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On Legal Examinations and Prizes.—Selections from Correspondence.
than the distant prospect of being authorized, at the end of his term, to pursue his profession fur his own emolument.
It is not twelve months since the date of my articles, and at that time I naturally enough thought how diligent I should he, and how attentively 1 should read, in order to qualify myself for my examination: hut now how often is Blackstone bid aside, for more delightfull "converse" with Shakespeare and Milton, or with the lighter novels of the present day. Now this I hold would not he the case, were there some immediate reward in view for my exertions; and this observation,! am of opinion, applies to other students equally with myself.
( propose, that the candidates for the prizes, should be classed according to the time they have been attending to the profession, t. g. a candidate of four years' standing not to be allowed to go in for tiie same prize as one who has only served one year of his articles. If we are to be put upon the same footing with the students for other professions, let us not be so in having to undergo an examination only, but let us be so in all respects. The medical students at St. Bartholomew's and Guy's Hospitals, have yearly prizes given to them : the same induces inents to exertion are also held out at the College of Surgeons, anil Apothecaries' Hall. At the Universities, scholarships are numerous, but for the student panting after distinction in the Legal Profession, the wide gap of futurity and the uncertain chance of distinction and success is alone open, though indistinctly, to his view. B. *
I have read with great pleasure, some letters which appeared in your journal, advocating the principle, of giving prizes to the candidates for examination: the beneficial effects which would result from such a system? no one can deny. The former writers on this subject, have proposed various ingenious ways for the distribution of the prizes, or honors—forgetting that the grand object had yet to he accomplished, viz. procuring prizes to offer.
We very naturally ask ourselves, by whom ought those prizes to be given? by the Examiners? We can hardly" expect gentlemen who gratuitously devote a portion of their time and attention in the laborious office of examination, should also contribute their money, for the promotion of a science for which they have already stood forward. For my own part, I think the better plau for starting such an object would be, for the candidates to raise a fund amongst themselves, which could be laid out judiciously, in the purchase of legal works, to be placed in the hands of the Examiners, and by them distributed to the candidates in ihe same way as if the prizes were given by the Examiners themselves.
The advantages of this plan are easily perceived, for the student would have all the stimulants for exertion that he would have if he had not contributed a forthing to the prize; the contribution need not be large, say bt, or 10*., either of which sums would not be felt by
'any student. If perchance he should be unfortunate enough not to obtain a prize, he would still find himself possessed of a quantum of legal knowledge, for ,tbe attainment of which he would previously have given a much greater sum.
I do not doubt but that the Examiners who are so anxious to co-operate in raising the character and respectability of the profession, and to encourage talent and industry in iti junior branches, would have no objections to award the prizes to the successful competitors.
This plan would hold good with any lew number of contributors, a list of whom cook) be made out, and delivered with the works which are chosen, to the Examiners, to award the prizes as between such contributors only.
I beg to suggest this plan to the candidates for the next examination, and should any of them enter into my views of the subject, I shall be happy to contribute, and to gire my as-istance in carrying au object like this into practice. T. H.
SELECTIONS FROM CORRESPONDENTS.
Your publication is caleulated to prove use. fill to every branch of the profession, if it advocates the interest of every department. I have been articled and educated for the pro. fession, but owing to events which man cannot always foresee, I am obliged to seek for a situation. The first question invariably ssked, is, have you been articled? that proves an insurmountable barrier. Now Sir, there is great illiberality in this. Let a man have the highest legal attainments, and let his character hear the strictest scrutiny, he is deprived of the means of earning his subsistence by this feeling of self-interest. Supposing a master dreaded a clerk ingratiating himself with his clients so as to form a connection, the requisite notices and examination would afford sufficient time to rid him of such a clerk. The surgeon takes an assistant who has served his apprenticeship; why, therefore, should not a lawyer take a clerk who has served his articles i In the end,! shall have to abandon my profession most probably, to seek my fortune abroad, regretting the time I entered its pale, and the years consumed in fruitless labour. I trust Sir, you will form an exception to the general rule I have adopted, and have the liberality to insert this as a warning to young men about to enter the profession, of what they must expect to meet with, if their resources fail after their clerkship is served. t
I am sure the law clerks ought to be extremely obliged |o you for endeavouring to 209
Correspondence.— Superior Courts: Vice Chancellor.
bring about an alteration in the hours of attendance, more congenial to themselves, and beneficial to their employers.
Thnugh I am nut one of those who have been immediately placed under an obligation to your Journal, yet, interested as I am in the welfare of a gentleman in the profession, I beg to offer iny humble thanks for your endeavours, and 1 reirret that so much of your useful periodical has been devoted to the subject of erening attendance without producing any desirable effect. Lawyers are seldom blind to their own interests, yet I am told that the alteration required, would be more advantageous to their interest than the present system. Is it either an antipathy to innovation, however beneficial, or a disinclination to oblige those who serve them, that has rendered nugatory ill the means adopted for the removal of a serious evil i S. M.
OFFICE ATTENDANCE.—CLERKS' SALARIES.
Tu the Editor of The Legal Observer.
With reference to the correspondence in your publication on these subjects, I would observe as to the first, that unless the service of notices, summonses, &c. are ordered by the Courts to be made before six o'clock in the erening, much inconvenience and trouble will be experienced by closing the offices of solicitors at that hour; and as to the small remuneration received by law clerks for their services, it is unquestionable that none but offices oflarge practice (whichare a very small number in proportion to the whole London practitioners) can afford to increase the salaries, in consequence of the great reduction of their fees, without a corresponding reduction of their expences. T.
Bice Cfcanccllor'rf Court.
SECURITY FOB TRUST MONET.—LIABILITY OF TRUSTEES.
Trustees lent a trust fund to their solicitor in the matter of the trusts, on equitable security at 5 per cent, interest, without explaining the nature of the security to the eestuis que trust: Held, that the trustees should make up the deficiency of the fund, arising from the insufficient security, with interest on the whole fund at 4 per cent. only.
The bill was filed against trustees for an account of money left in trust for the plaintiffs. It appeared that William Miles, by his will, gave his personal estate to the defendants, on trust after his death to collect and invest the same in government or real securities, and to pay the proceeds thereof to the testator's widow and sister in the manner in the will mentioned, and on the events therein mentioned, to divide the capital between the tes
tator's two sons and two daughters equally, but the shares of the daughters to be secured to their sole and separate use respectively, for life, remainder to their children respectively. The testator's widow and sister died in 1830, the events on which the fund was devisable. The trust accounts were soon afterwards made up anil settled at the house of the solicitor, who had long acted for the testator himself, and after his death, for the defendants in respect of the trust property. The share of each son and daughter was then and there found, and declared to be 1836/. 6s. The sons' shares were paid to them, but the shares of the two daughters were left with the solicitor at 5 per cent, interest, upon the security of title deeds of freehold property which he had contracted to purchase. There was no proof that the nature of the security was explained to the eestuis que trust when ihey agreed to leave the money with the solicitor. He became a bankrupt in 1834, and the trustees obtained, by petition to the Court of Bankruptcy in the .usual way, a sale of the bankrupt's interest in the estate of which they held the title deeds, but the produce of the sale fell short of realizing the trust fund with the interest. The bill, therefore, which was filed on behalf of the two daughters and their respective children, prayed that the defendants should be ordered to make good the deficiency of the fund, with the arrears of interest, at 5 per cent.
Mr. Jacoh, Mr. Ginllestone, and Mr. O. Anderdon, for the plaintiffs.—The plaintiffs were entitled to the immediate payment of the arrears of the interest. The exact deficiency of the proceeds of the security was not yet ascertained, and as to that they would be content to take a reference. They insisted on the liability of the defendants immediately to the payment of the arrears of interest, and to make up the deficiency of the fund as soon as it could be ascertained.
Mr. Knight and Mr. Bichner, for the defendants.—The terms of the will authorised the defendants to lay out the money on the security of the purchased estate, which, though equitable estate, was real security, and of which the full benefit has been obtained for the eestuis que trust, as if it were legal estate. The plaintiffs and defendants were induced to leave the money with the solicitor on account of the higher rate of interest; and for that reason also the plaintiffs declined to invest the money in government securities. They well knew that five per cent, interest could not be had without risk. It was therefore to be presumed that they well knew the nature of the security.
His Honor the Vice Chancellor was of opinion that the defendants were not authorised to invest the fund on this security. There was no proof that the two women consented to the investment, and in order to bind them by acquiescence, evidence should be given that the nature of the security was clearly explained to them. But as they now repudiated that investment, they could not be held 210
Superior Courts: Rolls; King's Bench.
entitled to that high rate of interest. The defendants must be held liable to make good what maybe found due to the plaintiffs, upon an account to be taken by the master of the two sums of 1836/. 6*.; and 1836/. 6*., with interest at 4 per cent.; the arrears of interest so to be found, to be paid as soon as it can be ascertained.
Hooker and others v. Plaits and another, Sittings at Lincoln's Inn, June 24, 1837.
DOWER AND RENT-CHARGE.—ELECTION.
A testator devised all his lands and hereditaments to trustees, until his children all attained twenty-one, and then to his children, subject to a rent-charge, with power of distress to his widow, to whom he gave other considerable benefits by his will. Held, that the widow was not put to her election between the rent-charge and her dower, but might enjoy both.
This was a bill for dower by a widow who had been in irried before the 1st of January, 1834. (See 3*4 W. 4, c. 105, s. 14). It stated the will of her late husband, who thereby devised all his copyhold estatei, previously surrendered to the uses of the will, and all his freehold hereditaments, to trustees to apply the rents, &c. for the maintenance and education of his children until the youngest of them should attain his age of twenty-one; then to his children in equal shares as tenants in common, subject however to an annuity to his widow, with a power of distress to her to recover the same. He also gave his widow, during her widowhood, all his furniture, and all the rest and residue of his personal estate absolutely, after giving some legacies thereout; and he appointed hor his executrix. The trustees paid the annuity regularly, and also for some time a third of the rents and profits of the freehold estates; and on their discontinuing the latter payment, she filed the bill against them and the children.
Mr. 1'einberton and Mr. Smith, for the widow. The real question in this case was whether the plaintiff was to be put to elect between the annuity charged on the land, and her dower. There must be an indication of intention of the testator to exclude the widow from dower, or some benefit must be given inconsistent with it. The gift of a rent charge was not sufficient, and the amount of the charge in this case being only 12/. a year, together with the residue of the personal estate, did not shew an intention to deprive the widow of her legal right. The devise to the children of all the copyhold and all the freehold estate, conveyed no more than the devisor could legally give—it was a devise subject to the wife's legal share, there being no words of exclusion, or implying an intention to exclude her. They referred to Villa Real v. Lord Galway,'- and insisted that this case did
not fall within the principle of that, or of Roadley v. Dixon?1 The gift to the widow in the last case was quite inconsistent with dower. Several of the cases there cited supported this case.
Mr. Berrey, for the trustees.—The devise of all the rents and profits of the testator's hereditaments to the trustees, for the benefit of the children until they attained their age, and to them absolutely when they all came of age, excluded dower to the widow. The gift of an annuity, with power of distress, was sufficient to put the widow to her election. Cer. tainly there was no case deciding that it was not sufficient for that purpose. The point did not arise in Roadley v. Dixon, which in other respects was an authority against the claim of dower in this case, as was also Villa Real v. Lord Galway.
Lord Longdate, M. R.—It was not improbable that the testator had not any notion at the time that he was making his will that his widow was to have dower in addition to the benefits he thereby gave her. The Court, however, could not act on such a supposition against the operation of law. There was no gift to the widow in the will, as in Roadley v. Dixon, inconsistent with her enjoyment of dower out of the testator's estates, subject to dower j nor was therfe any indication ofinten. tion to exclude her. There must therefore be a reference to the master to inquire and report what real estates, subject to dower, the testator had at the making of his will and at his death.
Dowson v. Bell, Sittings at the Rolls, June 28, 1837.
[Before the Four Judges.]
Where one of several defendants has remoted an indictment by certiorari, the Court will not, except on very particular grounds, afterwards impose terms upon him as to the trial of the indictment.
In this case a certiorari had been obtained by one of the defendants to remove an indictment from the Sessions into the Court. The defendant', on obtaining the certiorari, entered into the recognizances required by the statutes 5 W. & M., c. 11; 8 & 9 W. 3, c . 33; and 5 & 6 W. 4, c. 33.
Mr. Montague Chambers now moved for a rule to shew cause why a procedendo should not issue, unless all the defendants undertook to appear and plead on this certiorari, and take short notice of trial for the sittings after tfiis term. The effect of refusing this application would be, that there would be two trials instead of one, for there must first be a trial of the defendant who had removed the indictment into this Court, and then a trial of the remaining defendants in the Courts below; and there
Superior Courts: King's Bench.
migbt be different judgments in respect of the same offence.
Lord Penman, C. J.—If this rule is granted, the defendant who has pot the certiorari will not be aide to try at all this term. Hid trial will b« made to depend on the other persons coming in. The possible evil of two trials cannot be remedied at the expetice of the defendant who has obtained a certiorari, and entered into the recognizances required by statute. That difficulty will be obviated by the prosecutor serving the rule on them at once; and, at all events, a temporary delay as to one defendant would be better than having two trials; and without a rule of this sort, the prosecutor has no means of pressing the other defendants to go to trial at the same time.
Mr. Justice Litllednle.—There is but one instance of a motion of this kind, imposing terms on a defendant who had removed an indictment | by certiorari, having ever been granted, and j that was under very particular circumstances : j that was the case of Rex v. Hunt,"- which occurred 16 years ago, and the same rule has never been granted since. I do nut like to introduce any new practice.
Per Curiam.—Rule refused.
Rex v. Xetcton and others, T.T. 1837. K. D. F.J.
NOTICE OF APPEAL.
A party irho appeals against a borough rate made under the authority of b Hf b W. 4, c. 76, s. 92, must state in his notice of appeal, that he is a party aggrieved, or the notice trill be insujjicient. Mr. Bingham in Easter Term obtained a rule to shew cause why the defendant should not be ordered to enter continuances and hear an appeal against a rate made ou one Francis Turner of Poole, made by the mayor and council of that borough. The affidavit on which he applied, stated that Turner had served the following notice of appeal on the mayor, town clerk, and clerk ol the peace, high constable, and the former town clerk of the said borough.
"To the mayor and town council of the borough of Poole. I, F, T. being a burgess of the borough of Poole, and called upon to pay the rats; or assessment hereinafter mentioned, do hereby give you, and each and every of you, notice, that I intend to appeal, and shall appeal at the next general quarter sessions of the peace to be holden in anil for the said borough on the 10th of April next, against a borough rate, at a meeting of the council of the said borough held on Monday and Tuesday the "2d and 3rd of Jan. last, ordered and resolved to be raised for payment of the expenses to be incurred in carrying into effect the provisions of the Municipal Act. Dated," &c.
« To T. A., Esq., town clerk ; to T. A , clerk of the peace; B. J., high constable, and B. H. P. Esq."
The affidavit then went on to state, that the appeal was entered with the clerk of the peace; but at the last Lady Day Sessions, the recorder refused to hear the appeal, on the ground that the notice was insufficient, as it did not directly state that the appellant was a party aggrieved in the way in which he was; and the recorder also refused to enter and respite the appeal to the next sessions. The learned counsel contended, that the notice sufficiently shewed that Mr. Turner was a party grieved by the rate; but at all events, the recorder ought to have heard the appeal. In Ilex v The Justices of Westmoreland,it was decided, that it is not necessary in a notice of appeal against a county rate to specify the grounds of the appeal; but if the appellant states in his notice of appeal, things which are not so, the Court of quarter sessions ought to adjourn the appeal if that Court thinks that the respondents have been misled by the terms of the notice, or otherwise to hear it.
Sir W. Follett and Mr. Burstow shewed cause.—This is a question on the construction of that part of the Municipal Reform Act, which gives the town councils the power of imposing borough rates. The words of part of the 92d section are, " and in case the borough fund shall not be sufficient for the purposes aforesaid, the council of the borough is hereby authorised and required, from time to time to estimate as correctly as may be, what amount in addition to such fund will be sufficient for the payment of the expenses to be incurred in carrying into effect the provisions of this act; and in order to raise the amount so estimated, the said council is hereby authorised and required from time to time to order a borough rate in the nature of a county rate, to be made within the borough; and if any person shall think himself aggrieved by such rate, it shall be lawful for him to appeal to the recorder hereinafter mentioned at the next quarter sessions for the borough in which such rate shall have been made; and such recorder shall have power to liear and determine the same, and to award relief in the premises as in the case of an appeal against any county rate." It is, therefore, necessary to sec how an appeal against a county rate could be decided. The55 G. 3, c. 51, is the last act on county rates, and the Nth section regulates the decision of appeals. That section gives the right of appeal to the churchwardens, overseers or other inhabitants of any parish who shall think the parish aggrieved by any rate for any of the reasons therein stated. But that does not give to the individual a right to appeal against a rate levied on himself. The right of appeal is on the part of the parish alone. [Coleridge, J.—Because the rate itself is made not on persons, but on parishes]. The same mode is adopted in the Municipal Corporation Act. All the cases shew that where a statute gives a right of appeal to a party aggrieved, he must state that he is so, or must shew such facts as lead to that inevit
Superior Courts: King's Bench; King's Bench Practice Court.
able conclusion. Rex v. Essex Justices* reviewed and confirmed in Rese v. West Riding of Yorkshire Justices,' Rex v. Westmoreland,'1 and Rex v. Bl<icltawton.e The appeal here is not given to all the burgesses, but to those who pay; nor yet to all who are called upon to pay, but to those who are aggrieved by the payment. It does not appear from this notice that this party falls within any of these descriptions. As to the duty of the sessions to enter and respite the appeal, nothing of that sort is provided for in the Municipal Corporation Act. [Mr. Justice Patteson.—In ordinary cases we hold that when once the sessions are in possession of the case, they have power to adjourn it.]
The Attorney General, and Mr. Bingham, in support of the rule. The objection here taken is most frivolous, and is not warranted by the principle laid down in the cases referred to. The cases of Rex v. Essex, and Rex v. West Riding of Yorkshire Justices, depended on the particular words of the highway acts; and in the former of these cases Lord Tenterden said distinctly that the decision of the Court proceeded on ihe ground that the statute had limited the right of appeal to a certain class of persons, and that that being so, the party was bound to shew that he was a person of that class. In this case that fact sufficiently appears, for the applicant states that he is a burgess of the borough of Poole, and called upon to pay the rate. This is not like a case of a county rate, for there only the parish can appeal against the rate; but here the rate may be levied on individuals who may therefore appeal against it. The cases of Rex v. Westmoreland, and Rex v. Blackairfon, do not affect the present. What was said there as to the form of the notice, was said obiter. There is no decision against this applicant who is now called on to go through a form which the statute itself does not prescribe. But it is quite clear that the recorder here ought to have respiled the appeal. Rex v. Wilts Justices.1 [Mr. Justice Coleridge.—The clause there supposes the case of there not being a reasonable notice, and then gives the sessions power to adjonrn.] But Mr. Justice BatIley distinctly states, that having received the appeal, it was competent to the justices to adjourn it.
Lord Denman, C. J.— All this discussion mii,ht have been avoided by the slightest pains. There must be a notice of appeal. The act does not dispense with that. By saying that he is a party aggrieved, the complainant could at once get relief from the sessions. We must see whether, on the construction of this act, with relation to that one to which it refers, this practice ought to be strictly adhered to. We must look into these acts.
The Court took time to consider.
Lord Denman, C. J., on a subsequent day said, in this case we have given great con
sideration to the arguments that have been pre. sented to us, and our opinions have somewhat differed at different times; but the result of our deliberations now is, that we can put no other meaning on the words of the statute but that which Lord Tenterden and Mr. Justice BatIley have put in the cases which were cited to us in the course of the argument. We must therefore hold that this notice, which does not state that the party was a party aggriered, is on that account insufficient. I state this opinion with some degree of regret in the present case, but that regret is diminished by tbe consideration that the statement for the want of which this notice is liable to objection, might have been very easily made, and in all subsequent cases can be easily introduced. The result is that the rule must be discharged.
Rule discharged —The King v. The Recorder of PooleiT. T. 1837- K. B. F. J.
Binjj'rf fiend) ffractire Court.
FROOF OF SERVICE OF RULE NISI.
An affidavit staling a rule nisi to compute It htve been left in the letter box of the defendant's chambers, and which the deponent was afterwards informed by a person ten. dent iu the chambers, was forwarded to the defendant, is sufficient to entitle the plain, tiff to make the rule absolute. Alexander applied to make a rule to compute principal and interest on a bill of eichange absolute on an affidavit of service. The affidavit stated that the rule nisi had been left in the letter-box at the chambers of the defendant, no one being there to receive it. On the next day inquiries were made of a person resident in the chambers, and he said that he hud found the rule, and had sent it to the defendant.
Williams, J.—I think that the service is suf. ficient.
Rule absolute.—Carew v. Winslow, E. T. 18o7. K. B. P. C.
AFFIDAVIT OF MERITS. DEPONENT.
The deponent to an affidavit of merits, produced in order to set aside interlocutory judgment, must be the defendant, hisattor. ney or agent, or must be shewn to hate had the management of the cause.
J. Jervis had obtained a rule nisi for setting aside interlocutory judgment, regularly signed in this cause, on payment of costs, on an affidavit of merits; and
R. V. Richards now shewed cause. The person by whom the affidavit was made described himself as the clerk to the defendant's attorney, but it was contended that this did not sufficiently shew that he was acquainted with the case to entitle the defendant to have judgment set aside on the grounds alleged iu the affidavit. In Morris v. Hunt, 1 Chit. Rap. 97, it was held, that an affidavit of merits must be made by the defendant, his attorney, or agent, but even if the Court would not now be so strict, it should at least have been shewn that