the Court shall have power to order the same to be sold and disposed of," &c., is (per Pollock, C. B.), "to empower the Court of Bankruptcy to make an order with reference to the goods which were in the possession of the bankrupt at the time he became bankrupt; and when the order has been made, it seems to me that we should be introducing a very nice distinction, and one which the Legislature never contemplated, if we were to hold that the order has not the effect of the old assignment, in not having relation back to the act of bankruptcy, but merely to the time when the order itself was made." members of the Court, that, when the Commissioner made the order disposing of the property in question by sale, such disposition was valid, and had relation back to the time of the act of bankruptcy, unless there be some clause in this Statute by which the goods are protected. But there is no pretence for saying that there is any such section is to be construed in conformity clause. I therefore think, that the 125th with the preceding Statutes upon the same back to the time of the act of bankruptcy.” subject, and that the order has relation Heslop v. Baker, 8 Exch. R. 411. LIVERPOOL LAW SOCIETY. ANNUAL REPORT OF THE COMMITTEE. 1st November, 1853. THE Committee have much satisfaction in reporting, that since the last Annual Meeting, the Society has continued to increase in numbers, nine gentlemen having been admitted members; namely, Mr. Frederick William Howard, Mr. William Clare, Mr. Frederick William M'Gee, Mr. William Henry Moore, James Thomson, Mr. Robert Paterson, Mr. Mr. Henry Lewis Gregory, Mr. Benjamin Joseph J. Ritson, and Mr. Thomas Rymer. The Committee have to report the death of one member, Mr. William Holt, and the retirement of three other members; namely, Mr. Wason, Mr. Howard, and Mr. Reginald A. Parker, in consequence of changes of residence. The Society now consists of 118 members, of whom 33 have been admitted since the alteration made in the rule for admission in 1851. The Committee have devoted much time Parke, B. "That 125th section is copied (although not exactly verbatim) from the 21 Jac. 1, c. 19, s. 11; and I think that a clause in one of a series of Statutes upon the same matter ought to be construed, as far as possible, in conformity with the general intention of the Legislature as expressed in former Acts. The section to which I have referred in the Statute of James, no doubt, contained the relation back to the act of bankruptcy. The 13 Eliz. c. 7, which was the preceding Statute upon the same subject, and which regulated the title of the Commissioners appointed by the Lord Chancellor to dispose of the effects of the bankrupt, and made every direction, bargain, sale, and other thing done by them, effectual in law to all intents and purposes against the bankrupt, and against all other persons claiming under him, had the same relation back to the act of bankruptcy. I think that the order of the Commissioner has precisely the same effect, with respect to its relation back, as the title of the Commissioners had under the 21 Jac. 1, c. 19, by which they were Under the former Act, the practice of the empowered to dispose of goods in the pos-milated (as nearly as possible) to that of the Liverpool Court of Passage has been assimisession and reputed ownership of the bankrupt as fully as they could of his other property; and that no subsequent act, either of the bankrupt or of the reputed owner, could defeat their title. There is and attention to the various Bills connected with the administration of Justice, and the Law of Real Property, which have been introduced into the Houses of Parliament during the past year. Among the Bills which have passed, they Court of Passage Procedure Act," and to the may, in particular, refer to the "Liverpool "Lancashire Court of Chancery Act," both of which are measures calculated to be of great advantage, as well to the Profession as to the Public. Superior Courts at Westminster; and the Court possesses increased and admirable facilities, for the cheap and speedy administration of Justice. Under the Lancashire Court of Chancery Liverpool Law Society-Annual Report of the Committee. 87 as to professional acquirements before admission upon the rolls, ought to be much more stringent and extensive than under the existing practice. It may then be reasonably expected that men, who have gone through both these the promise of future respectability and public ordeals, will at least enter the Profession with usefulness. Act, and the orders made by the Vice-Chancellor in pursuance thereof, the procedure has during the past year, a spirit of inquiry has The Committee are happy to observe, that been greatly simplified, and the improved prac- been awakened, as to the best means of raising tice, introduced of late years into the High the professional status. At a meeting of the Court of Chancery, adopted, and the utility of Society, called to take into consideration a the local Court much extended. As now con- communication from the Secretary of the Mestituted, the Court will prove a valuable book tropolitan and Provincial Law Association, upon to the Public of the district, of which suitors are the subject of improved education, various sugalready beginning to avail themselves, in cases gestions were made and discussed, and a resoof administration of estates, and other matters lution adopted, which has since been published of equity jurisdiction. The appointment of a Dis- in the Annual Report of the Association. The trict Registrar in Liverpool, opens to the Pro- Committee are fully convinced, that no meafession practising in the Court, the opportunity sure will so much tend to elevate the Profession of personally conducting the causes of their as a body, as a well considered application of clients, and thereby of bringing them to a educational tests. The production of certifispeedy issue, and at an expense so moderate, cates of proficiency in certain branches of geas to allow of the decision of many disputedneral education, to be obtained from constituted questions, hitherto compromised out of Court, examiners, ought to be made a necessary preor abandoned from fear of the disproportionate liminary to entering into articles of clerkship; cost of litigation. The Committee look forward, and at the end of the service, the examination as the business increases, to further reduction in the scale of Court fees at present payable. In the meantime, so much has been already done for the improvement of the Court, that the Committee feel bound to bring the subject prominently before the Society. thanks are due to the able and zealous ViceTheir best Chancellor, who has received with polite attention all suggestions offered to him by the Committees of the Local Societies, and other of Parliament, originated and forwarded for The Committee have, during the last Session practitioners, and acted throughout, with an presentation to the House of Commons, a peearnest determination to promote and extend tition from attorneys and solicitors practising the efficiency of the Court over which he pre- in Liverpool, for a repeal of the Annual Certifisides. The Committee desire also to express cate Duty; uniting in this movement with their sense of the exertions of their President, other societies and practitioners, in their efforts Mr. Wareing, and of Mr. Lowndes, and Mr. to obtain relief from that unjust tax. The reHaigh, who acted as a Sub-Committee in con-sult of the struggle is well known. The Chansidering the various clauses of the Bill, and in cellor of the Exchequer was, in the end, supthe conferences with the Vice-Chancellor. The members of the Society are aware, that fusal to repeal the tax, and in his own proposal ported by the House of Commons in his reanother attempt was made during the last of a small reduction in the amount of it. ConSession, to carry through Parliament, a Bill sidering the large measure of financial reform for the establishment of a Metropolitan Regis- brought forward by the Chancellor, and the tration of Assurances of Real Property. The promises for the future, the Committee preBill introduced was that known as Lord Camp-sume that the general feeling of the Profession bell's, but so far altered, that the " Plan" scheme was omitted. At a Special ment at the result. A tax which could not be Map or will not be one of much surprise or disappointMeeting of the Society to consider the Bill, it defended on principle, is retained for expediwas resolved, that a petition against the Bill ency. should be prepared, and presented on behalf of the Society, which was accordingly done. Considerable opposition to the Bill was manifested throughout the whole of England, and it was, after passing the House of Lords, referred to a Select Committee in the Commons. The Committee now direct attention to the subject, anticipating that a Registration Bill will probably be introduced in every future Session. The subject is well worthy of the consideration of every member of the Society, especially with reference to the question, whether district registries would not afford all the proposed advantages, without some of the acknowledged objections to the metropolitan scheme. though the general opinion of the Profession Alappears to be, at present, against registration, yet it must not be forgotten, that the system has many advocates, in both branches of the Professsion and among the Public. 66 subject, without recording their deep sense of the past year, an attorney practising in Liver- present to the Council of the Incorporated Law urging upon the members of the Society, and F 5 88 Practice an Foreclosure Claims.-London Commissioners to Administer Oaths. the importance of supporting and acting in con- gagor's creditors on judgments duly registered, junction with the Incorporated Law Society, and the mortgagor: a decree was made for an and the Metropolitan and Provincial Law As-immediate foreclosure against the first and se sociation. The terms of admission to both Societies are moderate, and they offer the ad-cond mortgagees, and the ordinary decree vantages of an organized system in which alone against all the judgment creditors, treating will be found strength, to carry out the good them as if they formed one incumbrancer, and and useful purposes which law societies have against the mortgagor. Stead v. Banks, 5 De in view, in the promotion of honourable prac- G. & S. 560. tice, and in the protection of their status as professional advisers of the public against the continued attacks which are made every Ses- LONDON COMMISSIONERS TO ADsion by prejudiced persons, who, having risen to political power from their connexion with the Bar, appear to use it for the introduction of provisions into every Law Bill, to the prejudice of the attorney and solicitor. The accounts of the treasurer show a balance of 641. 12s. 6d. to the credit of the Society. The members of the Committee who go out in rotation are Mr. Webster, Mr. Snowball, Mr. Thornely, Mr. Bell, and Mr. Banner. PRACTICE ON FORECLOSURE PARTIES. MORTGAGOR'S CREDITORS UNDER ON a claim by the first mortgagee against the mortgagor, and the assignees of the equity of redemption in trust for certain scheduled creditors, under a deed which the creditors had executed, containing a power for the trustees to release the equity of redemption without the concurrence of such creditors: Held, that the creditors were unnecessary parties. Thomas v. Dunning, 5 De G. & S. 618. ISSUE AS TO NOTICE OF SECOND MORT- At the hearing of a claim by a mortgagee against a second mortgagee and the mortgagors, an issue was directed on the question, whether the claimant had received notice of the second mortgage before he advanced a further sum, which he claimed to tack. The second mortgagee, who was to be the plaintiff therein adandoned the issue: Held, that the claimant should give notice of motion to take the issue pro confesso, upon which the, trial of the issue would be dispensed with and the claim would be in the same situation as if the issue had been tried and found in favour of the claimant. Hartland v. Dancocks, 5 De G. & S. 561. MINISTER OATHS. FORMS OF PETITION, TESTIMONIALS, AND NOTICE. We the undersigned Solicitors, who have practised for ten years last past, and upwards, certify that we know and are acquainted with Mr. of and believe him to be a respectable Solicitor, and well qualified for the office of a Changing Venue.-County Courts.-Notes of the Week. 89 London Commissioner for administering Oaths fession by reason of the refusal of some of the an Chancery. Dated the day of 1853. County Court Judges peremptorily, and not very civilly, to hear a cleark. It has not unfrequently happened that both A Notice to the following purport is to be myself and partners have been obliged to attend given to the Registrar of Solicitors : the Superior Courts, and therefore under the necessity of delegating an intelligent clerk, who has been refused to be heard, and rudely assailed with "stand down," "stand down." You say, how is a Judge to ascertain the bona fide employment of the clerks? Where there is a will there is a way. Let a written authority be given by the principal to one or It will be convenient, on giving this notice, two of the principal clerks; let it be signed. to take the petition and testimonials to the Re-witnessed, and registered in each County Court gistrar, at the Law Society's Hall, in Chancery might be remedied. Surely, if the Judges of in London and the vicinity. Thus the evil Lane, between the hours of 10 and 4, and he the Superior Courts hear clerks at Chambers, will indorse a certificate of the service of the it ought not to be infra dig. for the Judges of notice. On the expiration of the 21 days, the the Inferior Courts. Trusting that the idea applicant can apply at the office of the Lord Chancellor's principal Secretary, in Quality Court, Chancery Lane, and obtain the Form of Commission on which a 20s. stamp is to be impressed. No other fee is payable. CHANGING VENUE. The Committee of Judges to whom the question was referred as to the practice to be adopted in consequence of Rule No. 18, in the Rules of Practice of Hilary Term, 1853, have to report, First, that in their opinion it is more convenient as a general Rule, that the application to change the venue by rule or summons may be made before issue joined, provided that this should not prejudice either party from applying after issue is joined to lay the venue in another county, if it shall appear that it may be more conveniently tried in such county. Secondly, that a defendant, in his affidavit to obtain a rule nisi to change the venue, or in support of summons for that purpose before issued joined, should state all the circumstances on which he means to rely as the ground for the change of venue; but that he may, if he pleases, rely only on the fact that the cause of action arose in the county to which he seeks to have the venue changed, which ground shall be deemed sufficient, unless the plaintiff shows that the cause may be more conveniently tried in the county in which it was originally laid, or other good reason why the venue should not be changed. (Signed) J. PARKE. WM. WIGHTMAN. COUNTY COURTS. ATTENDANCE OF ATTORNEYS' CLERKS. As a professional man of some experience, I am enabled to bear testimony to the great and incessant inconvenience sustained by the Pro will be carried out. AMICUS. NOTES OF THE WEEK. FURTHER PROROGATION OF PARLIAMENT. Ir is this day (25th November) ordered by her Majesty in Council, that the Parliament, which stands prorogued to Tuesday, the 29th day of November inst., be further prorogued to Tuesday, the 3rd day of January next. COMMISSIONERS FOR REFORMING THE LAW The Queen has been pleased to appoint the Right Hon. Sir John Romilly, Knight, Master of the Rolls of her Majesty's High Court of Chancery; The Right Hon. Sir John Jervis, Knight, Chief Justice of her Majesty's Court of Common Pleas; The Right Hon. Sir Edward Ryan, Knight; Charles Hay Cameron, Esq.; John M'Pherson M'Leod, Esq.; John Abraham Francis Hawkins, Esq.; Thomas Flower Ellis, Esq.; and Robert Lowe, Esq., to be her Majesty's Commissioners in England to examine and consider the reform of the Judicial Establishments, Judicial Procedure, and Laws of India. SCOTCH LAW APFOINTMENT. The Queen has been pleased to appoint David Mure, Esq., Advocate to be Sheriff of the Shire or Sheriffdom of Perth, in the room of James Craufurd, Esq., her Majesty's Solicitor-General for Scotland. ADMIRALTY REGISTRAR. The Queen has been pleased to direct letters patent to be passed under the Great Seal, for appointing Henry Cadogan Rothery. Esq., M. A., Registrar of the High Court of Admiralty of England, to be Registrar of her Majesty in Ecclesiastical and Maritime Causes, in the room of Henry Birchfield Swabey, Esq., resigned.-From the London Gazette of 29th November. |