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Falconer, William Graham, Middlesborough, Lithographer. Nov 25 at 3 at offices of Pick, Henry, Southwick, Northampton, Farmer. Nov 25 at 10 at offices of Law, St Lewis, Zetland rd, Middlesborough
Mary's pl, Stamford Fielding, John, Crimble, Huddersfield, Joiner. Nov 28 at 10.30 at offices of Ainley and Pooley, Alfred, Liverpool, out of business. Nov 25 at 3 at offices of Gibson and Bolland, Hall, New st, Huddersfield
South John st, Liverpool. Copeman Francis, Robert, King's Lynn, Norfolk, Outfitter. Nov 26 at 10.12 at offices of Hill, Pratt, Francis' John, Cheltenham, Colliery Agent. Nov 28 at 11 at offices of Clark, St Nicholas st, Ipswich
Regent st, Cheltenham Franks, George Henry, Guisborough, York, Cabinet Maker. Nov 26 at 11 at offices of Quayle, Alfred, Hanley, Stafford, Clogger. Nov 25 at 3 at offices of Llewellyn and Draper, Finkle st, Stockton-on-Tees
Ackrill, Picadilly st, Tunstall Fryer, Peter, Mount Pleasant, Hastings, Builder. Nov 24 at 3 at offices of Miller and Rendell, Joseph, John st, Shacklewell, Contractor. Nov 29 at 3 at offices of Andrews Miller, Sherborne lane
and Mason, Ironmonger lane, Cheapside. Barratt, John st, Bedford row Fulford, Fanny, Thomas Fulford, and Edwin Fulford, West Dean, Wilts, Farmers. Ruggles, John, Brentwood, Essex, Beer Retailer, Nov 25 at 3 at offices of Noton, Nov 28 at 2 at offices of Nodder and Gater, City chmbrs, High st, Salisbury
Lombard st Garratt, Samuel, Lincoln, Licensed Victualler. Nov 28 at 11 at offices of Swan and Saunders, John, 'Tillington, Sussex, Farmer, Nov 24 at 11 at Half Moon Inn, Petworth. Bourne, Silver st, Lincoln
Albery and Lucas, Midhurst Gething, Henry, Tirpenry, Swansea, Chemical Manufacturer. Nov 24 at 3 at offices of Shayler, David, Oxford, Dairyman. Nov 30 at 11 at offices of Whitfield, Michael's Evans and Davies, Wind st, Swansea
chmbrs, Oxford Gibbons, John Thomas, Great Marlow, Bucks, Baker. Noy 30 at 3 at Bear Hotel, Simpson, Edward, Newcastle-upon-Tyne, Licensed Victualler. Nov 24 at 11 at offices Maidenhead. Spender, Maidenhead
of Alcock and Routledge, Frederick Lodge, St Thoma2 st, Sunderland Gill, Charles, Coates, Isle of Ely, Cambridge, Cordwainer. Dec 2 at 12 at offices of Smith,
Joseph, Camerton, Cumberland, Blacksmith. Nov 29 at 11.30 at offices of Hayton Reeve, High causeway, Whittlesey
and Simpson, Cockermouth. Hayton and Simpson, Cockermouth Ginger, Thomas, Mill Hill, Hendon, Carpenter. Nov 28 at 2 at 17, Essex st, Strand. Smith, Timothy, South Normanton, Derby, Grocer, Nov 28 at 3 at oflices of Jones and Rogers
Middleton, Gluman gate, Chesterfield Gough, Edward, Clifton, Bristol, out of business. Nov 29 at 12 at offices of Anstey,
Smith, William, Idle, York, Draper's Assistant. Nov 28 at 4 at offices of Atkinson and John st, Bristol. Evans
Wilson, Tyrrell so, Bradford Gough, John Samson, Accrington, Lancaster, Confectioner. Nov 28 at 3 at Mechanics Smith, William Charles, jun, Old Kent rd, Provision Merchant. Nov 23 at 4 at Victoria Institute, Willow st, Accrington. Haworth and Broughton, Accrington
House, Trinity st, Southwark. Bordman and Co Hargreaves, William Henry, Bradford, York, Plasterer. Nov 28 at 3 at offices of Berry
Smith, William Fawcett, Weldon Wansford, Northampton, Physician. Nov 29 at 12 and Robinson, Charles st, Bradford
at offices of Baylis and Pearce, Church ct chmbrs, Old Jewry Hart, Samuel, Wootton Bassett, Wilts, Ale Merchant. Nov 29 at 1 at Queen's Hotel,
Southwell, John Albert, Wisbech St Peter, Crmbridge, Tailor. Nov 25 at 1 at offices of Swindon Cooke, Gloucester
Fraser and Wright, Old Market st, Wisbech Heath, Richard, Brighton, Commercial Traveller. Dec 2 at 3 at offices of Goodman,
Stephens, Albert Arthur, Stanley rd, Ball's pond rd, Cab Driver. Nov 24 at 2 at Mason's North st, Brighton
Hall Tavern, Mason's avenue. Bassett, Fenwick rd, East Dulwich Hedges, Joseph, Virginia row, Bethnal Green, Manager. Nov 23 at 12 at 40, Bishops
Stevens, William, Hythe, Kent, Boot Maker. Nov 25 at 12 at Guildhall Coffeehouse,
Carder, Dover gate Without. Archer, Brayard rd, Peckham Hill, George, Breadsall, Derby, Brickmaker. Dec 1 at 3 at offices of Davenport Norton,
Swatman, Emily Norton, St Leonard's-on-Sea, School Proprietress. Nov 25 at 12 at St James's st, Derby
offices of Phillips and Cheeseman, Havelock rd, Hastings Hothersall, Richard, Preston, Lancaster, Butcher. Nov 28 at 3 at office of Clarke, Lune
Thompson, John, and Nicholas Thompson, Hayton, Lancaster, Joiners. Nov 28 at 2.30
at offices of Artindale and Artindale, Hargreaves st, Burnley st, Preston Houston, Andrew, Newport, Isle of Wight, Travelling Draper. Nov 28 at 2 at offices of
Tinson, Henry, St John's st, West Smithfield, Packing Case Maker. Dec 5 at 2 at office Edmonds and Co, Cheapside. Eldridge, Jun, Newport
of Scott, College hill, Cannon st Howe, William Best, Torquay, Devon, Milliner. Nov 28 at 3 at the Castle Hotel, Castle
Todd, Thomas, Howdon-on-Tyne, Northumberland, out of business. Nov 30 at 2at
offices of Moody, Claydon st, Newcastle-on-Tyne st, Exeter. Orchard, Exeter Hughes, Albert. Northwich, Chester, Publican.
Tundard, Esau, Kirton, nr Boston, Lincoln, Plumber. Nov 26 at 12-30 at offices of
Dec 1 at 3 at offices of Cheshire and Son, Northwich
Bailes, Church lane, Boston Hurst, Thomas, Denton, Lancaster, Clothier. Dec 1 at 3 at Merchants' Hotel, Oldham
Wade, William, Crewe, Chester, Builder. Dec 2 at 1.30 at Brunswick Hotel, Nantwich st, Manchester. Drinkwater, Hyde
rd, Crewe. Warburton, Crewe
Wainwright, John, Birmingham, Coal Dealer. Nov 29 at 11 at offices of Jackson and James, William Henry, and Sydney Orford, Birmingham, Wholesale Warehousemen. Sharpe, High st, West Bromwich Nov 28 at 1 at offices of Wright and Marshall, New st, Birmingham
Wakmaen, Joseph John, Wolverhampton, Stafford, Licensed Victualler. Nov 30 at 11 Johnson, James, Sooning, Corn Merchant. Nov 25 at 11 at Wheatsheaf Hotel, Reading. at offices of Rhodes, Queen st, Wolverhampton Creed
Wall, James, Lincoln, Cigar Merchant. Dec 1 at 11 at offices of Andrew, Midland Jones, Mary, David Owen Jones, William Edward Jones, Towyn, Merioneth, General Temperance bldgs, Silver st, Lincoln
Furniture Dealers. Nov 21 at 10 at offices of Howell and Evans, Maengwyn st, Watson, Pilfold Fletcher, Leeds, Dealer in Fine Arts. Nov 25 at 3 at offices of Austin, Machynlleth
Victoria bldgs, Park lane, Leeds Keep, Henry, Newington causeway, Hosier. Dec 1 at 3 at offices of Dear, Gresham st Weaver, George, Farmborough, Somerset, Farmer. Nov 26 at 12 at offices of Wilton Key, Charles, Corely, Salop, Collier. Nov 23 at 3 at offices of Thursfield, Swan st, and Sons, Westgate bldgs, Bath Kidderminster
Whipps, William John, Princes sq, St George's-in-the-East, Soap Manufacturer. Dec Lamb, Sam, Bradford, Potato Salesman. Nov 26 at 12 at offices of Watson and Dickons, Youens, James, High Wycombe, Buckingham, Grocer. Dec 5 at 1 at offices of Clarke,
7 at 3 at offices of Macarthur and Son, John st, Bedford row Cheapside, Bradford Lawson, Anthony, Leeds, Furnishing Salesman. Dec 1 at 3 at offices of Shaw, Com.
Easton st, High Wycombe mercial st, Leeds Lloyd, David, Carmarthen, Draper. Nov 28 at 10 30 at offices of White, King st, Carmarthen
Exeter. Brown, Exeter
43 side. Thompson, Stockton-on-Tees
PRINCIPAL AND SUB-AGENT.......... 36 Re Hodson's Trade Mark
43 Mapleston, Charles, and Charles Frederick Mapleston, Coningsby, Lincoln. Nov 25 at
THE PRACTICAL EFFECT OF THE CON
Ex parte Rolph.................... 43 11 at office of Harrison, Bank st, Lincoln
37 Werdermann y, The Société Générale RECENT DECISIONS
39 Marsh, William, Bentley, nr Doncaster, Land Agent. Dec 5 at 3 at office of Gill and
39 Hall, Wakefield
Emley v. Davidson ................ Marshall, Stephen, St Albans, Grocer. Nov 28 at 3 at George Hotel, St Albans. Wells,
39 JUDGES' CHAMBERS ................ St Albans
THE INTERPRETATION OF THE Cor.
45 office of Richardson, Barnard Castle. Draper, Stockton-on-Tees
CASES OF TIE WEEK
LEGAL APPOINTMENTS Morse, George, Begelly, Pembroke, Builder. Nov 21 at 2 at Rutzen Arms Hotel, Nar.
Heatly v. Newton
16 berth. Griffiths, Carmarthen
In re The Silkstone and Dodworth LAW STUDENTS' JOURNAL..... Morsman, Walter George, Gosport, Grocer. Nov 28 at 2'10 at office of Edmonds and
Coal and Iron Company
42 THE LANCASTER CHANCERY COURT .. 47
42 Collyer v. Isaacs
CREDITORS' CLAIMS .............
47 Co, Cheapside. King, Portsea
Ex parte Graves Moss, George, Norton-in-the-Moors, Stafford, Joiner. Nov 25 at 11 at offices of James,
42 LEGAL NEWS
48 Nelson sq, Newcastle-under-Lyne
Elton v. Curteis..
COURT PAPERS ......................
Ringer to Thompson Nicklin, Francis, Stone, Stafford, Innkeeper. Nov 28 at 11 at offices of Ashmall,
LONDON GAZETTES, &C., &C........... 48 Albion st, Hanley
In re Trevelyan, deceased, Perceval
43 Palmer, Henry, Landel's rd, East Dulwich, Mason. Dec 1 at 3 at office of Peckham and
Co, Knight Rider st, Doctors' Commons
NOTICES TO CORRESPONDENTS.-All communications intended for publication Pearsall, John, Birmingham, Brassfounder. Nov 28 at 12 at offices of Haigh, Waterloo in the SOLICITORS' JOURNAL must be authenticated by the name and address of st, Birmingham
PARTRIDGE & COOPER,
Law Copying and Engrossing.
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LAW AND GENERAL STATIONERS,
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LITHOGRAPHY. In tin packets at 1s. 6d., 38., 5s, 6d., &c., by Chemists for inserting particulars in their FREE MONTHLY ABSTRACTS, BRIEFS, PETITIONS, DRAFTS, and Grocers.
REGISTER of ESTATES, TOWN and COUNTRY MINUTES OF EVIDENCE, Lithographed Charities on Special Terms by the Sole Proprietors, HOUSES, Furnished or Unfurnished, or for Sale, to be
at reduced prices. H. SCHWEITZER & CO, 10, Adam-street, London, W.C.
had GRATIS at their Offices, or post-free for two stamps. PLANS OF ESTATES, SPÈCIFICATIONS, BUILD. Published on the 1st of the month, and particulars for ING SOCIETIES' DEEDS, LEASES, &c., Lithographed
insertion should be sent not later than five days previous with accuracy and dispatch. PROSSER & CO., Barrelled Oyster to end of preceding month.
and Shell Fish Warehouse, late of Temple Bar, Valuations for Probate and Transfer. Surveys. PARCHMENT AND LEGAL PAPERS REMOVED to 84, Chancery-lane. Estate and Auction Offices, 8, Pall Mall East, s.w.
Samples and Catalogues sent post-free,
LONDON, NOVEMBER 26, 1881.
sets of the papers specified to be delivered for the use of the court one week before an appeal is likely to appear in the daily court paper.
WE HAVE AUTHORITY to state that no date has yet been fixed THE MEETING of the Incorporated Law Society, last Friday, for the meeting of the Rule Committee of Judges to consider the arrived at the conclusion indicated by us last week. A committee proposed changes in legal procedure. The meeting is not likely of members of the society was appointed to consider the recomto take place for at least a fortnight, or to precede the annual mendations of the Legal Procedure Committee, and to report to Council of Judges, the date of which is not yet settled.
the council with the view of further considering the subject at an adjourned meeting of the society. The names of the members of
the committee will certainly enlist the confidence of the profession, IT IS THE INTENTION of the President of the Board of Trade and the addition of some members of the council will enable the to introduce next session a Bill to consolidate the enactments on committee to learn the grounds on which the suggestions already the bankruptcy law.
circulated were adopted. Some objection was raised to the course taken by the council in printing these suggestions, and we cannot
help thinking that it would have been wiser to have kept them in MR. JUSTICE CHITTY will commence the hearing of witness petto until the result of the deliberations of the committee appointed actions on Tuesday next.
by the meeting had been ascertained. Notwithstanding the explanations of the president it still remains matter of doubt whether
the council bave pledged themselves to the red letter opinions, or IT WAS ANNOUNCED on Wednesday in the Court of Appeal at whether they are merely suggestions to be re-considered after the Lincoln's-inn that in future all admiralty appeals will be heard by report of the committee appointed last Friday has been received. the Westminster branch of the court.
It is very much to be hoped that the latter is the intention.
THE ARRANGEMENT announced in the daily papers that appeals THE MAIN SUGGESTION of the Council of the Incorporated Law from the Master of the Rolls would be taken at Lincoln's-inn on Society on the Procedure Committee's report relates to the quesMonday and Tuesday next week has been altered. His lordship tion of appeal, which has been fully treated in the articles which will preside in the Court of Appeal at Lincoln's-inn on those have appeared in these columns. We need only say upon this that days as usual.
the alterations which the council propose carry out the views which
we have advocated. Among the most important of the other sugTAE ORDER which has been issued under the Courts of Justice gestions of the council are those relating to shorthand notes and (Salaries and Funds) Act, 1869, affects the position of certain the summary procedure on bills of exchange. As to the former, clerks in the several offices and departments of the Chancery
we concur with the council in thinking that the recommendation Division. Under the order, certain clerks, specified by name in of the Procedure Committee goes beyond what is reasonable in the schedule, will, in future, be classified, as therein shown, as
burdening the parties in all events and in all cases with the cost of first, second, and third class clerks, in accordance with the prac- note and transcript. What the court needs for its guidance should be tice now in vogue. The principal provision is that which makes paid for by the public; what the parties think necessary for themall existing and future clerks in the Chancery Division inter- selves they should themselves pay for; and the ultimate incidents changeable and liable to be transferred to any office or department of that burden should be determined like other questions of costs. in the same Division.
As to the summary procedure on bills of exchange, it seems to have been abolished under the notion that the same remedy was
afforded by order 14, but in fact the new remedy is worse than the WE UNDERSTAND that at a meeting of the solicitors practising
old in respect both of delay and of cost-in cost because judg
ment cannot, in any event, be obtained without an application, and majority, that in future sales the present practice in Bristol and its in delay because the application will frequently extend the period neighbourhood of charging purchasers at sales of property by beyond the twelve days allowed under the 18 & 19 Vict
. c. 67. auction with solicitors' contract fees be abandoned, and that, in the There seems, therefore, to be good reason for the suggestion of the opinion of the meeting, auctioneers should be paid by the persons committee do not bear the marks of any very mature consideration.
council. For the rest, their observations on the proposals of the employing them. This is a step in the right direction, and will, Had the observations, and the implied adoption of the proposals we hope, be generally followed throughout the West of England, where not altered, been the result of a careful examination by a wherever the present objectionable practice of charging, pur committee appointed for that purpose, it would have added weight chasers at auctions with solicitors' or auctioneers' fees prevails.
to those proposals as they stand. As it is, we cannot consider that
the examination we propose to make of the suggestions of the SOME TIME AGO we drew attention to the inconvenience caused Procedure Committee will be burdened by any greater presumpin the Court of Appeal by the non-delivery of the requisite papers tion in their favour than arises from their adoption by the com
. for the use of the judges on the hearing of an appeal, and we pointed out the propriety of solicitors delivering in all cases three sets of papers for the use of the judges. We believe that the late Lord Justice JAMES considered that, as the Court of Appeal had other column by, or on behalf of, a highly respectable ghost.
IT IS VERY DIFFICULT to resist the plaintive appeal made in anno power to make rules, that court could not properly lay down WALTER DE ALDEHAM wants to know, now that the Court of any regulation on this subject. The result of the absence of any Exchequer is abolished, where his successor in the holding of such regulations bas been constant inconvenience. The Master of certain lands in Salop is to render the service by which he holds the the Rolls has now taken the matter in hand, and a notice has been lands—viz., the payment to the King yearly at his Exchequer of two issued (which will be found in another column) requiring three / knives? It is conceivable that the Order in Council for the abolition
of the Common Pleas and Exchequer, of December 16 last—which extent we think the writer exaggerates the contrast between the provides that “all proceedings which have heretofore, by any law qualifications of a common lawyer and an equity man as a judge or custom other than such Acts of Parliament, rules, and orders as in criminal cases. It does not necessarily happen that the common aforesaid [ie, the Judicature Acts and Orders ), been taken or lawyer appointed to the bench has any but a slight familiarity had respectively in the ... Exchequer Division of the said with the practice in criminal courts. He generally has been long High Court of Justice, be from and after the time when this order withdrawn from the Crown court, and, indeed, in some cases he shall take effect, taken and had in the Queen's Bench Division may never have practised in that court. But it is nevertheless of the said High Court of Justice”—may not have come to the true that the nature of his business under the old system of proknowledge of our ghostly correspondent. But even if it it has, it is cedure formed a much better education for the work of a criminal certainly open to him to say that since it was thought necessary, court than that of an equity counsel. The work of an equity counsel, notwithstanding this order, to provide in the Judicature Act of under the old system, could hardly, indeed, be said to form any the last session for the case of the presentation of the education for the functions of a criminal judge. Even now that Lord Mayor and the proceedings with regard to the nomination the practice of the Chancery Division with regard to evidence has of the sheriffs, it must be equally necessary to provide by express been considerably altered, and viva voce evidence is more common legislation for the case of the successor of our correspondent, and there, the character of the cases and of the transactions involved that of the many other persons who hold by similar tenures. in them is not so well calculated to prepare a man for dealing There certainly seems to have been an oversight, but we think our
with criminal cases as that of many of the transactions with correspondent's successor need not be very anxious about the which the Common Law Division usually deals. Then, again, of results. Let him pay his knives to the proper officer at the course, in most cases the common lawyer has, at any rate at the Central Office, who will, doubtless, gladly accept them. Then we beginning of his career, some experience of the criminal courts, apprehend that the successor will be safe from fear of forfeiture, and even after the lapse of a good many years the knowledge so on the principle expounded by Lord Coke, who says (Co. Lit. acquired is speedily revivified. Agreeing, as we do, with the 212b), the place is but a circumstance, and, therefore, if the author of the article in question to a very great extent, and thinkobligee receiveth (the money] at any other place, it is sufficient, ing it somewhat of a scandal that a judge entirely unversed in though he be not bound to receive it at any other place." See criminal procedure should be sent to deal with the lives and also, per Powell, B., in Bath and Montague's case (3 Ch. liberties of prisoners—just as we think it somewhat of a scandal Cas. 68).
that common law judges, wholly unversed in the procedure of
equity, should be pitchforked into the position of judges in the THE QUESTION has frequently been mooted, how far counsel Chancery Division to deal with questions of trusts and winding defending a prisoner is at liberty to make, as the mouthpiece of up of companies
, with which they are wholly unfamiliar-we the prisoner, statements of facts of which there is no evidence. nevertheless feel considerable doubt whether complaints on the
The dual system of common law and After some divergence of opinion, we believe that the practice subject are of any use. (pace Lord COLERIDGE) is at present settled in favour of his being equity, does practically, to a large extent and for many purposes. allowed to do so. The objections to this practice have been dis- clear whether it is, or ought ever to be, entirely done away
, cussed in connection with the recent trial of LEFROY, and there but tentative efforts are made in the direction of fusion, the scope
with, is no doubt that there are some serious objections in principle to of which is probably not yery clear even to the authorities who make it, but it seems to us that under our present system, by which the them, one of these being the practice of appointing equity men to prisoner can neither be compelled or permitted to give evidence the common law bench. This necessarily involves, to some extent, himself, the admission of this practice is inevitable. The sterner the evils of which our contemporary complains, although it is and more technical minds of the judges of former days may have true that an equity man so appointed must speedily acquire a seen no difficulty in repressing any such statement on the part of familiarity both with criminal practice itself and other experience counsel, but at the present day there is more compunction with regard to prisoners upon their defence. If a prisoner is defend- cognate therewith. The precedent for these appointments having ing himselt , practically he cannot be prevented from stating facts once been created, we cannot doubt that it will be from time to
time followed. in his address to the jury. The question therefore is, whether, because he has counsel to represent him, he is to be deprived of THE ORDINARY LIBERTY TO APPLY,” reserved in a chancery the advantage of having his statement before the jury. It seems order, became last week the subject of discussion in an action of to us that the feeling of the present day would be all against Huntley v. Link, before Mr. Justice CHITTY. The claim of one making a prisoner take his choice of the two advantages, and Kay, a defendant in the action, had been satisfied, and an order either have counsel but no opportunity of stating his version of had been made dismissing the action as against him. Kay then the facts, or state his version of the facts with the penalty of gave notice of motion for an order that certain securities in the losing all the advantages of being defended by counsel. The hands of the plaintiff should be delivered up to him. This motion difficulties inherent in the present mode of procedure in this was met by the preliminary objection that Kay, being no longer a respect naturally suggest the alternative of making the prisoner party to the action, could not apply in the action except on liberty capable of giving evidence, and so of making his statement regular reserved by the order under which he ceased to be a party; and evidence, subject to the due safeguard of cross-examination. If that, as a matter of fact, liberty to apply was not reserved by that this were done, a true statement, it is suggested, would have much order. In answer to this it was contended that liberty to apply more weight, and so the innocent would profit
, whereas a false is impliedly reserved by every order, whether the words are there statement would generally be broken down. There is no doubt a or not, as bas been recently decided by Mr. Justice Fry. Ultistrong argument to be derived in favour of allowing prisoners to give mately Mr. Justice Chitty held that a defendant against whom evidence on their own trial from the obvious defects of the present an action has been dismissed cannot afterwards move in that practice, but there are many other considerations involved. The action for substantial relief, following the principle of the case of general question of the advisability or otherwise of admitting this Kendall v. Marsters (2 De G. F. & J. 200), where it was laid sort of evidence was largely discussed some time ago in connec- down that the usual direction for liberty to apply does not extend tion with the Criminal Code prepared by Mr. Justice STEPHEN, to an application for costs as to which no express direction is and pretty nearly all that could be said on one side or the other given in the decree. It is clear that very little reliance can be was put forward in that discussion, in which we ourselves took placed on the implied liberty to apply for any purpose beyond part. Unfortunately the Legislature has for a long time been that of carrying out the order into which the liberty is to be imso exclusively occupied with subjects of a more burning nature ported by implication. that matters of this sort have been wholly in abeyance.
During a recent trial in New London, says the Virginia Law Journal, a AN EVENING CONTEMPORARY has recently called attention to rural juror appealed to the court to know if the lawyers could not be stopped the objections attendant upon the practice of sending judges from purpose to bother and confuse us jurors ; don't they, judge ?” “I suppose
from bothering the jury." "Them lawyers," he remarked, “come here on the equity courts into the Crown courts at assizes. To some they do, my friend,” wearily answered his honour.
of the High Court of Justice is likely to occupy this position ? THE PROCEDURE COMMITTEE'S REPORT. This can hardly be suggested without casting a strange and most IV.
injurious reflection upon the members of that body. But, if such
a suggestion could be made, the assertion might safely be In former articles we have referred to those parts of the report sustained that a court of three such judges would form ng which deal with the question of appeal, but the subject is not yet impediment to the course of a cause upwards. exhausted. The committee, in enforcing their arguments in favour be safely and truly said that the very assumption that three
Nay, more, it may of a court in Banc, say that “for certain purposes a court in Banc judges are needed at Westminster to do what one judge is must continue," the reason being as follows :
competent to do at Lincoln’s-inn, or to conduct business at least “Not merely has it to discharge appellate business, but, as regards inferior not more difficult than a single judge conducts there, does itself courts
, matters are now assigned to it by statute, in some of which its decision throw some degree of doubt and suspicion upon the former. For, is final
. Such are all Crown matters (with exceptions not practically worth certainly, these matters of “public importance” are in no respect both municipal and parliamentary,] and some other matters. There are also more difficult than other matters, and require no greater amount a certain number of motions of public importance, such as habeas corpus, quo of judicial ability for their determination. It would be far better warranto, mandamus, criminal information, &c., in which the subjects of the to encourage confidence in the competency of the judges by realm from time
immemorial have had the advantage of reeorting in the first intrusting them with full powers than to suggest a doubt of the instance to the judgment of a court in Bane, composed of more than one judge, units by requiring them to act in groups. and whose decision is, therefore, more readily acquiesced in." Putting aside the question of appeals in actions, which we have
It may, however, be asked whether it can be seriously contended already dealt with, remains to consider how the case stands as that a court of first instance may not be so strong as to discourage to the other matters here referred to. We must venture to inquire appeals from its decisions? Certainly it may, but the question on what ground these matters are to be distinguished from others exhibits the fallacy on which the proposal in question is based. of first instance in requiring more than the rest to be heard by a A court may be exceptionally strong, and that whether it is comcourt of more than one. It is perhaps to be deemed a mere posed of one judge or of several. Perhaps no court ever enjoyed a rhetorical exaggeration (although a report is hardly the place higher degree of confidence than that presided over by a single judge, where we should look for rhetoric) when the subject is said to Vice-Chancellor Wood. But it is one thing to say that a court may have had from “ time immemorial the right of applying for a be so pre-eminent as to discourage appeals from it; it is another quo warranto, a mandamus, or a criminal information, all of them thing to say that as between ordinary courts any such distinction originally, and till comparatively recent times, strictly prerogatire will prevail. There are, and always must be, among judges differmatters, in which it was only by grace that the subject could be heard ences which the public will recognize; but what gnarantee is to move.
So far as the argument from prescription is concerned, there that the court of three will be so constituted as to contain it must be admitted that the right of the subject to have points judges, or even one judge, of the highest distinction ? They will of law raised on demurrer decided by a court of “
be listened to with little more respect than is paid singly to the judge” is of much superior antiquity. Yet that demurrers should individuals composing them; and certainly with no such addibe determined by a single judge has now been for some time tional regard as will materially affect the litigant's disposition to aequiesced in without complaint. This consideration, therefore, appeal. And, meanwhile, for this slender and doubtful adyantage must be set aside, and what remains of the argument is, (1) that three judges will be employed in doing a duty which one is comthe matters enumerated are matters of public importance ; (2) that petent to discharge. The end sought for will not be attained in being such, it is desirable that the judgment of the court of first a degree in any way proportioned to the expenditure of strength instance should be acquiesced in without appeal; (3) that such employed to attain it. a decision will be more likely to be acquiesced in if pronounced these the Supreme Court of Judicature Act, 1881, s. 14, has
Next, as to the matters in which appeal is final. As to some of by more than one judge.
In examining these propositions, it will be worth while to already removed the finality; and, putting these aside, the inquire what are the considerations which tend to increase or question may be asked whether in others decisions are not diminish appeal. A first place has to be assigned to the nature of now final where an appeal ought to be allowed ? No one, for the litigation. If the amount at stake, either directly or instance, can think it a very satisfactory criterion of whether a indirectly, is large; if the resources of the litigants are abundant ; case is suitable for appeal that a penalty is imposed, the imposiif the matter is one which, though the amount at stake is not tion of which depends on a difficult point of construction in an great, yet the interests and feelings of the parties are deeply important statute; and the consequences of the existing rule may engaged, those circumstances exist which makes an appeal probable. be well illustrated by the recent case of Saunders v. Richardson A very inferior place must be assigned to the greater or less (L. R. 7 Q. B. D. 388). In that case an important point under doubt and difficulty of the question to be decided. If, however, the Education Acts had been decided by a divisional court, of the question is one which, being difficult, is also likely to which a highly-respected judge, Lindley, J., was the senior member. recur, and to involve further litigation, a motive for The case arose on a penalty and there was no appeal. Upon the appealing is at once supplied. These are the really operative same point presenting itself to another divisional court, the deciconsiderations, and no ingenuity will prevent them from sion did not commend itself to the judges, but it was difficult to having their effect, if, at least, there is a court of appeal to decide in direct opposition to the view acted on in a co-ordinate which litigants care to resort. But there is a way of check- court. The case was therefore adjourned, and the Lord Chief ing, though not of preventing, appeals. If the appeal is Justice directed that it should be re-argued before a court of five made cumbrous, costly, and dilatory, instead of being simple, judges. This was done, and the rule laid down by the previous easy, and speedy, then, no doubt, at the cost of injustice to those decision was practically reversed by a court which was not a who still appeal, others who desire to appeal and would have court of appeal. Now the question may reasonably be asked appealed will be deterred from incurring the risk, and appeals will whether this method of reversing one decision, by re-arguing be diminished. This is a consideration often lost sight of when a another before an extraordinary court, is cheaper, speedier, more comparison is made between the number of appeals at common just, or more convenient than an appeal to the ordinary Court of law and in chancery under the old system. In chancery the appeal Appeal, sitting constantly to review the decisions below. It may was simple, easy, and expeditious, and to known judges; at common be a very reasonable thing that, in certain classes of cases, the law it was cumbrous and dilatory, and to a court which was fluctuat- court which hears the case should have discretion to grant or ing and wholly uncertain in its composition, both in numbers and refuse an appeal and to impose conditions, but it does not seem a in quality. It will hardly be desired that appeals should be reasonable thing that, however difficult and important the point, diminished by reducing the efficiency of the Court of Appeal, or and however desirous the parties, or the court itself, may be to obstructing the access to it.
have the decision of the Court of Appeal, this should not be Perhaps, however, there is a way of stimulating appeals. It possible, and that a review should only be obtained by summoning is possible to constitute so weak à court of first instance that a cloud of judges from their other duties, to create a new and it should come to be regarded as only a necessary ante-chamber inconvenient tribunal. to the Court of Appeal. But is it to be suggested that a judge In a word, if there is any class of cases fit to be determined by a
judgment of the High Court, it may safely be affirmed that there the appeal should lie directly from his decision to the Court of will be some among them in which it is desirable that an appeal Appeal. should lie to the Court of Appeal, and that the decision of the The next resolution is so admirable that, though less germane to High Court should therefore not have the character of absolute the present subject, yet being sufficiently allied to it, we will quote finality. While, on the other hand, as to those of the number it in this place, understanding by " the court” the Court of which are so small and trivial, or so free from doubt, that a | Appeal. further appeal, though desired, ought not to be allowed, it may
“19. Neither party shall have a right to a new trial on the ground that also be safely affirmed that a decision by a single judge will be as
some question bas not been left to the jury which the judge at the trial bas satisfactory to the public, and more proportioned to the matter in not been asked to leave to the jury. The court shall have power in such question, than the decision of a court of three.
cases either to direct a new trial, or, with the view of saving a further trial, to It would, therefore, be much more in accordance with the reason
draw all inferences of fact, or take further evidence, or direct inquiry.” of the thing and with public convenience that an appeal should There is, finally, a resolution which, having regard to the course lie from every decision of the High Court; but that such appeal of business in late years, is certain to be more or less fully adopted ; should, in certain classes of cases, be by leave only. It would nor can we see any reason for desiring to limit it :probably be right to lay down in general terms the considerations
"12. The mode of trial shall be by a judge without a jury, but, which should guide the exercise of this judicial discretion. The
on the application of either party, an order shall be made results reached by the judge in the application of those principles that the cause be tried by a jury, if it shall appear that the questions would be with difficulty and reluctance interfered with; but the involved can conveniently be so tried; provided always that in the following too rigorous exercise of the power of precluding appeal might be seduction, false imprisonment, malicious prosecution, breach of promise of
against the branch of the appeal court which deals with motions of
This again is referred to here from its bearing on the question practice.
Before quitting the subject of appeal we may notice certain of appeal business. An argument in favour of a court in Banc is proposals of the committee which, though not placed under that raised by the committee, on the ground that the appeal in new heading, have a direct bearing on the question of appeal business. have already examined the force of this argument ; but what we
We The first relates to new trials, and is contained in the two follow- have now to observe is, that the effect of the new rule will be to ing resolutions : ** 18. After the trial of any cause before a judge and jars, the judge may, will apply; and therefore, in a practical sense, the importance and
diminish very largely the number of cases to which this argument upon application, certify that he is dissatisfied with the verdict, in which case a new trial shall take place unless the court shall otherwise order.”
value of the rule grounded upon it. The trial being before a
judge alone, the existing rule, which it is not proposed to disturb, The reason given for this proposal is that when a judge reports will carry the case direct to the Court of Appeal ; the judges who that he is dissatisfied with a verdict “the general rule, acted upon would constitute the court of three will be set free to discharge in the vast majority of cases,” is to set aside the verdict and to their own independent duties; and the Court of Appeal will not order a new trial. That this statement truly represents the fact, be called upon to disturb its sittings, and to give one of its however inconsistent with the respect which the committee else members a holiday, by summoning an extraordinary court of five. where express for the judgment of the “twelve men,” no one will doubt; and it is with reason contended that the power now exercised in fact, but not directly, should be in future exercised openly, and without the delay and cost incurred in an argument before a court which will end by adopting the view of the pre
THE PRACTICAL EFFECT OF THE siding judge. But it is important to observe that the effect of this
CONVEYANCING ACT. rule will be to relieve the court of business which at present
X-LEASES. occupies a considerable portion of its time, and to relieve the Court of Appeal, if courts in Banc should no longer be deemed We propose in this article to examine very briefly sections 10-14, necessary, of a considerable portion of the business which would of which the first three are surpassed in the difficulty of their otherwise be transferred to them.
So far as
concerns new subject-matter by no other part of the Act. We may add that trials on the ground that the verdict is against the weight no other part of the Act seems to have offered a fairer opporof evidence, those cases only will go to the appeal court in which tunity of permanent and valuable legislation. To have laid down the judge either concurs with the jury, or does not express himself plain and equitable rules for deciding under all circumstances dissatisfied with their verdict, or in which the successful party is what persons are entitled respectively to claim the benefit and to prepared to sustain the verdict against the opinion of the judge. enforce the burden of covenants having reference” to lands At the same time it must be pointed out that the course proposed comprised in a lease, and also for deciding what covenants is not without its perils. If the application is to be made on the come properly under that designation, would have merited the spot, and decided as it must in that case be, without argument, and profound gratitude of the profession. Other very useful on the impression prevailing in the mind of the judge at the close of information might also be given by rules for deciding under all the trial, the result (apart from the somewhat too open disregard of circumstances what persons are entitled to take advantage of a the opinion of the "twelve men ”) may not always be satisfactory condition of re-entry or (if the subject needs to be treated) A judge is apt to take a view strongly, which further reflection any
s other condition" contained in a lease. Since the severe modifies; and it cannot, we think, be denied that many cases have simplicity of the common law, which narrowed the inquiry by occurred where the judge would, on the spur of the moment, closely restricting the respective rights and liabilities of the have ordered a new trial, but where, on further reflection, he has parties, was invaded by the statute 32 Hen. 8, c. 34, the questions perceived that the case fairly admitted of a view different from here involved have been constantly growing in complexity, and that which he has entertained, and has, in the end, refused to their answers in bulk. After that the aid of equity had been certify his dissatisfaction with the verdict. If, on the other hand, successfully invoked, in the famous case of Tulk v. Moxhay, to the "application " is to be a substantive motion or argument, the effect, for most purposes of practice, a great enlargement of the saving in time and money will not be what is anticipated. Nay, list of relevant covenants, the total mass of the learning bearing if the case is first to go to the judge, and then to the court in Banc, upon the subject became so vast that even a superficial examinawith a liability to further appeal, both delay and expense will be tion of it would far transcend the space at our disposal for dealing increased. Yet there can be no doubt there is great force in what with the above-mentioned sections of the Act. These deal only the committee urge. And perhaps, when it is duly considered, it with covenants between lessor and lessee. The first of them, forms an argument against the existence of the intermediate appeal section 10, refers to covenants by the lessee “having reference to to a court in Banc. The argument of the committee may there the subject-matter” of the lease, and also with conditions fore so far be adopted. It seems reasonable that the first applica- contained in a lease. It is noteworthy that the conditions in tion for a new trial on the ground that the verdict is against question are mentioned in general terms, without the addition (or evidence, should be before the judge who tried the case; and that rather, with the ostentatious exclusion) of any such restriction as