« AnteriorContinuar »
New Statutes effecting Alterations in the Law.-Drainage of Lund. faction of the commissioners that the part so security, to any person who may have advanced executed will, independently of the part remain- or may agree to advance monies for the execuing unexecuted, bé durable and effectual, and tion of the works therein mentioned, and such produce an improvement in the yearly value of assignment may be made by an endorsement the land exceeding the amount of the yearly on the provisional certificate in the form set charge which can be made under the said act forth in the schedule to this act; and such asin respect of such advance,
signee shall be entitled to claim and receive, 7. Time for completion of works.—That no upon and in respect of such provisional certifiprovisional certificate shall be issued under the cate, such advances as the owner by whom the said act unless it shall be shown to the satisfac- assignment shall have been made might have tion of the commissioners, or security be given claimed and received in case such assignment to their satisfaction by the party applying for had not been made, subject nevertheless to the the advance, that the works for which the ad. right of the owner as against such assignee to an vance is to be made may be completed within account of the advances so received, or of so five years from the date of the certificate; and much thereof as shall not be owing on his sethe commissioners shall annex to every pro- curity; and, subject to the rights of assignees visional certificate to be issued under the as aforesaid, each advance shall be made to the authority of the said act a provision that all owner by whom the works in respect of which works in respect of which they shall certify an advance may be made shall appear to the their opinion that an advance should be made commissioners to have been executed, and who shall be completed within five years as afore- shall have been named in the certificate acsaid, and no provisional certificate shall be cordingly, or to the legal personal representative issued upon any application or applications by of such owner; and where an aggregate adthe same owner for any larger sum than ten vance shall be made in respect of works which thousand pounds: Provided always, that in shall have been in part executed by an owner case it shall be shown to the satisfaction of the whose ownership shall have ceased, and in part commissioners, or security be given to their by a subsequent owner, the advance shall be satisfaction by the party applying for the ad- apportioned by the commissioners between the vance, that the works for which the advance is owners in such manner as by the report of a to be made may be completed within three years surveyor or assistant commissioner, or otherfrom the date of the certificate, and that it shall wise, shall appear to the commissioners to be also appear to the satisfaction of the commis- reasonable, having regard to the sums expended sioners that such works are to be executed by the successive owners, and such successive within any district in Scotland in which distress owners may be named in the certificate acprevails, and that such works may be executed cordingly. by the labour of the inhabitants of such district, 10. As to the words “ owner of lands.”—That it shall and may be lawful for the said commis. the words “owner of lands" shall, as to lands sioners in such case, on the application of any in Scotland, include any corporation. owner, and with the sanction of the Commis- 11. This act to be deemed part of the recited sioners of her Majesty's Treasury, to issue a act. That this act and the recited act shall be provisional certificate or provisional certificates construed together as one act, and the profor such larger sum or sums as they in their visions herein contained shall be deemed to exdiscretion shall see fit, subject to a provision to tend to all proceedings and matters already be annexed to such last-mentioned certificate s taken and done in the same manner as if such that such works shall be completed within the provisions had been originally inserted in the said period of three years.
said recited act. 8. Form of certificates, and their effect.- 12. That this act may be amended or repealed That certificates and provisional certificates by any act to be passed in this session of parunder the said act may respectively be made in liament. such form as the commissioners shall think ft; and every such certificate and provisional certificate respectively, when sealed with the seal of the commissioners, shall for all
purposes be conclusive evidence that all the applications and Form of Assignment of Provisional Certificate. acts whatsoever which ought to have been made I A. B. of
in consideration of and done previously to the issuing thereof have the sum of pounds paid to me (or of been made and done by the persons authorized the advances which may be made to me] by to make and do the same, and that an advance C. D., do hereby assign to the said C. D. the may be issued by virtue of such certificate, and within written provisional certificate, and all that the land shall become charged in respect of my right and interest in and to the advances such advance; and no such certificate or pro- which may be made in virtue thereof, to the visional certificate shall be impeached by reason intent that the said C. D., his executors, adof any omission or mistake therein.
ministrators, or assigns, may claim and receive 9. Provisional certificate may be assigned.- such advances, and may thereout retain the said That any owner of land to whom a provisional sum of
with interest for the same certificate shall have been issued under the said at per centum per annum [or such sums act, or any subsequent owner of such land, may as may be advanced to me by the said C. D. as assign such provisional certificate, by way of aforesaid, with interest at
SCHEDULES TO WHICH THIS ACT REFERS.
Law of Attorneys.—Jurisdiction of the Ecclesiastical Courts.
97 per annum from the time of the respective ad- offices : doing, on the one hand, what may vances thereof.] In witness whereof I have hereunto set my interests, on the one hand, and on the other,
be just, (aye and liberal,) towards vested hand, this
what may be due to the public and the
right administration of justice. LAW OF ATTORNEYS.
As an indication of “coming events,"
promoted by a potent body, the Dissenters, DEFECTIVE BILL OF COSTS.-NAME OF
we give the following petition to the House COURT IN WHICH BUSINESS DONE.
of Commons, printed in the votes and proWe beg to call the attention of our the officers and members of “ the Society
ceedings of the 6th May. It comes from readers to the case of Ivimey v. Marks, for the Abolition of Ecclesiastical Courts,' reported in this number, (p. 107, post,) by and stateswhich it is decided, that “ Where an attorney's bill contains charges
“ That ecclesiastical laws and courts in this for business done in the Court of Chancery influence of Roman Pontiffs, whose power they
country had their origin in the authority and and also in a common law court, it should mention each court in which such business was this separate and, in many respects, independ
were designed to consolidate and retain. That done. Therefore, where a bill stated that some of the charges were for business done in the
ent branch of jurisprudence has produced very Court of Chancery, and it did not appear in many national evils, which induced the legislawhat court the other business was done, except ture, at the commencement of the Reformation, that the items showed that it must have been to pronounce the constitutional laws of ecclesia in one of the superior common law courts. astical courts, “much prejudicial to the PreroHeld, insufficient, under the 6 & 7 Vict. c. 73." gatives Royal, repugnant to the laws and
statutes of this realm, and overmuch onerous This decision requires the especial at- to the subjects ;” but that, notwithstanding tention of attorneys and solicitors. If it this condemnation, and the efforts made by be well-founded, the act of 6 & 7 Vict. c. and Elizabeth, for their abolition, they remain
parliament, in the reigns of Edward the Sixth 73, will require amendment. No doubt, to this day essentially unchanged. an attorney ought to deliver a bill of costs
“ That these courts are, by charter of William in all respects in an accurate form. So the Conqueror, declared to be" for the governought a surgeon or apothecary or a trades- ment of souls,” under which designation they man. But, whilst it may be proper that an claim and execute a jurisdiction over matters attorney should not be allowed to recover in which the social, moral, and religious intefor such part of his bill as may not be pro- volved; and that unrepealed statutes define or
rests of every member of the State are in-perly stated, either, as in this case, from the declare this jurisdiction (embracing, as it does, omission of the name of one of the courts the laity) to be such as, in the judgment of in which part of the business was done, or your petitioners, is alien to the proper authofor other defects—we cannot understand rity of any human tribunal, derogatory to the the justice of nonsuiting him for the whole body of persons thus armed with the means of The client should be required to make his persecution, opposed to the free spirit of our objection by plea, if it turn on the form of national institutions, and utterly at variance the bill, and there should be power to
with the pure and beneficent principles of the
Christian religion. amend on payment of costs : or, the client
“ That a royal commission was appointed in should take out a summons requiring the 1830, “to make full inquiry into the practice attorney to amend his bill according to and other things connected with ecclesiastical the practice of amending particulars of courts, and further to inquire into the jurisdicdemand. There seems to be a failure of tion of such courts, and whether such jurisdicjustice.
may be conveniently and beneficially taken away or altered.' That this commission made
their report in 1832, but that no legislative reJURISDICTION OF THE ECCLE- medy for the bulk of the grievances it reported SIASTICAL COURTS.
to exist has yet been provided.
“That ecclesiastical courts, though profes
sedly spiritual, do yet exercise jurisdiction in There appears but little doubt that the several matters exclusively civil, and especially courts at Doctors' Commons will be re- the administration of testamentary and matrimodelled consistently with the reforms monial laws, than which there is no departwhich are taking place in all the ancient ment of jurisprudence of more vital and daily courts of the realm. The difficulty will be but which the royal commissioners report, it
importance to every class of the community, here, as it was in the Court of Chancery, is impracticable to have efficiently administered to make due arrangements for abolished in diocesan courts.'
Jurisdiction of the Ecclesiastical Courts, " That the evils arising out of their testa- their own decrees, persons are compelled to mentary jurisdiction are manifold, and of grave do that in several courts which they ought national importance, among which your peti- to be able to do in one suit, and in one tioners include:
court, which not being possible, while these The usurpation of civil power by spiritual per
ecclesiastical courts exist, great reproach sons; the royal com rission adinitting that and discredit are cast upon the wisdom and these courts 'in administering testamentary equity of English jurisprudence. law, exercise a juri-diction purely civil, and “That the matrimonial jurisdiction exerin name only ecclesiastical.'
cised by ecclesiastical courts occasions serious The want of safe and convenient registries for national mischiefs, as the variety of courts en
wills, the present depositories in cathedrals courage litigant parties to institute a great or rooms, the private property of ecclesiasti- number of appeals; which an experienced cal persons or corporations, being in nearly officer in these courts declared to be a greater all instances unsafe and inconvenient.
evil than is found in the whole practice of the The danger of titles to real and personal pro- law. Your petitioners believe that if this juris.
perty being destroyed, wills having by the diction were taken away from the ecclesiastestiinony of officers in these courts, been tical and placed under the common law lost or clandestinely removed;' and the ec- courts, considerable progress would be made clesiastical authorities who have charge of towards obtaining such other legislative remethese important national records having re- dies as would prevent the discordance between fused, in some instances, to provide, even at the English and the Scotch laws of marriage, a moderate expense, and at the earnest en- by which an heir deemed legitimate in Scottreaty of their own officers, suitable and safe land has been pronounced illegitimate in Engdepositories for them.
land. The absence of any direct and efficient powers “That the mixed jurisdiction of the ecclesi
for enforcing the payment of legacies, and astical courts, relating to causes partly civil, distribution of intestates' effects, the courts and partly spiritual, is also a negative grievof equity not having any original jurisdiction ance. Among the evils which your petitioners in testamentary matters, but being bound to would enumerate are suits for defamation, adopt in questions of legacy the rules which which have led to the imprisonment of many obtain in the ecclesiastical courts, while
persons for the non-payment of costs. those latter courts can do nothing more than require the exhibition of an inventory of the Suits for tithes, and other ecclesiastical dedeceased's effects, in order to enable parties
mands, that were originally free gifts; into prosecute their rights before another and cluded in which are Easter offerings, mortua civil tribunal.
aries, oblations, and church rates, which The prerogative of the Archbishop of Canter- have long been a fruitful source of parochial hury, who, to sustain his spiritual supe
strife, and which inflict serious wrong upon riority, is possessed of the exclusive right of
many British subjects. granting probate, or administration in all Suits for compelling persons to become churchcases where the deceased has left five pounds
wardens, which, though the office of churchpersonal property in two places, having sepa
warden is annual, involve parties in litigarate ecclesiastical jurisdiction; a prerogative
tion which may stretch over several years. which often compels persons to take out a Suits for brawling and chiding in churches second probate or administration, the first,
and churchyards. when taken out in a wrong court, being And, suits for laying violent lands on the legally void, by which means, serious wrong,
clergy, by which an ancient distinction is inconvenience, and loss are frequently in
retained between the civil rights of the clergy flicted, and gross injustice is practised.
and laymen. The necessity of applying to different tribunals, " That these courts supply archbishops,
to try one and the same will, according as it bishops, and other persons with abundant disposes of real or personal estate, so that opportunities of providing their family relain the ecclesiastical court the maker of a tions with lucrative and sinecure offices, paid will has been declared insane in disposing of by fees exacted from the public for probates, his goods, the same instrument in the civil marriage licenses, and other charges, the court being pronounced the act of a sane greater part of which fees are obtained by testator, as regards his land.
their own authority, and augmented or varied The anomaly by which a will devising land is at pleasure.
regarded legally complete in itself, but is That the power possessed by archbishops held insufficient when disposing of personal and bishops to appoint the judges, advocates, property, until it has received by grant of and proctors in these courts, and, at their pleaprobate the sanction of the church, a dis- sure to remove them, places judicial persons tinction repeatedly, by the highest legal au- in a state of dependance derogatory to the thorities, declared an absurdity and a judicial authority of a court of law, gives to the church wrong.
a power not now possessed by the crown, and The aggravation of these evils by the fact, that enables ecclesiastical persons to exert an influ
the ecclesiastical courts not having the ence unknown to the constitution in analogous power in any testamentary suit to enforce cases.
THE NEW COUNTY COURTS.
Jurisdiction of the Ecclesiastical Courts.-Selections from Correspondence. “That the absence of trial by jury, the secret courts under the direct authority of the mode of taking evidence, and the number of crown ; and that their powers, which in clerical judges, and judge surrogates, combine
any way interfere with the free exercise with other causes to render spiritual courts of the rights of conscience, may be wholly objects of a deeply-seated and long-entertained national dislike.
abrogated. “That the practice of the ecclesiastical courts is restricted to such persons as the SELECTIONS FROM CORRESPON. archbishop or bishop may choose to select,
DENCE. and as swear, at the time of admission, that they believe the thirty-nine Articles, and will yield obedience to their diocesan, by which means Protestant dissenters, Roman Catholics, To the Editor of the Legal Observer. and others, are excluded as practitioners,--an invidious and hurtful exclusion, which not work, I have observed your judicious remarks
SIR,—Being a regular subscriber to your only practically frustrates the intention of the
upon the New Small Debts Act and Rules, but legislature, when it abolished religious tests as I think you have not noticed rule 16, which qualifications for offices of trust or honour, but
appears to me likely to prove very oppressive denies to British subjects the right of availing upon the suitors. That rule, coupled with the themselves of the legal talents of the whole 16th, only gives the plaintiff two days to serve English bar. "That the system of ecclesiastical jurispru
the required notices, if he elects to accept the dence of which your petitioners complain, be money paid into court. Now, here is a district comes still more injurious to the public good westwards of the place where the court is held,
extending 12 miles northward and 12 miles through the existence of the courts called and where the clerk resides, and I have a client *The Peculiars.' That of these there are nearly living at one extreme point likely to sue parties three hundred; many of them have their juris- at the other end of the district; how is he to diction confined to single parishes, --some have the extent of their jurisdiction a subject special messenger, at a great extra expense ?
serve the notice upon the defendant except by of dispute,-more than seventy are now in lay Again, the notice of payment into court is, by hands, -while a very considerable number per- the 82nd sect. of the act, to be sent by the clerk tain to deans, prebends, rectors, or vicars, to the plaintiff by post or messenger; most proand many of them possess and exercise the bably he will send it by post if the plaintiff repowers of the superior ecclesiastical courts ; sides 12 miles from his office; then follows the and all of them give rise to such evils, that chance that plaintiff
' may be from home, and the royal commissioners suggested their entire his letters remain unopened until his return, abolition, as they were not aware of any one
or he may
be a small tradesman in a country benefit which could result from their continu- place where there is no post, and he only reance.'
ceives his letters once a week when he goes to • That your petitioners would respectfully the market town, and in either case he has to express to your honourable house their em
the costs of the defendant's appearing, alphatic conviction that the ecclesiastical laws, though perfectly ignorant of what has taken as administered in ecclesiastical courts, are essentially opposed to the full and equal en
A SUBSCRIBER. joyment of the rational rights of religious liberty. That the law now recognises the equal rights of all persons, of whatever religious persuasion, to act upon their own convictions of Before the passing of the act, A. sues B. in truth and obligation without damage or moles- the superior courts for a debt under 201.
B. tation; but, notwithstanding this, that the allows judgment to go by default, a fi. fa. is ecclesiastical courts still assume that every issued for the debt and costs, but nothing is person in the state belongs to, and is bound found whereon to levy, (the judgment was not to adhere to one creed and one system of re- obtained till after the passing of the act). Can ligious ordinances, and that they are clothed A. cite B. to the new courts for the judgment with powers to punish all persons who do not debt, (which includes the costs,) as well also conform to one religious standard. Your pe- those costs incidental to the levying ? titioners respectfully say that, for the state to
E, H. allow its supreme authority to be thus employed by spiritual persons, is derogatory to
ATTORNEYS' CERTIFICATE DUTY. the authority of the civil government, detrimental to the interests of religion, and a moral To the Editor of the Legal Observer. wrong.”
SIR,-Allow me to suggest, through your The petitioners therefore pray that all widely circulated periodical, to those members interference of ecclesiastical courts with of the profession who are interested in the abo
lition of this unjust tax, that they should ensecular matters may be entirely abolished ; deavour to obtain a promise from the candidates that the civil jurisdiction they now exercise at the approaching general election, to support may be transferred to, and exercised by, a repeal of it, in the event of their return to
SMALL DEBTS ACT.
APPOINTMENT OF NEW TRUSTEES.
REGISTRY OF DEELS.
Selections from Correspondence.-Renewal of Attorneys' Certificates. parliament. I need not, sir, remind you of which any charge I could make was quite the influence of the provincial practitioners in unequal. Many respectable men in the profesalmost every borough, as well as in many of sion are considerably at sea in this matter. the counties; and that if they would exert
A CONSTANT READER. themselves success would be certain to follow. A SUBSCRIBER. APPLICATIONS FOR TAKING OUT AND
RENEWAL OF CERTIFICATES,
On the last day of Trinity Term, 1847. A correspondent, referring to the number for 3rd April, sends the following form of power,
Qucell's Bench. which he contends meets the objections of our Ascroft, William, Oldham. former correspondent, and is more concise than Bell, Edward, Stafford. the form he gave.
Carter, Frederick Roger, Exeter. “And I hereby direct and declare that in Dalton, George Wilkinson, 5, Duke Street, case any trustee or trustees for the time being St. James's; Candover; and Berwick-uponof this my will shall die, or refuse or become by Tweed. absence abroad or otherwise unfit to act in the Garratt, Joseph, Cambridge. trusts thereof, then and so often as the same Gray, William, 13, Martha Street, Camshall happen, it shall be lawful for the surviving, | bridge Heath. continuing, retiring, or other trustees or trustee Lindsay, Richard Fydell, 33, Tavistock for the time being, by deed, to appoint any Place; Westdean; 18, Judd Place; other person or persons to be a trustee or Claremont Street, Pentonville. trustees in the stead of the trustee or trustees Marshall, William, Biriningliam. so dying, refusing, or becoming unfit to act as Owen, Henry Hugh, 46, Upper John Street, aforesaid, and all the trust premises shall there- Fitzroy Square. upon be transferred accordingly."
Parkin, George Lewis, 45, Eastbourne Terrace, Paddington; and Regent's Square.
Whicher, William, Chichester.
Werninck, Henry Hope, Brussells. There is much talk again in the legal world Windsor, Other, St. Anne's Terrace, St. of having a general registry, but I think this John's Wood. session of parliament will pass over without Wilson, Thomas, Hatlex, near Lancaster; such a burden being entailed upon the country. and Lancaster. I must confess that such an act, if passed, would add greatly to the profit of the legal pro- Applications at Judge's Chambers for day after fession, to which, looking at recent measures, Trinity Term, 1847, for tuking out and rethere could be no objection. But then the client newal of Certificates. derives no benefit from such a burden, and the Aldham, George, 4, St. George Terrace, solicitor a responsibility almost unequalled. Islington.
I have felt this in a personal manner very Buck, Charles, Wellington. much of late, having had to search the Middle- Dawbarn, Robert, jun., Norwich ; and Alfred sex Registry and the Common Pleas Judgment Street, Bedford Square. Office, in two or three different cases, and I Higginbottom, William Henry, Manchester; see no other course open to the solicitor than and Ashton-under-Lyne. to search under the name of every person who Moore, Frederick Harry, Blandford Forum. has held the premises during the last twenty Myers, John, Manchester. years. You cannot rely that your vendor had
Parrott, William, 10, Staple Inn; Greensearched only five years previously, for he wich; 42, Ebury Street, Pimlico. might have overlooked an incumbrance duly Swift, William B., Lewisham ; 2, Golden registered of prior date, or he may not have Square ; 8, Temple Place, New Cross. searched at all. The same will hold good as Smith, Edwin Augustus, Blandford Forum. to judgments in the Common Pleas: we must Thornthwaite, William, 30, Gordon Street, search properly against every person who has Gordon Square. held the premises during the last twenty years; Wilks, John, Birstal; Douglas; Ramsay ; for if A. held the land twenty years ago, and Kircudbright; Dewsbury. had a judgment duly entered against him, and Wood, Frederick John, Brown's Terrace, re-registered down to the present time every Canonbury. five years, B. afterwards bought from A. without searching, and there have been innumerable Applications to Judge at Chambers for taking out sales since, searching always against the last and renewing Certificates, pursuant to Judges' vendor, as is the usual custom, A.'s judgment orders. would still remain a charge upon the premises
Garnham, Richard Enoch, 33, Gower Place, in the hands of T.
Euston Square. After I had completed my search, I could
Garnett, Philip Frederic, Radley's Hotel, only say, that I was not at all satisfied that I
Bridge Street; and Demerara. might not have overlooked some incumbrance
Oxley, George, Rotheram; and Brightside. or judgment which might in equity affect the estate, and so incurring a responsibility for Kington (Herefordshire).
Sill, Richard, Laurel Cottage, Lyon's Hall,