The Legal Observer. SATURDAY, FEBRUARY 19, 1842. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus. HORAT. REFORM IN CHANCERY. No. II. In our last article we alluded to the heads into which this subject naturally divided itself, and we mentioned that the second of these the delays attendant on waiting for the hearing of causes,- -was fast disappearing. We propose, on the present occasion, to say a few words on one branch of the first head, the proceedings preparatory to the hearing of causes. confesso-at an expense varying from 201. or 301. to 401. or 501. In the very common case, too, of an attachment for want of answer, returned non est investus, though the late orders on the affidavit of due diligence allow the plaintiff to jump at once to a sequestration, and then to a pro confesso; even they leave the writ of sequestration, (which is a mere form and expence, and a cause of delay), and they also leave the form of the affidavit of due diligence, where it was before. Now this affidavit is granted under Sir E. Sugden's act, 11 G. 4 and 1 W. 4, c. 36, (an act which certainly wants thorough revision). Rule 1 By the recent orders of the Court (26th of this act requires an affidavit "of the soliAugust, 1841), some valuable changes have citor of the plaintiff, or his town agent," (not been introduced into the practice with re- of the clerks who do the work) "that due spect to the first steps of a cause. If a diligence was used to ascertain the place party is served with a subpoena, and does where such defendant was at the time of not appear, the common law practice is issuing such writ, and that the person now introduced of allowing an appearance suing forth the same," (i. e. the solicitor) in Equity, analogous to the Common Law" verily believed at the time of suing forth appearance sec. stat. This practice, however, the same that such defendant was in the is not completely introduced. The cases of county into which such writ issued." But parties under disabilities, and privileged in nine cases out of ten, you have no belief persons, peers, members of parliament, lu- where the defendant is. You can have natics, and infants, are left where they were, none. He is non est inventus-goneand the attachment for want of appearance but you can't shew it. You can swear itself is not taken away. But there would where his residence is, but not where, seem no reason why the simple practice of an at the instant, he is personally. appearance sec. stat. should not be extended is not within the act. See Davis v. Hamto every case, and should not be the only pe- mond, 5 Sim. 9, in which it was so held, nalty to which a defendant is in the first and that the affidavit must follow the instance subjected, if he does not appear. exact words of the act. It was so held in 1831, but yet, in 1841, the new rules (rule ix) repeat this in totidem verbis, leaving the old difficulty untouched. As to the practice in default of answer, it is still left in a state much more complicated than the practice in default of appearance is now in. If a defendant is taken on the attachment, and gives 401. bail, the plaintiff may still have to pursue the old course, and run through all the steps of the Equity sliding scale-of messengers, sergeant-at-arms, and sequestration, to pro VOL. XXIII. No. 703. This The practice again as to processes to compel the performance of decrees and orders, is not at all in the state it should be. In the first place, why, if a defendant at law can with propriety be bound to take notice of the judgment, and to pay money when judg Y 1 306 Reform in Chancery. The Law of Joint Stock Companies. ment is recovered against him, should there be any necessity for delay in enforcing a decree against him in Chancery? But by the orders of 10th May, 1839, a plaintiff must wait a month after his order is entered (the day of entering an order is not, by the way, a day noticed in Chancery practice, only the date of the order itself) before he sues out the fi. fa. given by that act. Or, if instead of having a fi. fa. he choses to proceed to an attachment, why in equity must the defendant be personally served with an order or decree made against him before his counsel's face, when, at law, no such necessity exists, and where the law practice is obviously a fair one, and one out of which no mischief has ever arisen? If a decree and a judgment were both pronounced against a defendant on the same day, why is the common law plaintiff to be entitled to his remedy one month before the chancery plaintiff? and why is the chancery plaintiff to have the expence of personally serving the defendant with what is analagous to the common law judgment roll? Again, as to the writs of execution of orders, of which, perhaps, ten a-year at the outside are abolished; why are writs of injunction, of which hundreds must be wanted, not abolished too? They are writs generically the same. Altogether, it is clear that the practice as to process wants careful investigation. And it is also very advisable that this should be done at once, so as to bring a very simplified practice into play, when the Six Clerk's Office shall come to be abolished. This we think of great importance. THE LAW OF JOINT STOCK MAKING CALLS. We recently adverted to the cases as to which confirms the conclusions to which making calls; we now add the following, we then came : The Sheffield and Manchester Railway Act (7 W. 4, c. 21.) by s. 115, empowered the directors, from time to time to make such calls from the proprietors, on their respective shares, as they from time to time should find necessary, so that no call should exceed 10. on each share, and that there should be an interval of three calendar months between each successive call, and twenty-one day's notice should be given of every such call, by advertisement in the local newspapers; and the proprictors were thereby required to pay the calls on their shares to such person, at such time, at such place, and in such manner, as the directors should from time to time direct or appoint. The directors made a resolution for a call, specifying therein the amount of the call, and the day of payment, but not the place where, or the person to whom the payment was to be made; but a notice of that call, subsequently inserted in the local newspapers, according to the directions of the act, the amount of such call, against a party who specified all those matters. In an action for was a proprietor at the date of the resolution, of the notice, and of the day appointed for payment, it not appearing also, that there was any change in the directory during that interval: Held, that the call was properly made. By another resolution, made on the 13th of The practice on contempts is almost the March, the directors resolved that a call of 5!. should be made on the 30th of March instant, only branch of practice left exclusively to be paid on the 1st of May: Held, that the with the clerks in court. When their call was not invalid because the resolution was duties are transferred to solicitors, this prospective. Some of the directors by whom branch is almost the only one which it the resolution for the calls were made, were will cause the solicitors much difficulty to members of a banking company, who were the learn; and if simplified so as to become bankers and treasurers of the railway comsomething very like the common law prac-pany, and as such, received and gave receipts tice, it will not only be a great gain to the suitor, but no small gain to the solicitor too, and no small impediment removed from out of the way of abolishing the Six Clerks' Office. As to the solicitor, the fees allowed on issuing writs, would not at all compensate him for the trouble which the present very obscure and involved practice would bring on him, whenever he had a writ to issue. We are glad to know that the whole subject here treated of is under active and careful practical consideration. for calls, and paid cheques drawn by the directors, &c. A clause of the act of parliament interested in any contract with the company (s. 150) enacted, that no person concerned or should be capable of being chosen a director, and that if any director should directly or indirectly be concerned in any contract with the company, he should thereupon be immediately, Held, that this clause applied only to contracts and was thereby discharged from the direction: made with the company in prosecution of its tors above mentioned. Another clause (s. 159) enterprize, and did not disqualify the direcdirected that the orders and proceedings of the directors should be entered in a book, and signed by the chairman of the meeting, and enacted, that when so entered and signed, 66 The Progress of Law Reform.-Letters from a Student. LETTERS 307 FROM MR. AMBROSE HARCOURT,_STU- they should be deemed originals, and be read | fied scheme of local courts, limited probably in evidence without proof of the persons mak- to the recovery of small debts, will be introing or entering them being directors, or of duced in the course of the session; and Sir the signature of the chairman: Held, that a James Graham, on Wednesday last, stated book of proceedings purporting to be signed that such was the fact. W. S., deputy chairman," was evidence per se, without proof that W. S. was in fact deputy chairman, or as such presided at the meeting. A transfer of railway shares from an original subscriber to the undertaking, made before the formation of a register of proprietors pursuant to the act, but after the passing of the act of parliament, is good, although the transferror be never registered as a proprietor. Where the act required such transfer to be by deed, and a transfer of shares was executed by the seller, with a I Now go on with their Honors the Vice blank for the purchaser's name, and stating Chancellors, and I may tell the consideration untruly, but the purchaser afterwards signed and transmitted to the company, in pursuance of the act, a proxy paper describing him as the proprietor of the shares: Held, in an action by the company against him for calls on such shares, that he was precluded from disputing the validity of the transfer. The Sheffield and Manchester Railway Company v. Woodcock, 7 M. & W. 574. THE PROGRESS OF LAW REFORM. So far the session has produced but little in the way of law reform; but we understand that many measures are in agitation, and will be speedily produced. The coun. try commissioners of bankruptcy will, in all probability, be replaced by a much more limited number of Judges, and the administration of justice in bankruptcy in the provinces, be put on another footing. The present system of administering lunacy, is also under consideration, with the intention of making some alteration in it. We have long considered that reform was here required. The mode of payment to the commissioners by the day, has been exploded in almost every other instance, and we see no reason why a permanent tribunal should not be appointed, which should deal with these matters, as well in town as in the country. The registration of voters is certainly another subject which will be brought before Parliament. We have not heard the exact plan, but we believe that the doom of the present Revising Barristers, as a body, is sealed that a fixed, and not a floating number, will be appointed, who shall attend exclusively to this business. We have long urged the propriety of such an alteration, and we shall be glad to see it made. The courts of revision must of course continue. It has been further reported that a modi LETTER V. Dear Pringle, you that since their appointment one of the most crying evils attending the administration of justice in the Court of Chancery is fast disappearing-the delay in the hearing of causes. This delay, till very lately, amounted to two or three years after the cause was set down, and operated in two ways. It was a great grievance, when the parties actually intended and wished that their causes should be heard; but it was a still greater where they did not; I mean where, availing themselves of the delay which it was known would take place in this stage of a cause, parties merely had their causes put down with the intention of taking advantage of the chapter of accidents, and giving way when the hearing was to come on. The great arrear was therefore a crying injustice, as rights might thus be defeated for a long period, if not for ever, and an estate in possession was converted into an estate in reversion. This was the state of the Chancery cause list, I am informed, when Michaelmas Term last commenced; and when it was distributed among the three Judges, many of the causes turned out to be "rotten," that is, they dropt off and disappeared, never having been intended to be heard at all; and what with this circumstance, and the vigorous assault upon it by the Judges, it is now of a very moderate extent. You must not suppose, however, that delay in Chancery will cease to exist on this account. If the delay in this stage of a cause cease, it will soon occur elsewhere; there will next be a stoppage in the Master's office; a complete block up of business; or what is still more likely, an arrear of appeals before the Lord Chancellor, if this has not taken place already. We shall see, therefore, soon, if the mere appointment of two Judges was a sufficient remedy for the evil, or whether a much more extensive remedy in the other parts of the procedure must not be applied. 308 Letters from a Student. - Notes on Equity. In the mean time I am informed that all that the Judges can do has been done. first duty of a judge is to listen. It may reasonably be expected, however, that these faults will subside, and that Mr. Knight Bruce will lose none of his reputation by his promotion to the Bench. I now come to Vice Chancellor Wigram, the second Vice Chancellor, and this has been very generally admitted to be a sound and wise appointment. He possesses great industry, much acuteness, and certainly no deficiency in professional information; and here also the Bench has the advantage of that perfect familiarity with its ordinary business, which can only be acquired by extensive practice at the bar. Mr. Wigram is, however, a slower man by nature and habit than Mr. Knight Bruce. I will not yet say he is a surer, until further experience enables me to judge. But he has hitherto obtained, and is likely to retain, the confidence of the suitor. Up to a certain point he can always go without difficulty, and has full command of all his faculties to this extent; but he does not dazzle the Court by any great display. Thus I send you my crude notions of these learned Judges, and shall probably write to you again soon. Your's truly, AMBROSE HARCOURT. Mr. Knight Bruce, (for as far as I know he has not yet been, and I presume will not be knighted, although sworn of the Privy Council) has for many years led the Chancery bar. Since the retirement of Sir Edward Sugden he was for many years the advocate for choice of the suitor, and happy indeed was the suitor who was first in the race to retain him; most happy, certainly, if the cause was tried in a particular Court. I need hardly say that the leader of the Chancery bar (for with one exception, that of Mr. Pemberton, who rarely crossed his path, he was the leader) must be a distinguished man. He had a marvellous quickness, extensive knowledge, a thorough acquaintance with the practice of the Court, and a ready and animated eloquence. He was to be pardoned, therefore, if he was somewhat conceited and overbearing, and a little too fond of hearing himself talk. Still, with all these acquirements, it was doubted, even by some of his friends, whether this very successful advocate would subside into a good judge. There have been no ordinary disappointments in other cases on this score, and people, in Mr. Bruce's case, were prepared to expect it. Many were the very wise heads that were shaken; and profound indeed were the conjectures at the appointment. It has so happened, however, that, so far, I understand Mr. Knight Bruce has turned out a very good Judge. His great quickness, his knowledge as well of practice as principle; his If an alien resident abroad composes a work thorough familiarity with all the details of there, but publishes it first in this country, he a cause, have all come to his aid; and hitherto there has been found no want of is entitled, it would seem, to the protection of the judgment which is necessary to keep the laws of this country relating to copyright. all these faculties in order, and complete Sir L. Shadwell, V. C., said "In his opinion the satisfactory disposal of a cause. Cer-protection was given by the law of copyright tainly I am assured that, for getting through to a work first published in this country, whethe arrear, no Judge could be better. ther it was written abroad by a foreigner or Cause after cause is drawn in and disposed not, that if an alien friend wrote a book, wheof by him, not always, indeed, as I am ther abroad or in this country, and gave the told, on full preparation of all parties conBritish public the advantage of his industry cerned, but without dissatisfaction. and knowledge, by first publishing the work” He here, he was entitled to the protection of the has, in many cases, known more about a laws relating to copyright in this country; but cause than any one else, but I do not know as the question which had been discussed was that this is to be objected to. His faults as a legal one, he should direct the plaintif to a Judge are, that he is too impatient; that seeing a point very clearly himself, he is fidgetty if the advocate who is addressing him does not see it also immediately; and that he is rather fond of hurrying the counsel who addresses him; of cutting short the usual rigmarole of a cause, and getting to what are called "the points." Moreover it was difficult for the successful advocate to remember all at once that the NOTES ON EQUITY. COPYRIGHT IN FOREIGNERS. bring an action within three weeks, for the purpose of trying his right, and should continue the injunction in the meantime." An action was accordingly brought, but the defendant consented to a verdict being taken against him. Bentley v. Foster, 10 Sim. 329. By stat. 1 & 2 Vict. c. 59, the benefit of international copyright is, in certain cases, secured, as it empowers her Majesty, by order in council, to direct that authors of books, first published in foreign countries, and their assigus, Notes on Equity.-New Bills in Parliament. 309 I do not at all prescribe to the shall have a copyright in such books within | * her Majesty's dominions. See all the statutes Court of Session what course they should puras to copyright concisely stated, 2 Stewart's Blackstone, 439-440. 2d edit. PROCEEDINGS IN TWO COURTS. sue. They perhaps may inhibit the plaintiff's from proceeding here. I consider that the plaintiff's are entitled to such security as the practice of the Court of Session gives for what shall ultimately be found due, whether it be. ascertained in the Court of Session or here." The Lord Chancellor, therefore, allowed the already existing proceedings in Scotland to go. on, but so far only as might be necessary to obtain security for what should be found due from the defendants to the plaintiffs. Wedderburn v. Wedderburn, 4 MyÏ. & C. 585. NEW BILLS IN PARLIAMENT. COPYRIGHT REGISTRATION. of printed publications a greater security in the property of their copyrights of and in the same than they at present possess, and to give ready and easy means to the public to ascertain at any time to whom the property in such copyrights may belong, the assignments that may have been made of them, and any incunbrances affecting the same; It is therefore proposed to be enacted as follows: The general rule of a Court of Equity is, that parties must not proceed in any other Court for the same purpose for which they are proceeding in the Court of Equity; and it inakes no difference whether the other proceedings are taken in this, or in any other country. See Mocher v. Reid, 1 Ba. & Be. 318; Wilson v. Wetherel, 2 Mer. 406; Booth v. Leycester, 1 Keen, 579, and 3 Myl. & C. 421; and Edgecumbe v. Carpenter, 1 Beav. 171; and if a party conceives there are any circumstances in his case which constitute an exception to the rule, his proper course is not to take proceedings in another Court of his own authority, but to apply to this Court for per- THIS bill, which has been introduced by Mr. mission to take such proceedings. In a late Godson, is intituled, "A Bill for the Registercase, these rules were fully reviewed. Plain- ing of Copyrights and Assignments thereof, and tiffs who had obtained in the Court of Chancery for the better securing the property therein." a decree for an account against three defen-It recites that it is necessary to give the authors dants, two of whom resided in Scotland, and all of whom had real property there, brought actions in Scotland against the same defendant for the same demand, and they obtained leave from the Court of Chancery to prosecute the Scotch actions, so far as should be necessary for the purpose of obtaining such security, as it is in the power of the Scotch Court to give for the amount, which upon taking the accounts directed by the decree, should ulti- 1. That upon a memorial of any literary inately be found due to the plaintiffs. "I work already printed and published, or hereafter find," said Lord Cottenham, C.," that some at to be printed and published, being produced least of the defendants are out of the jurisdic- to the proper officer at the office of the registion, that they are living in Scotland, and have trar of the Court of Chancery in London, it landed property there, which by the course of shall be lawful for the said officer, and he is the Court of Session may be rendered available hereby required to register the same, and to as a security for what is due from the defen- give to the party so producing such memorial dants. There is no mode in this country by a certificate of registry in the form (A.) conwhich that security can be obtained, and the tained in the schedule to this act annexed, and result might be, that after the plaintiff had sealed with the seal of office, to be provided ascertained the amount of their demand, they in this behalf, on payment of the fee of ten might be unable to enforce payment of it, shillings, which said memorial shall be in the because I have neither the defendants here, form (B.) contained in the schedule to this act nor have I any property of theirs which could annexed, or to the like effect, and shall state be made available. The result would be, that the name and the place or places of residence after the plaintiffs had ascertained the amount of the author, the title of the work, the persons due to them, and had had their demand estab- respectively by whom the same shall have been Jished on further directions, they would then printed and published, and the date of publicahave to proceed to Scotland, not for the pur- tion, and shall be signed by the author, or, if pose of establishing their demand, but for the he be dead, then by his executor or adminispurpose of obtaining security for the satisfac-trator, and shall be attested by one witness at tion of the demand which had been established; least; and the said officer shall register the but at that time they might not find in Scot- said memorial, by writing a copy thereof fairly land either the defendants, or any property in a book to be kept for the purpose, and he of theirs. Under these circumstanees, the shall file and carefully preserve the original question is whether this Court should carry memorial. the rule so far as to preclude the plaintiff from 2. That no evidence shall be received in any adopting such proceedings as shall ensure them Court of law or equity of any copyright, or of the means of satisfying what will be found to any ownership of or in the same, unless such be the amount due to them; and it does ap-copyright shall have been so registered, and pear to me, that such an extension of the rule would, under colour of doing equity to the defendants, do great injustice to the plaintiffs. such certificate of registry thereof granted as aforesaid; and the certificate thereof so granted shall, without any proof of the signature |