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Illegal Commitment under the Small Debts Act.
211 solvent petitioner being left to select which not exceeding forty days, to the common system he most approves of, and the court gaol, &c. having no voice in the selection.
A person named Townley, having reWe are glad to observe, from various ar-covered a judgment for 191. 19s. in the ticles which have appeared in the daily Sheriffs' Court of London, against Thomas prints, that this measure begins to attract Kinning, summoned him under the section public as well as professional attention, in above referred to, before Mr. Bullock, the some degree proportioned to its import- judge of the court, and it appearing to that ance; and we still indulge the hope, that learned gentleman that the defendant was its glaring defects and omissions may be in a situation which enabled him to pay the discovered in sufficient time to prevent the debt and costs by instalments, an order was mischievous consequences to be appre- accordingly made, in the usual form, for hended from giving it precipitately and in- payment by instalments of 21. per month, considerately the force of law; and that and the defendant baving made default in the whole subject may be allowed to stand the payment of the first instalment, this over until an opportunity arrives for mature same learned judge made an order for lie deliberation.
commitment to Whitecross Street prison,
for the space of forty days from the time ILLEGAL COMMITMENT UNDER of his arrest.
The gaoler's return to the habeas corpus THE SMALL DEBTS ACT.
set forth the warrant of commitment by the
judge of the sheriff's court, and it was The case Exparte Thomas Kinning, urged on behalf of the prisoner, that the brought under the consideration of the commitment was bad, because it did not Court of Queen's Bench, and subsequently appear on the face of the warrant that the of the Court of Common Pleas, by habeas defendant had been summoned previous to corpus, during the last term, affords an- his commitment to show cause why he other remarkable example of the total should not be committed. It was conceded, absence of ordinary foresight exhibited by that is the order for committal was to be those who undertake the duty of framing regarded in the nature of a judicial promodern acts of parliament.
ceeding, it was invalid, because it did not The statute 8 & 9 Vict. c. 127, “for appear that the defendant had an opportubetter securing the payment of small nity of being heard aganst it; and the condebts,” our readers will recollect, passed tention was, whether the judicial discretion towards the close of the session of 1845, was not completely exercised when the and was generally understood as intended defendant came before the judge on sumto afford a compensation to the smaller mons in the first instance and the latter elass of traders, for the protection of which ordered payment of the debt by inthey were suddenly deprived, by the act stalments. of the previous session, abolishing arrrest The Court of Queen's Bench was divided in execution for debts under 201. The upon the question thus raised ; Lord first section of the Small Debts Act pro- Denman and Justice Erle being of opinion vides, that a creditor obtaining judgment that the return was sufficient, whilst Pattein respect of a debt under 201., may sum- soni, J, and Coleridge, J., were of an oppomon the debtor before a Commissioner of site opinion. Lord Denman and Justice Bankrupts, or the judge of any Court for Patteson both remarked upon the looseness the Recovery of Small Debts, within the and uncertainty with which the act was jurisdiction of which the debtor may reside, drawn up, and the latter pointedly observed, and on the debtor appearing he may be that the person who framed the statute examined as to his property or means of evidently had forgotten that when a debt payment, and it shall be lawful for such was ordered to be paid by instalments, the commissioner or judge to make an order on period fixed for payment of the last instalthe debtor for the payment of his debt by ment might be at a considerable interval instalments or otherwise, and if he appears after the making of the order, and that to have the means of paying the same by many circumstances might arise in that ininstalments or otherwise, and shall not pay terval which would enable the debtor satisthe same at such times as the commissioner factorily to account for his default. As or judge shall order, then it shall be lawful the Court of Queen's Bench was equally for such commissioner or judge to order divided on the matter, the prisoner was such debtor to be committed for any time, remanded by that court; but the case was
212 Illegal Commitment under Small Debts Act.-House of Commons Costs Taxation Bill. brought immediately afterwards, by habeas serting legal principles, because their ap: corpus, before the Court of Common Pleas, plication might be attended with some inand the judges of that court unanimously convenience. In such cases it is the proagreed with Justices Patteson and Cole- vince of the legislature to find a remedy ridge, that the committal was bad, mainly for the evil. upon the ground disclosed in the judgment of those two learned judges, that the order
THE HOUSE OF COMMONS COSTS to imprison was a judicial act, involving
TAXATION BILL. two questions,- 1st, whether the defendant ought to be imprisoned ? and 2ndly, if he ought to be imprisoned, whether it should
This bill has been amended in the folbe for forty days or any shorter period ? lowing particulars :It was not consistent with the general prin- 1. The retrospective provisions are omitciples of law that questions of such import- ted, and it will now operate only on the ance, in which the subjects' liberty was business of future sessions of parliament. concerned, should be determined without 2. As the bill was originally brought in, affording the party more immediately in- a taxation was to take place in every in. interested an opportunity of being heard. stance. The client, however well satisfied Upon these grounds the return to the with his solicitor, was compelled to incur habeas corpus was held to be insufficient, the expense of taxing his bill. This has and the prisoner was ordered to be dis- been altered. charged from custody.
3. The authority to the Speaker to apJustice Erle, in his judgment, adverted point a taxing officer remains, with power to the importance of the question raised in to the Speaker to prepare a list of charges “ Kinning's case,” inasmuch as a provision to be the utmost charges thenceforth to be was to be found in the County Courts Act allowed upon any such taxations in respect precisely corresponding with the first sec of the several matters therein specified. tion of the 8 & 9 Vict. c. 127, and if the But the following addition has been made : committal in “ Kinning's casc was bad, -" Provided always, that the said taxing committals by the order of the judges of officer may allow all fair and reasonable the County Courts, would be open to a costs, charges, and expenses, in respect of similar objection. As a majority of six any matter not included in such list." judges to two have determined that the
4. The power to call for books and committal in “Kinning's case” was in- papers is also retained. But the power to valid, it follows that when a judge of the take a general account has been expunged. County Court orders the payment of a 5. No application to tax can be enterdebt by instalments, and there shall be a tained after verdict, nor after the expira. default of payment, the judge will not be tion of six months from the delivery of the authorised to make an order for the im- bill of costs. But the Speaker is emprisonment of the defendant, until he is powered, after the expiration of the six again summoned to show cause why he months, if he shall think fit, on receiving a should not be imprisoned, and as we have report of special circumstunces from the already seen, the summons in such case taxing officer, to direct a bill to be taxed. will not be effectual, unless it has been
6. An appeal from the taxing officer is personally served on the defendant. There given by memorial to the Speaker within is no doubt that the effect of this decision 21 days after the taxing officer's report; and will be, to diminish the efficacy of the the Speaker may refer the repori back to cheap and summary method of adjudication the taxing officer. No other appeal is in respect of small debts contemplated by allowed. the late acts of parliament. We cordially
7. The report of the taxing officer, with concur, however, in the sentiment so well the Speaker's certificate thereon, is to be expressed by Justice Coleridge, in Ken- conclusive as to amount, and to have in any ning's case, that a deliberate and careful action the effect of a warrant to confess investigation must always necessarily be judgment, unless the party charged shall attended with some expense, and that the have pleaded that he is not liable, in which courts ought not to be deterred from as- case the certificate is to be conclusive as to
the amount which shall be payable by the • See 9 & 10 Vict. c. 95, sections 98 to 101 defendant in case the plaintiff sball recover inclusive.
a verdict. b Vide Leg. Obe, vol. 33, p. 459.
Many of the objectionable provisions in Review : Toulmin's Statutes and Orders relating to Practice and Pleadings in Chancery. 213 the original bill have thus been removed ; perly omitted all the orders of a temporary but the Speaker is not limited in his choice nature, and (except in a few instances) the of a taxing officer : he may appoint a bar- orders relating to the suitors' funds, as rister, or an attorney, or an officer of the being of no practical utility. All the other house, or any one else. There is no doubt orders will be found in the appropriate that the right honourable gentleman will parts of the work; but such of them as endeavour to make a good selection : we as have been discharged expressly are hope he will succeed, and that justice will placed in an appendix. It is observable, be done both to client and solicitor.
however, that, besides the orders so dis.
charged nominatim, all other orders and NOTICES OF NEW BOOKS. parts of orders inconsistent with the orders
of the 8th May, 1845, were discharged by
the first order of that date. Such inconThe Statutes and Orders relating to Prac- sistent orders are included in the body of
tice and Pleading in the High Court of the work, as the compiler was unwilling to Chancery, from 1813 to Easter Term, take upon himself the responsibility of 1847, classified according to the respective omitting any orders or parts of orders on proceedings in a suit ; with a Time Table the ground of their coming within that and Notes. By Samuel Simpson ToulMIN, Esq., of Gray's Inn, Barrister-at
This is a difficulty which the compilers Law. London : Sweet. 1847. Pp. of books of practice must unavoidably en388, xxii.
counter, and we should have been glad if Mr. Toulmin observes in his preface, Mr. Toulmin would have endeavoured to by way of apology for the publication of a overcome it. We hope he will in a new collection of statutes and orders relating to edition make the attempt.
It would Chancery practice, in addition to the works have been desirable, in making general already in existence, that the utility of the orders so extensive as those of May, 1845, present work consists in the arrangement, if the julges could have satisfactorily emby which all the modern enactments and bodied therein all the previous orders inregulations now in force are classified under tended to be retained, and thus have the separate heads to which they are' ap- formed a code of practice, repealing all plicable ;-each class, where necessary, former orders. The time will come, we being divided into sections and subdi- trust, when the judges will direct some visions, so that all recent alterations affect- conpetent officers to prepare such a code; ing any particular point may be seen at and the present and other similar works one glance.
will be of great service in the execution of · This is an exceedingly useful method in the task. a work on the practice of the court, for the The following is a summary of the saving of time, by readily finding whatever contents of the volume :may be required, is of the greatest moment both to counsel and solicitors actively en
1. General orders. 2. The judges of the gaged in the midst of pressing business. court. 3. The officers of the court. 4. The
records of the court. 5. Solicitors. 6. Parties The convenient arrangement which Mr.
to the suit. 7. Informations and bills. Toulmin has pursued was probably sug- Service of notices and other proceedings. 9. gested to him during his practice as a so- Subpæna. 10. Service of copy bill. 11. Conlicitor, and which he now, on his call to the tempts. 12. Pro confesso. °13. Appearance. bar, successfully brings to bear in the 14. Traversing note. 15. Demurrers and Pleas. present work.
16. Answers and exceptions for insufficiency: The collection of statutes commences
17. Preliminary inquiries. 18. Dismissal of
20. Evidence. 21. with the act 55 G. 3, c. 24, by which a Vice- bill. 19. Joining issue.
22. Decrees Chancellor of England was appointed. The Setting down and hearing causes.
23. Rehearings and appeals. statutes prior to that time are deemed by 24. Issue at law. 25. Proceedings in the Mr. Toulmin of little importance in his Master's office. - Reports and exceptions present work. The orders comprised thereto. 26. Motions and petitions. 27. In. within it commence in 1814. He considers junctions and proceedings in the nature of inthat the earlier orders are for the most junction, including stop order. 28. Receiver. part obsolete and inconsistent with the 29. Abatement and revivor. 30. Exceptions modern practice of the court, and he has thereon. 31. Election to proceed at law or in
for scandal and impertinence, and proceedings therefore adverted to them only so far as equity. 32. Cross bill of discovery, 33. Time. necessary in the notes. · He has also pro. 34. Costs. 35. Fees 36. Transfer of equity 214 Forgery of a Writ by an Attorney.- Parliamentary Report on Legal Education. jurisdictions to the Court of Chancery. 37.
LEGAL EDUCATION REPORT. Expenses of draining settled estates. 38. The sale and purchase of lands for public undertakings. 39. Joint-stock companies.
ATTORNEYS AND SOLICITORS. The first Appendix contains statutes abolish- We last week quoted from the report of ing offices of the court. The second comprises the commissioners containing their concluorders discharged, superseded, suspended, or sions with regard to Barristers, (see p. 188, amended by other orders.
ante.) We now proceed to the Solicitors. Under each head of the work Mr. The committee observe, that they have Toulmin has quoted the statutes chrono- been treated more as mechanical agents for logically, and then the orders either chro carrying out the practical processes of the nologically or according to the usual pro- profession; and as the future chemist and ceedings in a suit; and whenever a section of apothecary is bound an apprentice, so is a statute or an order could be conveniently the future solicitor articled as a clerk, for divided, so much of it only is inserted as is the purpose of learning what has been too applicable to the particular subject, but in much considered in both cases as matter general the whole of each section or order of mere manual dexterity. Hence, whatis contained in some part of the book, and ever higher or more comprehensive inmay be found by referring to the Tables of struction he has been enabled to acquire, Statutes and Orders. Each section and he owes it almost exclusively to himself. order is given verbatim, except in some The aid he has received from bench or instances where an abstract was considered bar amounts very nearly to nothing. Of sufficient, or where a reference is given to late, these individual and isolated efforts another part of the work; and in all such have taken a more co-operative character, cases the distinction is apparent, or is de- and societies have been founded and supnoted by brackets, and is also pointed out ported by the body itself, for the joint in the Tables of Statutes and Orders; but purpose of watching over conduct and proformal recitals, &c., have generally been viding education for this branch of the proomitted.
session. To each of these particulars it
will be necessary to advert more speciFORGERY OR ALTERATION OF A WRIT fically. BY AN ATTORNEY.
Originally, the attorneys were required to
belong to the Inns of Court, or the Inns of An attorney has been committed for trial by Chancery: There is a rule as late as the reign the magistrates of Sheffield, upon a charge of of Queen Anne,' . *requesting them to come having forged a writ.
to commons. • After that time the Inns apIt appears that the attorney had been in- pear to have made a number of regulations; structed in November last, by the trustees of a whether the numbers entering for the bar benefit club, to issue a writ against a person who were too great, or what the cause of it was had failed to pay the money which he had bor- I am unable to say, but of late years, within rowed of the club. Before the writ had arrived, the last 40 or 50 years, a rule has been made the defaulter made arrangements for payment; at all the Inns of Court, prohibiting any genbut the attorney said that he had received the tleman studying for the bar, who is an attorwrit on the day following that on which the ney, or under articles of clerkship. Since arrangements were made, and he was conse- that time they have ceased to belong to those quently paid 258. costs. When the sum was Inns, except for the purpose of holding champaid, he was required to deliver the original bers. The Inns of Chancery are at present writ; and with some reluctance he handed over five: Clifford's Inn, New Inn, Clement's Inn, a writ in which several erasures were discern- Barnard's Inn, and Staple's Inn. Thavies ible. The writ was suspected to be a forgery, Inn and Furnival's are no longer societies, the and the attorney was afterwards apprehended.' property is in the hands of individuals.
A clerk of the Queen's Bench Office, Lon- The Inns of Chancery are now entirely under don, stated, at the last examination, that no
the government of attorneys, though this præcipe for such a writ had been issued in No does not appear to have been the original convember last; and he believed that the præcipestitution of the society. Their funds are infor the writ produced in court had been issued considerable, not much more than sufficient to in January, 1846.
pay the expenses of their establishments, deThe prosecutors offered to abandon the pro- rived principally from the rent of chambers: ceedings, if the attorney would produce a letter many of the chambers, it appears, have been from his London agent enclosing the writ, or purchased by individuals; the proceeds of such otherwise show that he had really received as remain in the hands of the society, with fees it; but he was unable to offer any proof what- of admission, constitute their entire income.
It is now quite clear how far the Ions of Chancery had for object the communication of in
Parliamentary Report on Legal Education
215 struction, or the acquisition of legal knowledge. Town discretion; and therefore, anless he qualiThere have been occasional lectures at some of fies himself for that purpose, nothing will be the Inns of Chancery as well as at the Inns of put into his hands beyond what any person Court. The Inns of Court send to some of could do, namely, copying. There is no attendthem a reader, who delivers, it appears, only ance in university, college, or any other instione or two lectures, not to all of them, but to tution, nor any course of legal lectures, insisted some of the minor inns only; but this is not on: his very attendance at the courts of law is intended for purposes of instruction, but merely merely in execution of duties of a purely formal in compliance with a matter of form, 'to enable nature imposed, nor is any for his own use, by the reader himself to be qualified in his progress the solicitor to whom he is apprenticed : so to the bench.' It evinces certainly, as similar that, without exaggeration, it may be stated, forms in the Inns of Court, traces of an earlier that, as far as any course of legal education is application of these inns, as well as the Inns of in question, the apprenticeship of the articled Court, to purposes of instruction; but the clerk is generally occupied in very little more reality, if it ever existed to any extent, has long than the learning and applying of technical since passed away, and no instruction of any terms, unless indeed hy individual exertion he kind has been given for a great many years. may qualify himself for duties of a bigher The only use of these inns appears to be the order. Some sort of check has been sought to continuance of commons and chambers, which be put to this neglect by the enforcement of a latter, however, are not confined to attorneys, final examination previous to, and as the conbut may be held, in the quality of tenants at dition for, admission to the profession ; but least, by strangers.
this examination, either as to quantity or quality “As a substitute for this deficiency of in- of knowledge required, mode in which it is instruction in the Inns of Chancery, or rather as sisted on, or precision with which it is tested, a necessary accompaniment to all theoretic in- appears to be altogether inadequate to the struction, must be considered the knowledge purposes for which it is presumed it was deof the practical part of his profession (no doubt signed. Six months previous application would, of great importance,) which it is intended the in the opinion of Mr. Payne, be quite sufficient solicitor should acquire, through the system, to enable an ordinary student to pass. The and during the period of apprenticeship.' This questions refer to forms and principles, though system, as now carried on, is analogous to that the former considerably predominate. The pursued by barristers when attending on con- examination is wholly written, and seldom sts veyancers, special pleaders, and equity draughts- for more than a day. There is no inquiry made men; with this difference, that in the case of from the candidate as to previous study, bethe solicitor such course is compulsory by act yond the mere query, unattended with any of parliament, in order to qualify for admis- consequences, of "What books have you read, sion to the profession; in the case of the bar- and what lectures have you attended nor is rister, though usual, altogether optional. The any notice taken of the more or less degree of period required by the act to be spent under application evinced during his apprenticeship.b articles with the solicitor is five years. Pre. So far, then, as the mass is concerned, no viously to admission to the office no exami- guarantee whatever exists for that competency nation is necessary; no particular amount of which the public have a right to demand. Á knowledge of any description is required, it ap- certain number, no doubt, about one-tentii, pears, by the bench or by the solicitor. The endeavour to supply these deficiencies, by atcourse of studies pursued in the office is en tendance at barristers' and conveyancers' chamtirely left to the choice of the pupil; the prin- bers, for about one year of their apprenticeship; cipal may direct, but cannot in the least degree but as this exempts them from all duties to the compel any course to be pursued. Indeed, it solicitor, it must be with his consent, either is a general complaint on the part of the articled stipulated for in the articles themselves, or obclerks themselves, that very little attention is tained by subsequent arrangement. Solicitors, paid by the solicitor to the direction of their in general, act liberally in this particular, and studies ; in fact, it can scarely be expected this concession, if so it may be called, goes from solicitors in any degree of practice; their farther to secure to the pupil the acquisition of time is so much occupied with the duties of some sort of legal principles than any other their profession that they can scarcely take up part of their course. The profession, generally, the points which are requisite for looking after have so felt these defects, that, with a very their education. There is no prescribed course laudable zeal, seconded by much discretion of occupation during the day : the solicitor may and intelligence, they have endeavoured, under perhaps direct a certain draft to be drawn, or a different forms, to provide, by individual certain paper to be copied; and if there be no- exertion, a more efficient course of instruction thing of that kind going on, the articled clerk for the young pupil; with this view, and espeis supposed to read. Even the drawing up of cially in consequence of the rule made at all the papers, which presupposes some sbare of in- Inns of Court, within the last 40 or 50 years, tellectual exercise and application, is altogether prohibiting any gentleman studying for the bar casual.; it very much depends upon the articled who is an attorney, or under articles of clerk-clerk himself; he is almost entirely left to his
b See Mr. Bayne's evidence. See Mr. Maugham's evidence.
See Sir George Stephen's evidence.