Page images

Practical Points.Notices of New Books: Tidd 's Practice.

cussed, first at Westminster Hull, find then at Serjeants' Inn, pave a clear and unanimous opinion that no divorce or proceeding in the nature of a divorce in any foreign country, Scotland included, could dissolve u marriage contracted in England, and they sentenced LM'y to seven years' transportation. And he was accordingly sent to the hulks for one or two years, though in mercy the residue of his sentence was ultimately remitted. I take leave to suv, he ought not to have gone to the hulks at all, because he had acted bund fine, though this did not prevent his conviction from being legal. B it he was sent, notwithstanding, as if to (hew clearly that the judges were confident of the law they had laid down, so that never was there a greater mistake than to suppose that the remission argued the least doubt on the part of the judges. I hold it to be perfectly clear, therefore, that L'Mey's case stands as the settled law of Westminster Hall at this day. It has been uniformly recognized since, and in particular, it was repeatedly made the subject of discussion before Lord Eldon himself, in the two appeals of Tovey v. Lindsay, 1 Dow, 117, 131, in the House of Lords, when I furnished his lordship with a note of Lullry's case, which he followed in disposing of both those appeals, so far as it affected them. That case then settled two points, first, that no forcigu proceeding in the nature of a divorce in an ecclesiastical court could effectually dissolve an English marriage; and, secondly, that a Scotch divorce is not such a proceeding in an ecclesiastical court as to bring the case within the exception in the Bigamy Act. 1 Jac. 1, c. II, s. 2, for which nothing less than the sentence of an ecclesiastical court is sufficient."—M'Cartby v. Decaix, 2 Russ. & M.619.


We have recently adverted to several points connected with joint stock companies. We now add the following one, as to whether a shareholder in them is liable to the bankrupt laws.

This was a petition to annul the fiat. One objection was the want of a trading. The alleged trading was, that the bankrupt had taken a few shares in an unincorporated joint stock banking company. The order turned on other points.

Sir George Rose.—Though the 5 & 6 W. 4, c 5G, s. 42, has creattd some little distinction as to concerted finis, yet if any thing more than mere concert exists, the old principles would still apply as to annulling for concert. It is argued, that assuming the bankrupt was huni fide a partner, he of necessity was a trader; but>il by no means follows, from the mere fact of being a member of such a partnership, that the usual consequence of being a trader, liable to the bankrupt laws, follows. In all cases of ordinary partnerships, it would be a consequence, but not the mere holding of shares, as

in this case. As to the remedies against the bankrupt as a partner, it is true they would generally exist; but it would be open to much mischief, if taking shares in a joint stock trading company made the holder a trader liable to the bankrupt laws. Without reference to the case now before the court, I am of opinion that it would require much caution to take out a fiat on such a trading; and my opinion is, that a fiut could not be supported on such trading.—Ex parte Orundrett, 3 Mont. & A. 50.


The New Practice of the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, in Personal Actions, and Ejectment: containing all the Recent Statutes, Rules of Court, and Judicial Decisions, relating thereto. By Wrilliam Tidd, Esq. of the Inner Temple, Barrister at Law. London: Saunders and Benning, 1837. This is an excellent consolidation of the several supplements to Mr. Tidd's Practice, and constitutes, with the ninth edition of that work, the whole body of the Common Law Practice. We hope that, at some future time, the learned author will give the profession a new edition of the entire Practice of the Courts, retaining such parts only of the ninth edition as have not been in any respect altered, and comprising all the new matter of the present volume. This, however, cannot be expected for a considerable time to come; and indeed, we think that it is decidedly the better course to defer the full consolidation of the practice until the changes still projecting have been made, and the operation of those changes have been tried in practice, and the whole matter reduced to something like a settled state. In the mean time the present volume must be of invaluable service to the practitioner. It bears decisive marks of having been composed with the accustomed care, the large experience, and untiring research of the venerable writer.

The importance of the volume will be best appreciated by some extracts from the preface.

"Since the publication of the 9th edition of the author's practice, in Trinity Term 1828, many important alterations have been made in the practice of the Superior Courts of Law at Westminster, by various statutes, rules of court, and judicial decisions. The principal statutes by which these alterations were effected, are the Administration of Justice Act, (11 Geo. 4. & I W. 4, c. 70); the Speedy Judgment and Execution Act, (1 W. 4, c. 7); the 124

Notices of New Books: Tidd's Practice.

Examination of Witnesses act, (1 W. 4, c. 22); the Interpleader act, (1 & 2 W. 4, c 58); the Uniformity of Process act, (2 W. 4, c. 39); and the Law Ameudinent act, (3 & 4 W. 4, c. 4.').

"In pursuance of the power given by the Administration of Justice act, general rules were made by all the Judges, in TrinityTerm 1831, and Hilary term 1832. The rules of Trinity term chiefly relate to the putting in and justifying of special bail; the shortening of declarations in actions of assumpsit, or debt, on bills of exchange, or promissory notes, and the common counts; the delivery of particulars of the plaintiffs demand, under those counts; the time for delivering declarations de bene esse \ the service of declarations in ejectment; the time for pleading; rules to plead several matters; and judgment of mm pros, &c. The object and intent of the rules of Hilary term appear to have been, to assimilate the practice of the different courts, aud to render the proceedings therein more expeditious, and less expensive to the suitors."

After adverting to the several supplements published in 1830, 1832, and 1833, the author proceeds thus:

These supplements, however, were but partial; ami the last of them was published more than three years ago; since which, many important alterations have been made in the practice, by subsequent statutes, rules of court, and judicial decisions. It is therefore hoped that the following work, in which the author has collected and arranged all the recent statutes and rules of court on practical subjects, including those noticed in the above supplements, with the judicial decisions thereon, to the preseut lime, and on other matters of frequent occurrence in practice, will not be unacceptable to the profession.

Under the Law Amendment act, general rules were made by all the judges of the superior courts of common law at Westminster, in Hilary term 1834; Which having been laid the requisite time before both houses of parliament, came into operation on the first day of Easter term following. These rules, which may be considered as the commencement of a new era in pleading, are of two kinds: 1st, general rules, relating to all pleadings; and, 2dly, rules relating to pleading's in the particular actions of assumpsit, covenant, debt, detinue, case, and trespass.

"In treating of pleas in bar, as governed by these rules, the author has considered, in the 27th chapter, 1st, the several grounds of defence, and what pleas, adapted thereto, may be pleaded in actions upon contracts, and for wrougs independently of contract: 2ndly, the power of the judges to make alterations in the mode of pleading, &c. and the rules made by them in pursuance thereof: 3dly, what mnst n iw, since the making of the above rules, be proved by the plaintiff, on the gcueral issue, or common plea in denial of the contract or wrong stated in the declaration: 4tbly, what might have been formerly, and may now be given in evidence thereon by the defendant, or

must be pleaded specially, in actions upon contracts and for wrongs : 5tbly, in what ca,es the special matter may be given in evidence, under the general issue, by act of parliament: (iihiv, the pleas in actions by and against bankrupts, or insolvent debtors, and their respective assignees; or by and against executors or administrators, heirs or devisees: 7thlv, the title, commencement, body, and conclusion of pleas: 8tbly, in what cases the defendant might formerly have pleaded, and is now allowed to plead several matters: and, lastly, the practice as regards the signing, delivering, filing, adding, amending, waiving, abiding by, striking out, or setting aside pleas, &e. And though the new rules of pleading in particular actions do not extend to replications, yet, in order to explain the different modes of replying to pleas in bar, and in what manner the replication should deny or confess and avoid the facts stated therein, the several reported cases which have been recently determined thereon, in actions upon contracts and for wrongs, are noticed in the 28th chapter.

"Some additional rules were also made by the judges, in pursuance of the law amendment act, and of the powers given them by the administration of justice act, relating to the practice of the courts, in Hilary term, 1834, which took effect on the first day of Easter term following. These rules, which are introduced in their proper places, chiefly relate to demurrers, and proceedings in error; aud contain provisions respecting the admission of written documents.

"The judicial decisions of the courts, referred to in the following work, are for the most part founded on the statutes and rules of court before noticed. But besides these decisions, the author has, in order to render his work more extensively useful, collected and arranged the decisions on other matters of frequent occurrence in practice; such as an attorney's right to recover, when part of his bill is taxable, and part not; staying proceedings until security be given for the payment of costs; warrants of attorney, and entering up judgment thereon; the hearing of counsel at the trial; the assessment of damages; and the judge's certificate, to deprive a party of costs to which he would otherwise be entitled, or to entitle him to costs of which he would otherwise be deprived. Particular attention has also been paid to the following important practical subjects; viz. process; appearance; special bail; declaration; motions and rules, and the practice by suminous and order at a judge's chambers; proceedings on the interpleader act; pleas, and pleadings; trials before the sheriff, &c.; the examination of witnesses on interrogatories; trials at nisi prius, and their incidents; costs, interlocutory and final; speedy judgment and execution; and writs of error, aud the proceedings thereon."

On all these various subjects Mr. Tidd has collected the fullest practical information, and stated all the authorities with a degree of pains and care rarely equalled and never surpassed.

[blocks in formation]



This is a bill to consolidate and amend the laws relating to copyright in printed books, musical compositions, acted dramas, and engravings, to provide remedies for the violation thereof, and to extend the term of its duration.

It recites that it is expedient to consolidate and render uniform the laws relating to copyright in printed books, music..1 compositions, acted dramas aud engravings, and to afford greater encouragement to the authors and inventors thereof, by extending the term of their exclusive right therein. The proposed enactments are as follow:

1. Repeal of former acts, 8 Ann, c. 19. 2G. 2, c. 13 (as to engravings). 7 G. 3, c. 38 (as to engravings.) 1/G. 3, c. 57 (engravings). 41 (i- 3, c. 107. 54 G. 3, c. 156 (extendingcopyright in books). 6 & 7 Will. 4. c. 59 (for extending copyright in prints to Ireland.)

2. Interpretation clause.

3. Copyright in any book hereafter to be published to inure to the author for life, and for sixty years, commencing at his death.

4. In case of subsisting copyright in the author, the same shall continue for his life and for sixty years from his death. And if the author be dead and the copyright in his representative, such representative shall have the same for the residue of the term of sixty years from the author's death.

5. Incases of subsisting copyright which has been assigned, the assignee shall enjoy it for the author's life, or for twenty-eight years ; and it shall afterwards revert to the representatives of the author for the residue of sixty years from his death. Proviso, that if a book has been published in parts, the term of the copyright shall run from the publication of the last part. Proviso for the sale of copies printed during the interest of the assignee.

6. Whenever five years shall elapse after the expiration of the twenty eight years, or the author's death, without publication of any works out of print, any one may petition the Lord Chancellor, Master of the Rolls or Vice Chancellor, for liberty to re-publish the same, and re-publish the same on such permission.

7. Five copies of every book to be delivered within a month after demand for the use of the following libraries; British Museum, Bodleian Library at Oxford,'public library at Cainbridge, Advocates' at Edinburgh, Trinity College, Dublin. Penalty for not delivering or receiving the copies. Copies of second editions, &c. not required. Except copieB of additions or alterations. Publishers may deliver the copies to the libraries instead of the Stationers' Company.

8. Book of registry to be kept at Stationers' Hall.

9. Party making a false entry in the book of registry, to be guilty of a misdemeanor.

10. Entries of copyright to be made in the book of registry.

11. Authors first publishing abroad, to be

entitled to copyright in the British dominions, on making entry at Stationers' Hall within one year from the first publication, and forthwith publishing here. Provided that no author publishing abroad shall have copyright here, unless he shall make such entry and forthwith publish.

12. Any one aggrieved by any entry in the registry book, may apply to the Lord Chancellor, Master of the Rolls, Vice Chancellor, or Court of Common Law, to order it to bealtered or expunged.

13. Remedy for the piracy of books or parts of books by action on the case. Proviso for Scotland.

14. Term of the exclusive right in the representation of dramatic works extended to that of authors.

15. Where the sole liberty of representing a dramatic piece now belongs to the author, it shall endure for his life, and for sixty years from his death. And if the author is dead, his representative shall have it for sixty years from his death.

lfi. When the right of representing any dramatic piece shall have been assigned, the right shall continue in the assignee for twentyeight years, or for the life of the author, and afterwards shall belong to the representative of such author.

17. The proprietor of the right of dramatic representation shall have all the remedies given by the act 3 & 4 W. 4.

18. No assignment of copyright of a dramatic piece shall convey the right of representation, unless an entry to that effect shall be made in, the book of registry.

19. Subsisting copyright interest in engravings to remain as before the passing of this act.

20. The engraver of a picture being also, its proprietor, shall have the copyright for the same term as the author of a book

21. Engraver of a picture, with licence of the painter, being the proprietor, shall have the copyright in the engraving.

22. No engraving to be made from the picture without the consent of the painter and proprietor; and if an engraver shall have such consent, he shall have the copyright in the engraving,

23. The copyright in an engraving of an original design shall be in the engraver.

24. Copyright in engraving from the picture, belonging to a public institution shall be in the first engraver. Proviso that other engravings may be made from the same picture.

25. Two copies of registered engravings to be left for the British Museum, and for deposit at Stationers' Hall.

26. Remedy for the piracy of engravings, or copies of engravings, by action on the case.

27. Power to the Lord Chancellor, Vice Chancellor, Master of the Rolls, and Court of Law, to grant injunction in case of piracy.

28. Books or engravings pirated shall become the property of the proprietor of the copyright, and may be recovered by action of seized by warrant of two Justices.

New Bills in Parliament.—Solicitor's Lien, how parted with.


29. No proprietor of copyright commencing after the act, shall sue or proceed for any infringement which shall take place before entry in the hook of registry. Provision for dramatic pieces.

30. Clergymen may lawfully dispose of copyright or copies of books of which they are the authors.

31. Copyright shall be personalty.

32. Saving the rights of the Universities and the colleges of Eton, Westminster, and Winchester.

33. Act to extend to all parts of the British dominions.

34. Act may be amended or repealed during the present session.


The point taken tip as to a party obtaining the possession of his deeds from his solicitor— whether by fraud or otherwise—and thereby putting an end to such lien, cannot, I conceive, be maintained.

I will first clear the case from the matter upon which, I think, we are all agreed: viz. if the deeds come fairly into the hands of the owner, there the lien is entirely gone, without the deeds get back again to the party claiming them. And again: I do not think the circumstance happening cither before or after the time has expired for the solicitor or party claiming the lien to bring his action, need stand in the way. The simple question I consider this: B. has possession of deeds to the estate of ^.,and claims a lien on them for 1000/. due from A. to B. A., either by him self or some one else, steals the deeds from B. (I stay steal, because I would lay out of the question the case of A. bribing a clerk to giv« up the deed*, for such is only a breach of confidence in the clerk, for which he is answerable to his master.)

The arguments go to this: No matter how good the lien may be;—no matter that you Having asserted your legal title, and obtained a verdict for the deeds (as in Harrington v. Price, 3 B & Adol. 170): have been restrained taking the benefit, by equity declaring the lien to be good, and that the deeds shall remain until the lien paid;—if by fraud the deeds be obtained from the holder in very contempt of the decree of Chancery, Chancery can give you no remedy.

I admit it would be absurd indicting a man for stealing that to which he had a legal title; but I will put an equally strong case, and shew the result.

It is undoubted law that a father has the right to the possession of his children, and the King's Bench will assist him in gaining them; and there is no instance in which the aid has been refused. Equity, in some very extreme cases, (admitting the legal right) has interfered to restrain this legal right, and deprive the legal owner. I need scarce allude to the

case of Mr. Wellesley, in 2 Russ. 1, where all the cases will be found, and in which case the Court deprived Mr. Wellesley of his legal right, appointing two other persons in his stead. I need scarce call to mind the committal of Mr. Wellesley for the contempt of the decree depriving him of his leiral right. In that case (2 Russ. & Myl 639), Mr. Wellesley, thnigh claiming his privilege of parliament, was committed for contempt of such decree, and in the Fleet might he have lain till his death, if he had not restored the child again into the possession of the Court. Now if the arirum»nt 1 impeach be true, how comes it that Mr. Wellesley did not assert his legal title to retain the children. The two cases cannot be distinguished. It is true that, if the party ge ting his deeds chose to go to the Fleet, he might do so. and lie ihcre till his death. 1 suppose th • Court to make an order for the re-delivery of the deeds, and the party's committal to lake place fur contempt of such decree. I admit it lies ou me to shew that the Court would entertain such a bill, and make such decree, where previous to the party so obtaining his deeds, there was no suit so as to raise the question of contempt of Court. To shew this, it must be proved that a lien may exist, though the article upon which the party claims his lien has been parted with: and if this be proved, it would, I conceive, require no argumeut to support the bill, in the case under consideration.

One line of cases in which the Courts interfere to maintain a lien, though the subject matter of lien be parted with, is that where a purchaser gets possession of property without paying for it, the deeds expressing the consideration to be paid, are given up, yet against the purchaser and all parties claiming from him as volunteers, take 'he property subject to such lien. In Mtchteth v. S;/mmnns, 15 Ves. 329, the cases on tins head arc reviewed by Lord ElHnn.

1 will now mention a case, which, if rightly decided, would seem entirely to rule the present. A solicitor in possession of deeds relating to leaseholds, claims a lien. The assignee of the owner bnys the property at a sum much less than the lien, but on receipt of this, the solicitor gives up lite rIerrfs, a subsequent sale by the assignee for double the previous price, being declared void as against the bankrupt's estate: the solicitor was held still to have a lien for the amount he was unpaid. Ex pnrir Morgan, 12 Ves. 6. Here it is to be observed the solicitor parted voluntarily with the deeds, and yet the lien was held to exist. It would seem to me, after this, to be monstrous to hold that a party may by main force get possession of his deeds, and laugh at the person having the lien. This would be certainly very inconsistent, and the amount of an order in equity would be this :—The lien is good—the deeds to he retained until the lien be paid, unless, in the mean time, the owner be enabled to steal the same, in which case the deeds are to stand discharged of the lien. It is not denied that equity interferes to Affidavits Sworn in France,— Coroners' Expenses Bill.


uphold a lien. Admitting this, I think it auiounts to an absurdity to say the Court would uot entertain a hill for a re-delivery of the deeds under the circumstances in this case.



To the Editor of the Lf/rnl Observer.

35, Faubourg St. Honored Paris, May, 22, 18.i7.


Much uncertainty formerly existed as to the competence of French magistrates (Jatrrs de

Puixj to administer oaths in matters of British jurisprudence in France.

The incidents of a practice which implies as mil a knowledge of the laws of two countries,

i tlie constant technical application of two languages, have compelled me to unite the French to the English mode of exercising the vrofesslon.and guided by theusagesof the French lur, it has been my practice to take charge of, aud by intercourse with French lawyers, further all business which in England would he transacted hy a solicitor, but which, in France, mi?ht fall within the province of an advocate. It was the knowledge of this which probably iuduced the Procureur de Roi to first communicate to me the order of the Garde dei Scenw relative to affidavits in France in matters of British jurisprudence, requesting that I would give it the utmost publicity in England. There appeared no course so favourable as to address you upon the subject, which I had the honour to do, and my letter appeared in the Legal Observer of May 31, 18.14. It has been since matter of surprise, that from ignorance or other cause some Juges de Paix, in Paris, have consented to receive English affidavits, the contents of which they are unable to read, tin- date in the jurat being frequently insetted in Frenelt.

A letter from a .luge de Paris, of the third arrondisement of Paris, which appeared in the Gazette des Tribunmtx of the 20th inst. bears too much on this subject to admit of my passing it unnoticed; and I venture to subjoin a translation:

"The seal of the Justice de Paix, of the third arrondisement, was stolen yesterday afternoon from my secretaire; the seal itself is not of sufficient value to have induced the theft, it can only have been taken with a view to authenticate some false document."

"This fraud could not avail in Paris, or even in France, since it would be easy to ascertain whether the signature was mine; but the same could not be the case in Loudon or England, where an incorrect notion is entertained 'that the Justices de Paix in France have the tame competence as magistrates in England.'

"I have frequently, but as vainly, endeavoured to make English people understand, when they have cither presented a paper for my legalization, or have asked me to receive an oath,

that these formalities were entirelv foreign to my attributions: they have replied'by showing me the lelter3 and instructions received from their lawyers in England, in which it was insisted, that by the law of their country the .luge de I'aix only could receive or authenticate the document in question. 1 have yielded at length to their solicitation."

The letter goes on to state the precautions taken in the change of form of the seal, to replace that stolen, and is signed


"Juge de Paix du .'ird Arrondisement de


It is probable that this " yielding to the solicitations" of parties, will give rise to a repetition nf the order of the Garde des Sceaux, particularly as the practice has not been confined to the third arrondisement. _ I take this opportunity of referring to these circumstances, as my former letter on the sub. ject might otherwise appear inconsistent with the actual practice.

I have the honour to he,

Your obedient servant, Okev,
Consul to the British Embassy at Paris.


We are happy to announce that many of the alterations which wc suggested in this bill, have been made in committee. There is to be a new scale of fees made hy the Justices at Quarter Sessions, by which the payment to Coroners are to be regulated; anil they are provisionally to have 6s. 8d. more on every inquest. The repayments to Coroners are to be made at the Quarter, not at the Petty Sessions; and other judicious alterations are made. We now add an extract from a communication from another Coroner of respectability and experience, to which we call attention.

"There. remains but one other subject, and that is the insufficient remuneration of coroners. Their fees were fixed by 25 G. 2, c. 29, (now 85 years ago) at 1/. for holding an inquest, and 9rf. a mile for every mile they travel from home to hold such inquest; but nothing is allowed for returning, nothing for a second day's attendance in case of adjournment, and nothing for attending the Quarter Sessions and Assizes. At the time the allowance was made, one guinea per diem was the general allowance for professional men, and 9H. a mile would furnish a chaise and pair of horses. I have heard no one attempt to justify so small a sum now. In the year 1816 a bill passed the House of Commons, doubling the present fees, and was lost in the Lords by a majority of one only, in a house consisting of less than a dozen peers, when two Chief Ju»

« PreviousContinue »