152 Superior Courts: Queen's Bench.-Common Peas. tion of two offices formerly held by the same person, a distinct refusal must be shown. It is insufficient where the officer only asked for time in order to separate the several wills, &c., to which the other officer was entitled. A rule nisi under such circumstances was discharged, with costs. THIS was a rule nisi for a mandamus on the deputy registrar of the Archdeaconry Court of Warwick, to deliver up to Mr. Charles John West, the registrar of the Commissary Court of the Bishop of Norwich, all the wills and other documents belonging to that Court. It appeared that in the Archdeaconry of Norwich there were two Courts, the one of the Archdeacon and the other of the Bishop's Commissary, which exercised similar jurisdiction, and had heretofore been held by the same person. The office was now divided, and the Commissary claimed to have the wills, &c., in his department. All the documents were kept in the same building, but the original wills were easily distinguishable, but the copy of both classes of wills were entered in the same book, which was bound up at the end of each year. H. Hill and Blackburn showed cause against the rule, which was supported by Palmer. The Court said, that Mr. Hansell had not claimed the documents belonging to the Commissary, but had only asked for time to separate them, and had offered to devote a portion of each day to the task. There had therefore been no refusal, and the rule would therefore be discharged with costs. O'Kines v. Onslow. June 12, 1856. SEQUESTRATION. -EXECUTION BY SUC CESSOR. A sequestration issued in respect of a living belonging to the see of Canterbury and directed to the archbishop. The living was afterwards transferred to the Bishop of London: Held, that he should execute the writ without a new one being issued, as he was quoad the successor of the archbishop. THIS was a rule nisi on the Bishop of London to return and pay over to the plaintiff in this action, the amount levied under a writ of sequestration upon a judgment against the defendant, who was the incumbent of Newington, Surrey. It appeared that this parish formerly formed part of the see of the Archbishop of Canterbury, to whom the sequestration was directed, but had been lately transferred to the diocese of the Bishop of London, together with the sequestration in question. Court of Common Pleas. COMPROMISE OF FEIGNED ISSUE.-AUTHO Held, that the authority of counsel to agree On a feigned issue from Chancery the matter was compromised by order of Nisi Prius which was afterwards made a rule of Court: Held, that an application for disobedience thereto should be made at law and not in equity. The plaintiff refused to fulfil the agreement against the plaintiff for non-obedience to a rule d. Earl of Cardigan v. Bywater, 7 C. B. 794; Attorney-General and Whateley in support, referred to Furnival v. Bogle, 4 Russ. 142; In re Hobler, 8 Beav. 101. The Court said, that the objection that the application should have been made to a Court of Equity, as the issue was for the purpose of assisting that Court in disposing of a suit there, was unfounded, as the issue was a proceeding in this Court, and the agreement had been made a rule of this Court, which was therefore the proper tribunal to punish a contempt. Then on the objection that the arrangement was made by counsel without authority, the Court could not listen to such an objection. It would be fatal to the administration of justice if the authority of counsel were allowed to be questioned, as if he did what a client repudiated, the course was for the client to withdraw his brief. Then as to there having been no contempt. Although in the communications with the attorney, there had been shown great disinclination to perform the agreement, yet this was before the order at Nisi Prius was Imade a rule of Court. There was therefore no refusal to obey a rule of Court, and the refusal in question could not be construed into a The Court (without calling on W. H. Cooke continuing one. As this was in the nature of in support) said, that quoad the parish of a criminal proceeding, the rule of practice must Newington the bishop was successor of the be strictly adhered to, and the plaintiff be archbishop, and as successor he was bound to served with a copy rule personally and a perexecute writs of sequestration although di-formance be demanded. The rule must be rected to his predecessor. The rule would discharged, but without costs, and without therefore be made absolute. prejudice to any further application. H. Hill and Badeley showed cause against the rule. The Legal Observer, AND SOLICITORS' JOURNAL. SATURDAY, JUNE 28, 1856. REMAINING LAW BILLS IN PARLIAMENT. Ir is rumoured, that endeavours will be made to close the business of the Session of Parliament earlier this year than the last. The prorogation took place in 1855, on the 14th August. We are now nearly at the end of June, and there remains therefore but little more than a month to go through the labour of considering, amending, altering, and revising the numerous bills which are still, after the lapse of five months, before one or other of the Houses of Parliament. There must, as usual, be a large number negatived or withdrawn, or appointed to be read three or six months hence. We propose, therefore, again to devote a small space in order to bring to the notice of the profession the principal bills wherein they are more or less interested, either for themselves or their clients. For a large class of the proprietors of estates, and those interested under wills and settlements, together with their respective solicitors, the Settled Estates Bill, holds a prominent position. There is ample time to pass this measure through its remaining stages in the House of Commons, and unless that branch of the Legislature should make any material alterations, the bill will go back to the House of Lords, and may receive the royal assent before the close of the session. Next to this measure, we look upon the Joint Stock Companies Bill, including the principle of limited liability, and the Law of Partnership amendmend Bill, as highly important both to the commercial classes and to the attorneys and solicitors whose legal services they will require, and which assistance must, indeed, be indispensable in carrying the provisions of the new law safely into effect. more general bill for establishing a Court of Probate and Administration. Yet it must not be forgotten that there still remains to be provided some sufficient enactments relating to church or rather clergy discipline. The Lord Chancellor's bill on that subject was negatived, and we observe that the Bishop of Exeter's "Clergy Offences" Bill has made no progress since the first reading. The Solicitor-General's Ecclesiastical Courts' Bill, after much discussion, was read a second time last Thursday evening, and will be considered in Committee next Thursday. The Solicitor-General has agreed to incorporate in his Bill some of Sir Fitzroy Kelly's clauses, and probably therefore the Government will be supported by the Conservative party, and thus the Bill may pass. It will however require several amendments to be made in Committee. The next important alteration of the law which will materially affect both client and attorney, is that proposed to be effected by the Mercantile Law Amendment Bill, especially as it relates to the partial repeal of the statute of frauds in regard to contracts in writing. Important evidence was given before the Select Committee, but three out of five of the members of that committee voted in favour of the repeal clause; and we understand the question will be strenuously mooted in the House of Commons. It is not improbable that this difference of opinion will occasion a postponement of the bill. The County Courts' Further Amendment Bill may be ranked next in order; and as it has been steered successfully through the Upper House, and to a certain extent is founded on the report of the Commissioners, it may also pass the other House. But the interesting clauses which relate to the salaries of the Judges are yet to be discussed before that tribunal to which they properly belong. We observe that notice of motion has been recently given to increase the salaries of all the County Court Judges to one uniform amount of £1,500. The Ecclesiastical Courts Bill is also of great professional importance. We observe that Lord Lyndhurst has brought up the report of the Select Committee on the Divorce and Matrimonial Causes Bill, Another proposition of great importance is the and that this measure, which is essential to the Lords Appellate Jurisdiction Bill which has been completion of the reforms relating to the Ecclesias- sent down to the House of Commons,-where a distical Courts, will shortly be considered in a Com- cussion is expected to arise on the amount of the mittee of the whole House. If the subject of divorce salaries of new Law Lords, who will officiate as and matrimonial grievance can be satisfactorily Deputy Speakers of the House, being Peers for life, arranged, it will go far towards assisting the other and sitting on appeals with the Lord Chancellor. VOL. LII. No. 1,477. K 154 Remaining Law Bills in Parliament.-New Statutes.-Intestates' Estate Bill.-Review. The following are the Title, Preamble, and Sections of this Act: An Act to amend the Law relating to Drafts on Bankers. [June 23, 1856.] Whereas doubts have arisen as to the obligations of bankers with respect to cross-written drafts: And whereas it would conduce to the ease of commerce, the security of property, and the prevention of crime, if drawers or holders of drafts on bankers payable to bearer or to order on demand were enabled effectually to direct the payment of the same to be made only to or through some banker: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. In every case where a draft on any banker made payable to bearer or to order on demand bears across its face an addition, in written or stamped letters, of the name of any banker, or of the words "and company," in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker. 2. In the construction of this Act the word "banker" shall include any person or persons, or corporation, or joint-stock or other company, acting as a banker or bankers. ADMINISTRATION OF INTESTATES' ESTATES BILL. THIS bill, which is prepared and brought in by Mr. Locke King and Mr. Headlam, purposes to enact that the special customs concerning the distribution of the personal estate of intestates observed in the city of London, the province of York, and certain other places, shall, with respect to all persons dying on or after 1st January, 1857, wholly cease and determine; and the distribution of the personal estate of all persons so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estate of intestates generally prevalent in the province of Canterbury had prevailed throughout England and Wales, any law or statute to the contrary notwithstanding. NOTICES OF NEW BOOKS. A Book of Costs in the Courts of Queen's Bench, Common Pleas, and Exchequer, the Crown and Queen's Remembrancer's Offices, in Bankruptcy, and the Court for Relief of Insolvent Debtors, Conveyancing, and Miscellaneous Matters; in Conformity with the General Scale of Charges allowed on Taxation, and with the Common Law Procedure Acts, 1852 and 1854, and Bills of Exchange Act, 1855. By RICHARD G. DAX, Esq., of the Middle Temple, Barrister-at-Law. London: William Maxwell, 32, Bell-yard, Lincoln's Inn, Law Bookseller and Publisher: Bell & Bradfute, Edinburgh; Hodges & Smith, Dublin. 1856. pp. 589. MR. DAX, the author of this useful work, has possessed considerable advantages in preparing his extensive collection of Bills of Costs, particularly in the Common Law Courts, from the access he had to the valuable precedents of the late Master Dax, and the advice and assistance received from him. preface well explains these advantages. The "In offering this new Book of Costs to the Profession, I beg to state, as briefly as possible, the grounds on which I have relied as qualifications for the task; and I am at the same time anxious to pay a tribute of respect to my late father, my predecessor in the same field of labour, whose knowledge and ability in all matters of taxation, throughout the period of twenty-three years, during which he held the appointment of Senior Master of the Court of Exchequer, are, I believe, universally admitted. "In the last year of his life, it had been his intention to publish a work of this nature, which should embrace every variety of charge arising as well in the old practice, as under the Common Law Procedure Act of 1852, and for this purpose he had deputed me to extract from those daily bills that came before him in his official capacity, such portions as bore relation to the altered scale, after they had passed through the ordeal of taxation; and since his death I have collated from various taxed bills of costs, under the subsequent Act of 1854, those forms which are given in the present book. "Having thus obtained such a reliable and valuable mass of precedent, and, under my father's able instruction, a practical and theoretical knowledge of those principles of taxation on which his decisions were based, in every branch of legal costs; I have undertaken this work, in the hope of rendering an assistance to the Profession, of which they must continually be in need, and which I feel justified in stating, from the care I have bestowed on it, may be relied upon as a safe guide on every matter comprised in its contents. My aim has been, that it shall be found useful in drawing a correct bill of costs for the purposes of taxation, preventing on the one hand the risk of unauthorised charges being inserted, and on the other, guarding against the loss Review: Dax on Bills of Costs.-Apathy of the Profession. that would arise from an omission of those to which the practitioner is entitled." The First Part of the Work comprises the directions of the Judges to the taxing officers, the authorised allowances for the usual costs of plaintiffs, and defendants, and their witnesses, with the official fees payable in the different departments of the Courts. The Second Part comprises the costs on the reduced or lower scale, in actions under £20. The Third Part relates to the costs, both of Plaintiffs and defendants, on the higher scale of allowance. The Fourth Part applies to ordinary proceedings. The Fifth Part relates to costs on postea, new trials, &c. The Sixth contains miscellaneous bills. The Seventh is devoted to costs in the crown office. The Eighth to the Insolvent Debtors' Court and Bankruptcy. To which is added bills in Conveyancy business. The appendix contains various forms of affidavits in support of bills and costs, and gives the following very useful directions in framing affidavits of increase. "In making affidavits of increase there are several facts that are required to be clearly, distinctly, and positively sworn to, without which the charges will not be allowed. The affidavits must be made by the attorney or some clerk having the management or conduct of the cause, or by the client, for any payments that may have been made by him to counsel, or to witnesses or otherwise, during the progress of the action. The place of abode and quality or occupation of the witnesses, the places and distances at which they are subpoenaed, and the distances th y have to travel for the purpose of attending the trial, must be distinctly stated, and also that they are material and necessary witnesses for the party on the trial of the cause; and it must be stated positively that they did attend at the trial, and also that they attended as witnesses in no other cause. * The number of days they are necessarily absent from home on the trial must also be accurately sworn to. If an attorney should attend as a witness it must be stated whether or not he attended at the place of trial as attorney or witness in any other cause, or whether he had or had not, any other business there. It is also proper to state on what day the cause was tried. It is customary and proper to introduce a scale into the affidavit showing the names, places of abode, and quality or occupation in life of the witnesses, the distance they reside from the attorney in the cause, the distance they have to travel to the assizes, and the number of days they are necessarily absent, and the sums of money paid to each for attendance." A tabular form is then given of the names of the witnesses, their occupation, residence, time absent, &c. It is then observed that "In paying the witnesses it should clearly appear how much is paid to each witness; and if they have been paid partly in money, and partly for their tavern bill, it should clearly appear how much of the tavern expenses is applicable to each person. But the better way is always to pay them in money according to the scale of allowance to witnesses; * Or, otherwise, as the case may be. 155 this saves much time and trouble on the taxation of costs, and prevents a loss to attornies, which frequently occurs, from not being able to separate the charge for tavern bill so as to show how much may be applicable to each witness. It is not sufficient to divide the same rateably amongst them, as it might lead to the injustice of paying too little to one witness, and making up an average by payment of too much to another and which can never be allowed. "Whenever any circumstances occur during the progress of the action by which expense is increased or incurred, it must be made distinctly to appear, by the affidavit, that such expense has not been occasioned by the default of the party claiming the costs, but that the same was necessary, under the circumstances, for the purposes of the suit. "It is impossible to frame an affidavit to meet every emergency that may arise, but those introduced into the Appendix will show the usual form upon a common occasion, as also in some special instances of cross issues; that is to say, when some issues are found for the plaintiff and other issues for the defendant in the same action. "It is sometimes necessary, in cases of importance and difficulty, for an attorney in the cause, residing in the country and employing an agent in London, to attend a trial of a cause in London; but to warrant the allowance of such attendance by the Master it must clearly appear, by the affidavit of increase, that such attendance was absolute necessary, and that the trial could not safely be intrusted to an agent. A copy of an affidavit which was used for such purpose will also be found in the Appendix. In case maps or plans are required in any case, the necessity thereof should also appear in the affidavit." APATHY OF THE PROFESSION. WE have lately had occasion in reference to a measure that would probably be highly beneficial, to consider the means of arousing the members of the larger branch of the legal profession to a sense of their interests, and the course to be adopted for improving their status and protecting them from the invasion of their rights and privileges. Perhaps the indifference which prevails regarding their own immediate concerns, may be partly accounted for by the absorbing nature of their avocations in behalf of their respective clients. It is probable, also, that a very large proportion of the practitioners, rely that the various law societies, both metropolitan and provincial, sufficiently bestow their attention on all useful occasions; and therefore, the non-members indolently consider that their aid and assistance are not required. It may also be, that a considerable number are content with things as they are "unaltered and unimproved;" whilst others, notwithstanding existing defects, are in a prosperous state, and have no expectation that the changes which the law reformers propose will confer any benefit on them. Then, lastly, is realised the old saying that "what is everybody's is nobody's business." Some of the fraternity connected with this work, are old enough to recollect that, in the early part of the Chancellorship of Lord Eldon, it was proposed "The profession, I presume it is admitted, could organise itself if it chose; the simple fact, then, is, that the profession has yet to be convinced that it needs organization. "Probably, this is not true of those who are attending this meeting; or why are they here? Pos sand, making in all merely one-fourth of the general sibly, they may even doubt whether it is true of the body. And where is the evidence of their combining together to effect any object for their own advantage, with the single exception, some years ago, of an appeal to Parliament for the repeal of the Annual Certificate Tax? We are not aware of any general union to accomplish a professional object, and even then their success went to a very limited extent. We have no doubt that a large proportion of the members of the Incorporated Law Society have joined it, not for the purpose of advancing their professional interests, as attorneys and solicitors, or with any view to the agitation of measures for the improvement of their status, but because the known respectability of the society reflects some credit on its members, and because its extensive library of reference, its collection of all the parliamentary publications and proceedings, its various courses of lectures, and its other advantages as a place of daily resort for the members, and of study for their articled clerks, render it almost indispensable to every practitioner resident in the metropolis. After all that the most sanguine can propose, the attorneys, however united in their several associations, have not the means or power of combined action to any extent resembling that of the bar. Recollect their social meetings in the Halls of their Inns of Court and at the Bar Mess on their several Circuits, with upwards of a hundred benchers to protect their interests, with the natural leaning of the bench in their favour,-their numerous representatives in Parliament; and last not least, their influence with the press, the editors of which as their leading writers are mostly members of the bar. Great efforts have been made, year after year for nearly ten years by the "Metropolitan and Provincial Law Associations," to induce the attorneys both in town and country to associate in one general body, but hitherto without effect. It appears, indeed, that the association is rather less in number than it was after the first year's exertions. That association not content with their annual reports and the circulars which they frequently issue, have from time to time authorised their able and zealous secretary to make a circuit in the Long Vacation, through a large part of England for the purpose of diffusing a knowledge of the just interests of the profession, and the necessity of joining the association in order to support and bulk of their professional brethren. Let me mention one or two facts out of my personal experience upon the subject. "It has been part of my duty for several years, in the course of each long vacation, to go into the country for the purpose of discussing this subject at meetings of the profession summoned for the purpose. "When I was first preparing for these journeys, I used to write to our local subscribers, and say, in effect, If you will get up a meeting of the profession in your locality; and invite me to attend, I will come down, and we will try and get some new members.' "But I very soon found that if I limited myself to such a communication as that, I should never leave London; for the almost universal reply was, 'The members of the profession here are so apathetic that they do not care to get up a meeting, and will not invite you.' So then I changed my mode of address, and said, 'Dear, Sir, I am coming to your town on such a day; will you be so kind as to oblige the committee by calling a meeting of the 9 That I have found to sucprofession to meet me? ceed much better; but even so, when I have planned to visit a dozen towns, I think myself fortunate if meetings are called in two-thirds of that number. When no meeting is called, I still go to the town, and personally wait upon all the leading members of the profession; and when I have succeeded in explaining that I am not an itinerant canvasser for a frevery Life Insurance Company-which it is quently taken for granted I am-I usually receive a ready promise that the papers I leave shall be carefully read; frequently, however, accompanied by the intimation that, for some reason or another, it is not probable that I shall be afterwards requested to add to my list of members. Sometimes the gentleman I call on is old, and thinking of retiring from the profession; sometimes he is young, and cannot yet afford a subscription. Sometimes societies are of no use whatever-all humbug; sometimes they are of great use, certainly, and all ought to join, and as soon as everybody else has done so, he will too. Sometimes a consultation is necessary with 'my senior partner, Mr. Jorkins.' The most common answer of all, however, is undoubtedly some expression of the following idea: 'You ask me to pay you a guinea; show me that at the end of the year shall not be a guinea the poorer, and I will do so.' Sometimes, however, I find gentlemen who, though they have not taken the trouble to find out the society, yet join it as soon as it is thus brought, as it were, into their offices. "When, however, a meeting is called, there are still several dangers to get over. Sometimes no one attends; sometimes those who attend listen to what I say, and reply, that they will think over the mat I |