36 Clerks to Justices' Bill.-Points in Common Law. CLERKS TO JUSTICES' BILL. To the Editor of the Legal Observer. SIR,-In your journal of the 5th April, instant, are a series of " Objections to the Justices' Clerks Bill." In one of them it is stated that "clerks to justices will be disqualified from acting as clerks to boards of guardians." shortest set of copies of depositions, even if the whole length does not exceed a folio. If the depositions are lengthy, the demand is greater. I conceive this to be unfair, and suggest that a act, making it imperative upon justices' clerks clause should be introduced in the proposed to give copies of the depositions to prosecutors or their attorneys, on request, at the rate of four pence per folio. A GLOUCESTERSHIRE SUBSCRIBER. POINTS IN COMMON LAW. I have carefully read the bill, but am unable to come to this conclusion. However, I think it ought to be as your correspondent states it is, and I hope that you will use your powerful influence to obtain such an enactment; for as a young VERIFICATION OF AFFIDAVITS BY PERSONS attorney I do think it very unfair, both to the profession and the public, for the same person to hold both these lucrative offices. In the town in which I reside, one firm holds all the appointments of any value, (about twelve in number); the partners' time being thus so fully occupied, they cannot afford to attend to these appointments without receiving double the salary that would satisfy any other respectable solicitor in the town. Thus the public suffer from the present system. This is an objection I have not seen urged. The clerk to the union (who is also clerk to the magistrates) has a salary larger than in the kingdom, and the union is one of the other clerk any smallest. ABROAD. THE rapidly increasing intercourse with foreign nations, and the number of British subjects who, for purposes of pleasure or business, are temporarily or permanently resident abroad, renders some recent decisions with respect to the admissibility of affidavits made in foreign countries deserving of attention. For years the courts of common law have deemed it expedient to receive such affidavits when properly verified; but it is essential to the that they should be sworn before a person duly validity of such instruments, in every instance, authorized to administer an oath. The stat. 6 G. 4, c. 87, s. 20, enacts,—“ that Great care ought to be taken to prevent one consul, appointed by his Majesty at any foreign it shall be lawful for the consul-general or partner in a firm holding one of these appoint-port or place, whenever he shall be required ments and another partner the other appoint- and whenever he shall see necessary, to adment: this system is carried on where I live, minister at such port or place any oath, or to for the express purpose of guarding against take any affidavit, or affirmation, from any such an enactment as the one proposed by the Justices' Clerks Bill. This evasive practice oath, affidavit, or affirmation, shall be as good, ought to be positively prohibited, as well as valid, and effectual, and shall be of the like person or persons whomsoever, and every such regards the two offices I have mentioned, as in force and effect, to all intents and purposes, as the cases instanced by the 12th clause of the if such oath, affidavit, or affirmation had been bill; for assuming your correspondent to be right in his objection to the bill, "that the before any justice of the peace or notary pubadministered, affirmed, sworn, had or done, clerkship to the justices disqualifies for the lic in Great Britain or Ireland, or before any other appointment," this objection can only other legal or competent authority of the like arise by way of implication; and therefore, not being expressly named in the section, might not be considered within the words "either by himself or partner" in the same clause. AN ATTORNEY. SIR,-Much has, from time to time been said in your valuable work, on the subject of the bill for preventing clerks to magistrates from conducting prosecutions-permit me to offer a remark in reference thereto. By virtue of some statute, prisoners are at liberty to demand copies of the depositions upon which they are committed, at a charge of one penny or three half-pence per folio; but I am told there is no law which gives prosecutors the right to call for copies of the depositions at any price. In most instances, the prosecutor's attorney applies for such copies to assist him in preparing his brief for the trial. In a neighbouring district, the magistrates' clerk (who, by the way, monopolises all the prosecutions he can) demands from prosecutors a guinea for the nature." whether it might not have been more expedient It would be unprofitable here to speculate, for the legislature to have substituted, in every instance, a recognized and responsible officer gree with British laws and customs-for the like the British consul-acquainted in some demultitude of officials of various degrees of intelligence, who, according to the laws or customs of foreign countries, are authorized to administer oaths within their several localities. It is enough to observe, that the enactment above cited, does not admit of so comprehensive a construction, and that the authority of a British consul abroad is limited, in this respect, to those cases in which an oath or affidavit would be valid when taken before a justice of peace in this country. A justice of the peace or other authority of a like nature, is not authorized to administer an oath or take an affidavit in a cause depending in any of the superior courts, • Dalmer v. Barnard, 7 T. R. 521. no privity of interest between the principal and surety, and a party is not required to make profert of an instrument to the possession of which he is not entitled." nor is a British consul authorized to administer ment was in the hands of the trustees, who oaths or take affidavits in such cases. The refused to permit the defendant to have the point was discussed and expressly decided by possession, that the excuse was insufficient, as the Court of Queen's Bench, in a late case, the defendant was a party to the deed and bewhere an affidavit was produced in support of neficially interested under it. On the other an application for a new trial, which was sworn hand, where a party sued as a surety, pleaded before the British consul at Paris, whose sig- a release from the plaintiff to his principal, it nature was verified by a person in the Foreign was holden that the defendant was not obliged Office. The objection was taken and prevailed, to make profert of the instrument, as there was that the affidavit was sworn before a person not competent to take an affidavit, in any proceeding in which an affidavit sworn before a justice of the peace would be insufficient, the court citing the case of ex parte Hutchinson, as directly in Instruments in respect of which profert is point. The result of this decision is, that affi- made, are supposed to remain in court during the davits made abroad, to be used in a cause de- term in which they have been pleaded, and therepending in this country, must be sworn before fore the party against whom a deed is pleaded is some person authorized by the law of the clearly entitled to inspect the deed whilst it is country in which the affidavit is sworn to ad-supposed to be in court, and if any practical minister an oath, and should be verified by an difficulty was found in asserting the right, it affidavit sworn in England, stating that the would be the duty of the court to enforce it. person administering the oath had authority so But where a party claims under, or relies upon to do, by the law of the foreign country. a document not under seal, the adverse party has no right to examine the instrument, although the courts of law, in the exercise of an equitable jurisdiction, and where the application appears clearly to be for the advancement of justice, frequently interpose to afford the party interested an opportunity for inspection. Applications of this description are usually made at chambers and not in open court;c a circumstance which increases the difficulty of ascertaining upon what principle any particular application has been granted or refused. Lord Mansfield is said to have laid down the rule, that whenever a defendant would be entitled to a discovery in equity, he ought to be allowed an examination of the document in a court of law; and this rule appears to have been recognized and adopted as a guide, by many succeeding judges in the exercise of their equitable jurisdiction. In cases of affidavits, verifying the due taking of acknowledgments of deeds by married women, pursuant to the stat. 3 & 4 Wm. 4, c. 74, s. 85, the Court of Common Pleas has not enforced a rigid compliance with the rule, which directs "such affidavits to be taken before a person duly authorized to take affidavits in that court, or before some magistrate of the place where the acknowledgment is taken, having authority to administer an oath ;" for in a late case it was held,e that an affidavit of the acknowledgment of a deed sworn before a person who described himself as "minister of the British Chapel at Moscow," was sufficient, it appearing that magistrates in Russia had no authority to administer oaths, and that there was no English notary public or British consul within 400 miles of Moscow, the nearest being at St. Petersburgh. PROFERT, AND INSPECTION OF DOCUMENTS. THE right to inspect documents pendente lite, is one in respect of which the books of practice are somewhat at variance, and which it is often essential to the administration of justice, should be clearly understood. In actions founded on instruments under seal, or where a defendant justifies or excuses himself under an instrument under seal, the pleadings should make profert of the deed; and it was decided in a very late case in the Court of Exchequer, where in answer to a declaration on a promissory note, the defendant pleaded an assignment to trustees for the benefit of creditors, and averred as an excuse for not making profert, that the deed of assign It is stated inaccurately, in some of the Books of Practice, that where a written contract is declared upon, the courts will not compel an inspection of the instrument upon the suggestion that it is forged. The authority for this rule is a dictum of Chief Justice Eyre, in the case of Chetwind v. Marnell, in the year 1798, "that it would be a violent measure to order the plaintiff to produce an instrument which might be the means of convicting him of a capital felony." The ground suggested by the learned Chief Justice, seems a very unsatisfactory reason for subjecting a party in a civil action to the consequences which may result from the establishment of a fabricated document; and, if correctly reported, Chetwind v. Marnell can have been but little considered: for, as pointed out in a note in the last number of Messrs. Manning & Granger's Reports, p. 277, the action was brought upon a bond of which the plaintiff must have made profert, ↳ Per Parke, B., Bain v. Cooper, 8 M. & W. 751. c Vaughan v. Trewent, 2 Dowl. 299. e 1 Bos. & Pul. 271. 38 Separate Estate of Married Women. and to which the defendant pleaded non est sister is purely alimentary, and exclusive of the factum, although the fact that profert was made jus mariti of her present or any future huswas not once adverted to, either by the counsel band; and that it shall not be attachable by for the defendant or the court. Be this as it arrestment or diligence (execution) of any kind may, in more modern times an inspection has whatever, nor assignable, nor subject to any been frequently granted upon the suggestion deeds which either she or her present or any that the document is a forgery. In a late case future husband may grant in relation thereto, of Thomas v. Dunn, where an action was or debts which they may contract." In Sepbrought on a written contract to employ the tember 1835 a very extraordinary deed was plaintiff as the agent of the defendant, for the executed, whereby the trustee, in concurrence purpose of establishing and conducting the with Mrs. Rennie, who was made a party to Chinese Exhibition, a rule was granted by the the instrument, conveyed the settled property Court of Common Pleas, founded upon an to one Ritchie, upon certain trusts, differing affirmation that the signature to the contract materially from those contained in the original was not written by the defendant or with his deed of settlement; but more especially differing authority, and calling upon the plaintiff to from them in this important respect, namely, show cause why the contract should not be that whereas by the original deed Mrs. Rennie deposited with one of the Masters of the Court, was declared entitled to the entire rents and with a view to the inspection of the document profits for her life, yet by this second instruby the defendant, his attorney, and witnesses. ment, Ritchie (who was assumed as trustee in In showing cause against the rule, it was conjunction with the gentleman originally admitted that the defendant was entitled to an appointed) was authorised to take the manageinspection of the contract in the hands of the ment of the estate into his own hands, and to party to whom it belonged, and the only con- pay out of it certain debts of Mrs. Rennie's tention was, whether it should be taken out of husband, in particular several sums advanced his possession. Tindal, C. J., in delivering to that individual by Ritchie himself. And the judgment of the court, observed, that he with the view of enabling him to do this more was not aware of any instance in which a plain- effectually, Mrs. Rennie was put upon an altiff was compelled to deposit a contract with lowance, under the deed, of a sum to be paid the Masters; but the rule was made absolute by Ritchie at discretion, but which sum was in for an inspection by the defendant and his no event to "exceed 60l. per annum," until witnesses in the usual way, upon payment of the debts contracted by the husband should alr be discharged. costs.g SEPARATE ESTATE OF MARRIED CLAUSE AGAINST ANTICIPATION.-LAW OF law. SCOTLAND. A proceeding was resorted to in 1837, before the Court of Session in Scotland, to have this deed of devolution in favour of Ritchie set aside, as being a breach of trust on the part of the original trustee, and, so far as Mrs. Rennie was a party to it, a violation of the interdiction against anticipation. This proceeding was instituted by Mrs. Rennie herself, with her THE people of England have an interest in husband's concurrence. knowing what the law of Scotland is with The Court of Session respect to the wife's separate estate; and we gave judgment for the defendant; that is to have therefore obtained the papers in a Scotch say, they supported the deed attempted to be cause, lately before the House of Lords, in set aside. But upon an appeal to the House which the whole question was fully gone into of Lords, it was made to appear that the ques and deliberately determined. We have only to tion which had been treated by the court below suggest how numerous are the marriages which as of but little consequence, was really one of constantly take place between the inhabitants great importance to the law of both countries. of both countries, to show that the subject It was argued for two days before Lords involves an important question of international Brougham, Cottenham, and Campbell. Mr. For this reason we have obtained from Anderson and Mr. Macqueen, who were counsel one of the solicitors in the cause a copy, not for the appellants, showed that the separate use only of the pleadings, but of Mr. Gurney's similar to those which had given birth to it had originated in Scotland under circumstances short-hand notes; from which it appears, that in the year 1831 William Elphinstone Robert- in England; that its objects in both countries son made a deed of trust whereby he directed were the same; and that although, at one his trustee to pay the rents and profits of an period, doubts existed as to the policy of such estate to his sister, then the wife of Richard arrangements of property in the married state, Rennie, “declaring that this provision to my tertained, the separate use being universally yet that now these doubts were no longer enregarded as a contrivance that ought to be countenanced and kept up. Then as to the clause against anticipation, it was nothing more than a means devised by conveyancers to render the separate use secure, by placing it beyond the wife's own power to destroy it. The cases in the English courts of equity, 16 Man. & Gran. 264. Mr. Serjeant Manning states, in his note to Thomas v. Dunn, 6 M. & G. p. 278, that an order was afterwards made in Chancery, for depositing the contract with Mr. Maugham, the Secretary of the Law Institution. Separate Estate of Married Women.-Trinity Term Examination: 39 especially that of Tullet v. Armstrong, 1 Beav., perty was settled to the separate use of the wife, 1, were then cited, and the admirable judg- equity considered the wife as a femme sole, to ment of Lord Langdale in that case was shown the extent of having a dominion over the proto bear in every material respect on the policy perty. But then it was found that that, though of the law of Scotland. The Lord Advocate useful and operative so far as securing to her and Mr. Baillie, of the Scotch bar, were heard a dominion over the property so devoted to her for the respondents, and contended that by the support, was open to this difficulty, that she law of Scotland such clauses as that here being considered as a femme sole was of course occurring in restraint of anticipation did not at liberty to dispose of it as a femme sole might prevent a wife from assigning her separate have disposed of it; and that of course exposproperty for debts of an alimentary character; ing her to the influence of her husband, was but the House having taken some time to con- found to destroy the object of giving her a sider the question, gave judgment on the 25th separate property. Therefore, to meet that, April, 1845, reversing the decree of the court a provision was adopted of prohibiting the anbelow. The following extracts from the ticipation of the income of the property, so that speeches of the Law Lords are from Mr. Gur-she had no dominion over the property till the ney's notes :payments actually became due. That is the Lord Campbell. It is not disputed that the provision of the law as it now stands, and that law of Scotland recognizes the settlement of is found perfectly sufficient for securing the property as an alimentary provision for a interests of married women. married woman, and that it may be made not In Scotland much the same course is adopted, assignable or subject to debt or diligence, ac- the same objects have been worked out, though cording to the principles upon which many not precisely in the same way, but still there cases have been decided in England, which are is by the law of Scotland a protection in favour all to be found cited in Tullet v. Armstrong, 1 of an alimentary fund, and there is a provision Beav. 1; 4 My. & Cr. 377. But it is said there that the alimentary fund shall not be assignis an exception in favour of alimentary debts. able. Those are two provisions very much It is unnecessary here to inquire how far an corresponding with the provisions which have alimentary fund can be anticipated for past been adopted in the law of England-but if alimentary debts; because it seems to me quite the present deed were to stand, there would be clear that none of these items were the alimen- an end to that protection. This is not only an tary debts of Mrs. Rennie. The advances were alimentary fund in its nature, but it is in terms to Mr. Rennie, or for the support of the family declared to be so. It is declared not to be while he was living in England; and for the assignable-but it has been assigned, not for whole amount he was personally liable. The past aliment for the wife and her family, but debts, therefore, were the debts of the husband for expenses incurred for the convenience of and not of the wife; and for the debts of the the family at large, or for the private expendihusband, I am of opinion that an alimentary ture of the husband. I think, therefore, upon fund so appropriated for the maintenance of the that ground, that this deed is clearly bad. wife cannot be assigned. I am therefore of opinion that the interlocutors supporting the validity of the deed of assignment must be reversed. Lord Brougham. My Lord, I take the same view of the case with my noble and learned friend. Lord Cottenham. My Lords, it appears to me if this interlocutor were to stand it would be impossible hereafter to secure the interests of a married woman. In this country, as in Scotland, it has been found necessary for the interests of society that means should exist by which either the parties themselves, by contract, or those who intend to give a bounty to a family, may secure that for the benefit of the wife and children, without its being subject to the control of the husband. In this country it is well known, that it has been subject to considerable fluctuation from the time that that doctrine was first established, though it is now very firmly es tablished; and no difficulty occurs as to the mode of carrying that object into effect. When first, by the law of this country, pro The speech of Lord Cottenham is peculiarly valuable. We give it at length, therefore, so far as rela es to the general question. It is also clearly bad as being a direct breach of trust the original trustee had no right whatever to divest himself of the duties which he had assumed to himself, and to transfer to others that discretion which was personal to himself. Judgment reversed. TRINITY TERM EXAMINATION. THE examiners appointed for the examination of persons applying to be admitted attor neys June next, at half-past nine in the forenoon, at have appointed Tuesday, the 3rd day of the Hall of the Incorporated Law Society, in Chancery Lane, to proceed on the examination, which will commence at ten o'clock precisely. Articles of clerkship and assignment, if any, with answers to the questions as to due service, according to the regulations approved by the the 28th instant, at the Law Society's Office. judges, must be left on or before Wednesday, Where the articles have not expired, but will expire during the term, the candidate may be examined conditionally, but the articles must be left within the first seven days of term, and answers up to that time. A paper of questions will be delivered to each 40 the Peace. Legal Examination Prizes.-New Orders in Chancery. candidate, containing questions to be answered friends. And as he says, that distinctions rein writing, classed under the several heads of - mind him of a child having his pill gilded 1. Preliminary. 2. Common and Statute Law, or a sweetmeat to take after his draught, I would and Practice of the Courts. 3. Conveyancing. ask him whether he ever heard of any harm 4. Equity and Practice of the Courts. 5. Bank- resulting from a pill being gilded, as he seems ruptcy and Practice of the Courts. 6. Crimi- to have such an objection to it? I never have. nal Law, and Proceedings before Justices of And I certainly have never yet heard of any body, child or not, wishing his potion to be made more nauseous without any possibility of a corresponding good arising from it; and no good could arise, I assert, either to the candidates or the public from the examinations being made "stiffer," unless distinctions were also allowed. From this and other particulars, indeed, I should judge that your correspondent had forgot to subscribe quondam before his present signature, for the letter bears very evident marks of having been written, or at least corrected by some old and experienced member of our profession. Each candidate is required to answer all the Preliminary Questions (No. 1); and it is expected that he should answer in three or more of the other heads of inquiry, Common Law and Equity being two thereof. Though it is not intended to increase the difficulty of the questions, we understand the examiners expect that a larger number than hitherto should be satisfactory answered. LEGAL EXAMINATION PRIZES. To the Editor of the Legal Observer. SIR,-Relying on the kind feelings which have induced you to devote so much of your valuable space for the benefit of the junior members of our profession, I again address you on the subject of examination distinctions. Another correspondent objects to the unpleasant duty entailed on the examiners, in their anxiety to do justice to the meritorious candidate. How much more unpleasant must it be, I would ask, to reject any one entirely, which is even now done? In conclusion, I would exhort all town articled clerks in favour of distinctions being conferred to hold a meeting, (as suggested by your correspondent "T. C. H.,") and there decide on the steps which ought to be taken to further the object in view. LEGULEIUS. THE NEW ORDERS IN CHANCERY. I have observed in a late number of your journal a letter from a correspondent, who subscribes himself "Sub Articulis," in which he argues, that because there is a difference between honours in our profession and at the universities, they would consequently operate perniciously upon it. But this he does not prove in a satisfactory manner; the argument ber, have at length been made. They bear he seems chiefly to rely on, namely, the frequent date the last day of last term, (8th May, 1845,) alterations in our laws, appears to me a most in THESE long-expected Orders, 128 in num The Chancery Offices being closed this week, we have not been able to procure a copy of the orders in time conveniently to print any part of them, but their scope is as follows : 1 & 2. Introductory-repeal of part of former orders. 3. When the orders are to come into operation. conclusive one, for as the candidate for admis- but are not to come into operation until the sion can only be required to know the actual 28th October. We shall therefore have abunstate of the law at the time of his examination, dant time to place them before our readers, so having acquired a perfect knowledge of that, accompanied by such notes and observations as (which he would certainly see the necessity of doing if he intended to distinguish himself), it may appear to be requisite. must ever after prove of great service to him, and it would be very improbable that having once distinguished himself he should neglect to keep up his proficiency, and also to add further to it as he might find necessary, for even the studious habits themselves engendered by the diligence requisite to ensure success in most cases would never be entirely lost in after years, and the distinction itself would, as your correspondent observes, be a species of certificate, that at the time of his examination he was of a certain proficiency, and the public would without doubt be in some measure guided by that certificate; and if he be found industrious and deserving they would give him their confidence; if, on the contrary, he proved otherwise, they would withhold it, and it could not possibly be worse than it at present is, for those candidates who happen not to distinguish themselves, because young men now fresh settling in business are seldom trusted except by their 4. Interpretation. 5-10. Official attendance and vacations; abolishing many inconvenient holidays, and rendering the attendance generally uniform and more conformable to practical convenience. 11-15. Computation of time. 16-21. (Including 49 sections). Times allowed in procedure: these are considerably diminished. 22-27. Subpoena. |