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Uunnsnr Tories ---------------- -- 119
all palates keeps if; years in all climates, and’ is tour
, RICHARD FLINT & C0.
, (Late ASH s FLINT).
V01. 'xxXI., No. g. THE SOLICITORS‘ JOURNAL. .35
CASES REPORTED THIS WEEK.
The Solicitors’ journal and Reporter
LONDON, DECEMBER 25, 1886.
Ir wn.L as OBSERVED that the vacation notice provides for two sittings by Mr. Justice Gaanrnszu and three sittings by Mr. Justice STIRLING in the Q,ueen’s Bench J udge’s Chambers.
Ir snonnn as NOTICED that on and after next sittings petitioners coming to any branch of the Chancery Division to establish their title to a fund in court will have to state in their petitions, within inverted commas, the exact words of the will or other instrument under which the money is claimed. This is the result of Mr. Justice Kir’s recent mishap in ordering £1,000 to be paid out of court to a person having no claim to it. It may be added that the original instrument should be in court, as the judges, in all probability, will not always be satisfied with the mere statement iu the petition.
Tan LEGAL POINT of most interest in the Campbell case was the attempt to introduce a new principle of the law of evidence in the enforcement of the production in court of the notes made by a solicitor or his clerk of the statements of witnesses whom it was intended to call at the trial. One of these statements was handed In by counsel under protest, but all subsequent demands of the flame kind were refused, and Mr. Justice Burr appears to have been clearly of opinion that the production could not be enforced, especially since no notice to produce or subpanm duces tecum had been served. There appears to be no authority directly in point, but the general rule of evidence on this subject has been discussed "1 lnfllly actions against railway companies, where discovery has been sought of reports made to the defendants by their medical Olficers and other agents. The decisions are somewhat conflicting, but in Former v. T/ie South-Eastern Railway 0'0. (20 W. R. 830, 7 _Q. B. 771), Lord BLACKBURN observed: “The principle, I think, to be derived from all the cases is that, where it appears that the documents are substantially rough notes for the case, to be laid before the legal adviser, or to supply the proof Io be inserted in the brief, the discretion of the court should, as a general rule, be _re_fuse the inspection.” A stronger authority against the admissibility of such documents is to be found in Greenouylz v. Gaslrell (1 M. & K. 103), where Lord BBOUGHAM said: “If, touching matters that come within the ordinary scope of professional employment, legal advisers receive a communication In their professional capacity, either from a client or on h1fl_ account and for his benefit in the transaction of his Mame", 01: which amounts to the same thing, if they commit t° P"'Pe1', 1_n the course of their employment on his behalf, matlicrs which they know only through their professional relation to the client, they are not only justified in withholding such matters, but boimd to withhold them, and will not be comPeufid to disclose the information or produce the papers in any °°11Fli Of law or equity, either as party or as witness.” This shows,
at any rate, that the doctrine of professional privilege is not restricted to communications which have been made to the solicitor by the client himself. Any doubt as to the confidential nature of the document which was actually produced by Lord COLIN CAMPnsi.1.’s counsel is removed by the fact that one of his solicitors, or one of the clerks of the firm, had actually written on the margin of the document certain comments upon the statements which had been made by the particular witness. There can be no doubt that if Messrs. Huiirnasrs & Sou had been served with a subpgvna duces Iecum they could have successfully resisted production of their notes of the witness’s statements. If the memoranda of every witness’s first statement to the solicitor could be called for as a matter of right, cross-examinations would be indefinitely prolonged, and there would be no apparent reason why the draft briefs, or even the proofs actually in the hands of counsel, should not be produced.
Two iincsxr CASES, one in the Court of Appeal, the other in the House of Lords, have been wholly concerned, so far as the reports
, go, in correcting a dictum of the late Master of the Rolls in Sola
mon v. Bilton (8 Q. B. D. 176). He is there represented as having said that “the rule on which a new trial should be granted, on the ground that the verdict was unsatisfactory as being against the weight of evidence, ought not to depend on whether the leained judge who tried the action was or not dissatisfied with the verdict, or whether he would have come to the same conclusion as the jury, but whether the verdict was such as reasonable men ought to have come to.” This criterion manifestly throws upon the Divisional Court or the Court of Appeal the duty of re-trying the case, in order to determine the right to a new trial. This was never the law, and the mistake was corrected in these columns as long ago as July 7, 1883, when we called attention to a statement by Mr. Justice DENMAN that in answer to inquiries by some of the judges, Sir Gsouon Jsssi-1L had stated that the report of Salomon v. Bil/tan was not correct, and that what was said was that the rule should depend upon whether the verdict was such as reasonable men miylzt have come to. This is precisely the emendation suggested by Lord Hsrsnuar in llelropolitan Railwa_1/ Co. v. lVr1}flzt(34 W. R. 746, ll App. Gas. 152), and prevents a new trial, if by any possibility reasonable men could have found the verdict in question; but Lord Esnss, in the still more recent case of lVebsler v. Friedaberg (34 W. R. 728, 17 Q. B. D. 736), with the judgment of Lord Hussvnr before him, has fallen into the strange error of purporting to correct the judgment in Salomon v. Biltzm by substituting “ ought not” for "ought ”-—a verbal alteration which inverts, but does not essentially aifect, the issue to be determined. If a new trial is to be granted, according to Lord EsIIi=.a’s test, when the verdict is “such as reasonable men ought not to have come to ” it is plain that the subject of inquiry must be the general propriety of the verdict, not its consistency with the hypothesis of a rational jury. There can be no doubt that the present Master of the Rolls _meant precisely the same thing as Lord H.iLsimn', and it is to be regretted that he did not adopt the same words. As he statcs in his judgment that he has "corrected" the court copy of 8 Q. B. D. by inserting the word “ not ” after the word “ought,” the learned judge must have regarded with complacency his improvement on the language of his predecessor.
A DIVISIONAL COURT has refused to grant a rule for a criminal information against the proprietor of the /:'ueni'n_9 Nazca for the publication of an alleged obscene libel, consisting of the report of the proceedings in Campbell v. Campbell. Two questions werein= volved in the case, the first being whether the publication of such proceedings is a criminal ofience at all, and the second, asspniing that a criminal offence may have been committed, whether criminal information or indictment was the proper form of procedure. Upon the second question only the court expressed an opinion, refusing the rule, partly, indeed, on the ground that the application had not been made earlier, but mainly because affidavits would be required setting out the libel complained of, 'and_these alfidavits would be just as likely to be published as the libel itself, whereas the proceedings before a grand jury are B9<>l‘el1- A5 l7° the first point, all the court appears to have said was that tlge question was “a serious one which would have before long to o
decided." The point cannot be said as yet to have been settled by authority. The cases of Sieele v. Brennan (7 C, 261) and R. v. Carlile (3 B. & A. 167) are really no authorities (though they might appear so to be at first sight) for abridging the liberty of publication, for in both those cases the matter which formed the subject of criminal proceedings had been already held _libellous in prior criminal proceedings. As was said by Mr. Justice Ksiriuc in Steele v. Brennan, “ the law would be self-_con_tradietory if it made the publication of an indecent work an indictable offence, and yet sanctioned the re-publication of such a work under cover of its being part of the proceedings in a court of justice.” But the case is very different where the publication of other proceedings is sought to he checked, because portions of such proceedings happen to be indecent. No doubt there are dicta (see especially per Barter, J ., in R. v. Carlile) in favour of repressing such publications by criminal proceedings, and the liberty to publish reports of trials at all is itself entirely of modern growth (see per COCKLIURN, C.J., in Wason v. FVnl!ei-(4 Q. 13., atp. 93). But we think the question, when it comes to be raised, will have to be decided on the broad ground of the balance of public interest; and we trust that it will be decided free from the disturbing influence of the just indignation occasioned by the recent outrageous abuse of freedom of publication.
THE QUESTION involves much wider considerations than are contemplated by a correspondent whose letter will be found in another column. If you once begin to restrict the publicity, which is the safeguard of the administration of justice, where are you going to stop? There are many people (both on and ofi the bench) who regard the publication of a full report of a trial for a blaspheinous libel, or a seditious libel, or a_ libel on the private or public character of the Sovereign, as not_ less objectionable to the public interests than the publication of indecent evidence. Are you, therefore, going to allow judges to charge juries, and decide points of evidence in these classes of cases, freed from the responsibility 9-ttaohing_to directions and charges given in the full light of publicity? Tho simple fact is (whatever our correspondent may_tl_1ink) that there are very few judges who can be trusted to administer justice in a Star Chamber. It seems to be supposed that when 9. judge puts on his ermine he puts off the old man with all his deeds. Talk to a judge at his club, or in society, and you will soon find out the absurdity of this notion. Or take an 111§tfl_I106 =_ Suppose the present Lord Chancellor were to proceed by priminal information against the _Dail_y NBWB for the article headed
‘The Lord High Jobber,” which appeared on Thursday; and suppose the defendants attemtted to prove the truth of the statements made in_tl_iat article: should any judge try in secret such a case? yet publicity would be in the highest degree undesirable. But our correspondent thinks that the “interests of the mm-315 of the people far exceed the private interests " of litigants in the Divorce Court. Certainly, but that is_not the question: the question is ghetljer rlpore injury to the interests of the commonwealth is bong y p) e occasional publication of indecent details than would
0h_ plne yl universal distrust in the administration of justice €V_1i? Wind inevitably follow from an extended system of secret jizzls. n what, we may add, would be the effect on the number o _ ivorce cases if they could be snugly pushed through in a
ggxgfggéiriisiij, without that most annoying publicity given by the
court or a judge, pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may, with a defence denying liability, . . . pay money into court which shall be subject to the provisions of rule 6." The payment into court made by the defendants was a payment in in salisfaction, and, as such, operated as an admission of liability. Subsequently the defendants delivered a. defence denying liability, and an application on the part of the plaintiffs that the defence should be struck out as embarrassing was dismissed, the judge being of opinion that the plaintiffs had been in no way injured by the procedure adopted by the defendants. This may be so. Still whether the judge was right or wrong in the interpretation he placed upon the rules of order 22-and with all deference we are disposed to think that he was wrong—as a matter of convenience it is certainly desirable that it should be made clear at as early a stage as possible in the proceedings whether money paid into court by a defendant is intended to be paid in as an acknowledgment of liability or with a defence denying liability. If the defendants had desired to pay money into court, and at the same time deny their liability in respect of the whole cause of action, they ought to have waited till they delivered their defence, when the position of the parties would have been regulated by rule 6 of order 22. If they desired to pay money into court in respect of a portion of the plaintiffs’ claim and defend as to the residue, they could, of course, have done so. What they actually did was to admit their liability on the whole cause of action by paying into court generally, and then deny all liability in their defence delivered some time afterwards. Taking rule 1 of order 22 in conjunction with rule 5 (a.) of the same order, it certainly seems to follow that, if a defendant desires to pay money into court and at the same time deny his liability, he must deliver his defence at the time he pays the money into court. It is not reasonable that a plaintiff should be first led to believe that money paid into court is intended to operate as an admission of liability, and be afterwards informed by a defence—delivered, perhaps, a month laterthat the defendant had no such intention.
Tnn ATTEMPT made on Tuesday to appeal against the order in Mr. DiLr.oiv’s case on the ground of want of jurisdiction was, of course, unsuccessful. The question was fully discussed in Se_ym_our v. Davitl (12 L. R. Ir. 46), upon which we commented at the time (26 Soniciroris’ JOURNAL, 80). The power of ordinary justices to require sureties for good behaviour from persons inciting to non-pay ment of rent had been settled shortly before by Raj/nolds v. Jusfim of County Cor/: (10 L. R. Ir. 1) and Fcehan v. Juslices of Q1100?!’-Y County (Ibid. 294). In the latter case FITZGI-1RALI),J-, carefully considered the origin and extent of the urisdiction of a justice of the peace, and adopted the judgments of Aiinor, C.J., in Willfil VBrid_qer (2 B. & Aid. 278), and of Lord C.\)Il‘IlELL, C.J., in ]Ia_i/I001‘ v. Sparke (1 El. & Bl. 471). “ Without citing further authority,” he said, “ we may assume that Where it shall be made reasonably to appear to a justice of the peace that a person has incited otheffl by act or language to a violation of the law and of right, and_th1li there is reasonable ground to believe that the delinquent is likely to persevere in that course, such justice has authority by law, ill the execution of preventive justice, to provide for the P115110 security by requiring the individual to give sureties for good hehaviour, and in default commit him to prison.” This jurisdiction is supposed to have its origin in 34 Edw. 3, c. 1, which enacted: “ That in every county should be assigned for the keeping of the P9309 °1191°1‘d, and with him three or four of the most worthy 01 the county, with some learned in the law, and they shall have power . - . to take of all them that be not of good fame where they shall be found suflicient surety and mainprise of their good bohaviour towards the king and his people.” It is to he noticed that under this statute persons may be bound over to be of 8°°d belw-Vi0\1l' where no actual breach of the pence is to be i1PPle' hended from their conduct, as where it is simply contra balm mores (Hawkins P. C., bk. 1, c. 28, s. 2). The question, therefore, in Seyniour v. Davitt was how far a. similar urisdiction W95 vested in the Queen’s Bench. That it had a. common law jurisdiction in sureties for the peace was not denied; the contention was that this did not extend to sureties for good behaviour, and that no such jurisdiction had been conferred by statute. But the
answer was twofold. No such distinction existed at common law, and the jurisdiction in question was expressly recognized by statute. It was true that all the reported cases were cases of articles of peace preferred by one subject against another; but Chief Justice Mix quoted from Pulton. a contemporary of Lambard, the following passage, cited in ]3urns’s Justice of the Peace, vol. v., p. 758: “The surety for good abearing is ordained for the preservation of the peace, and doth differ in nothing from that of the peace but that there is more difliculty in the performance of it, and the party bound may more easily slide into the peril and danger of it. The surety for the good abearing is most commonly granted in open sessions, or by two or three justices; or upon a supplicavit, and great cause shewn and proved, it is granted in the Chancery or (),ueen’s Bench.” And, moreover, it is expressly recognized by statute that the power in question belongs to the Queen's Bench, inasmuch as its exercise is regulated by 10 & ll Car. l, c. 10, an Irish statute, corresponding to 31 Jac. l, c. 8, in England. It appears to have been the custom to bring persons who were to be bound over to keep the peace or to be of good Iieliaviour from the country up to Dublin in order, by proceeding before a judge in chambers, to avoid the publicity of an examination before a local justice. Hence it was enacted that any such proceedings must take place in open court. Thus it is clear that both process of the peace and process of good behaviour had frequently issued out of the superior courts, and the statute in regulating the practice for the future clearly assumed that the jurisdiction existed. It is, indeed, inherent in the court as supreme conservator of the peace in every county in Ireland. As Mr. Justice Joiixsoii said, it has been inherent in the court from the time when it followed the king about the country to help in preserving the public peace. If more than this is wanted, the same construction which extends the Statute of Edw. 3 to justices extends it to the court also (Mix, C.J., in Seymour v. Daritt, at p. 52), and the Statute of Car. 1, in regulating the jurisdiction, expressly recognizes it. In Mr. DirI.o>i’s case the incitement was not to withhold rent entirely, but as was said by Mr. Justice O’BRrr.N, the rent was to be withheld until reductions were made, and the contract was equally broken. It is thus within the dictum of Mr. Justice Firzonnirn quoted above.
Wr: are enabled to publish elsewhere four new Rules of the Supreme Court of considerable importance which come into operation on the lst of January next. Three of them are supplementary to the rules of October, 1884, which provided for the carrying out of the system of trials of chancery causes on circuit. The first of the new rules is an addition to ord. 5, r. 9, and provides that, subject to the other provisions of rule 9, every cause or matter in the Chancery Division commenced in the District Registry of Liverpool or Manchester shall be marked with the name of such judge of the Chancery Division as the Lord Chancellor may direct.
The second new rule will come in as rule Ga of order 35. This rule empowers the district registrar, when a cause or m_8ttc_r, commenced in the Chancery Division, is proceeding in the District Registry of Manchester or Liverpool, to act throughout all th_c_p_roceedings as a chief clerk of the judge of the Chancery Division_to whom the cause or matter is assigned, and as registrar and taxing master according to directions to he given by the ]“d8@- The rule further provides, however, that no order for the payment of money out of court for an amount exceeding £ 50 may be made except by the judge in person, and no district registrar who is a practising solicitor may tax the costs.
The effect of these rules will be that the work of trying Liverpool and Manchester chancery actions will be assigned to one particular Judge, lfnd it will be the duty of the judge, to whom these actions are assigned, to go down to Manchester or Liverpool and hold special sittings for the trial of these actions. It will be remembered that the rule of August, 1886, which was substituted for the rule 22a of the rules of October, 1884, provides that if on June 1 and_December 1 in any year it appears that ten or more ihancery witness causes proceeding in the district registries of d“'eTP°°1 find Manchester, or either of them, have been set hown for trial in these registries, special sittings shall be
91d for the trial of the causes set down for trial at these
places respectively. In all probability Mr. Justice Kekewich, as being the junior judge of the Chancery Division, will be tho judge to whom this duty, under the new rule, will be assigned, though this, of course, is a question which will have to be considered hereafter. The effect of the new provisions will be to give to Lancashire suitors the advantage of either having chancery causes tried in the Palatine Court, or of having them carried through in the district registry without any necessity for the employment of London agents. The chief objection to the new arrangement is, of course, obvious—viz., that the chambers of the judge to whom the Laneashire chancery causes are assigned will be two hundred miles from the judge. This will, probably, have the effect of causing the Liverpool and Manchester district registrars to exercise their powers more independently than is usual in the case of the chief clerks and taxing masters in London. At present, too, we presume it would be admitted that the Lancashire ofiicers have not the advantage of the experience of their London brethren. There may be some slight difficulties in the working of the rule at first, but no doubt these difiiculties will soon disappear.
The third of the new rules is introduced in the form of a proviso to ord. 35, r. 12; the rule providing that every reference to a judge by, or appeal to a judge from, a district registrar in a cause or matter in the Chancery Division shall be to the judge to whom the cause or matter is assigned. The proviso is to the efiect that in any cause or matter proceeding in the District Registry of Manchester or Liverpool, the reference or appeal may be to any judge for the time being sitting either at Liverpool or Manchester. This will involve some addition to the work of the judges of assize when sitting at Liverpool or Manchester. It is not likely, however, that these applications will be very numerous. Should they become so they might seriously delay the assize business.
The last of the new rules relates to an entirely different matter. It is an addition to rule 27 of order 65, and deals with the vexed question of refresliers in a manner that will be satisfactory to the profession generally. The new rule empowers the taxing officer, in the taxation of costs between solicitor and client, to allow larger fees than those specified in ord. 65, r. 27 (48), under special circumstances to be stated by him. This extension of the discretionary powers of the taxing oflicer is evidently the outcome of the case of Ra Ifarrison in the Court of Appeal (34 W. R. 645, 33 Ch. D. 52), and closes the discussion which has several times occurred in our columns. The words of the new rule authorizing the taxing master to allow larger refresher fees than those prescribed, under special circumstances to be stated by liim, appear to give the taxing master, in the case of taxation between solicitor and client, an absolute discretion in the matter of refresher fees. The change thus introduced is, we believe, in accordance with the suggestion of the Bar Committee and the Incorporated Law Society, as contained in the joint memorial recently presented by them upon this subject. Doubtlcss these bodies will be gratified to learn that their representations have been so promptly attended to.
THE case of Ra Merritt, Ex parte the Oficial Receiver, on appeal from Ex parts Benlley, 12¢ 1l[orr1'tt(34 w. R. 579). was decided by the full Court of Appeal, consisting of the Master of_thc Rolls, Cotton, Lindley, Bowen, Fry, and Lopes, L.JJ. Having regard to the great importance of the decision, we shall_ proceed_to discuss it, although we intend to postpone the_ remaining articles on Mortgage Bills of Sale till after the Chi-ist_mas Vacation. The question to be decided was whether the insertion of a proviso ip a bill of sale “ that the power of sale conferred by the Conveyancing Act, 1881, shall be exercised as if section 2Q of that Act had not been enacted," rendered the bill of sale invalid. The _case is curious, owing to the great diversity of opinion among'the judges; the county court judge declared the bill of sale to be yoid as agaipst the oflicial receiver. The Divisional Court declared it to he valid; the reasons given by Manisty, J., are not reported. Cave, -7-» was of opinion that the Conveyancing Act applied, and that the proviso was valid. The Master of the Rolls,_ Cotton, Lindlcy» Bowen, and Lopes, L.JJ., held that the provisions of the Con
iveyancing Act, 1881, did not apply to bills Of SE10; but the