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On the Law of Marriage by Banns.—Practical Points of General Interest.

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due publication; but assuming, at present, that the publication was such as to cause a sufficient disguise of the parties, the most essential fact is that at the period of the

the Ecclesiastical Courts, was one in which But it has also been directly decidede by Dr. Lushington held, that where both the the Ecclesiastical Court, that a marriage man and the woman were aware that the without due publication of banns is not void banns had been published in a manner cal- under the statute 9 G. 4, c. 26, s. 2, when culated to conceal the identity of one of the only one of the parties knew of the false parties, the marriage would be invalid; and publication. The following were the cirthis case has been recently adhered tod by the cumstances as detailed in the judgment of Judge of the Prerogative Court, (Sir Her-Dr. Lushington :-" The libel in this case bert Jenner,) in which the circumstances pleads that Harlow and Amelia Elwood were briefly these:-At the marriage, the were married in a private house in Ireland, minor, one of the parties, was hetween in October 1821. It then pleads that seventeen and eighteen years of age; the James Dennis Wright caused banns of marwoman thirty-four or thirty-five, and a riage to be published between himself and widow, or representing herself as such, and Emma Elwood, spinster, on the 28th of the sister of the master of the school where May, 4th of June, and 11th of June, 1826; the minor was placed; that the marriage and it alleges that she was properly Amelia was clandestine, and continued secret and Elwood the wife of Harlow Elwood, that he unknown to the family of the minor for was living after the publication of the banns, nearly twelve months; that the name of and that he died before the celebration of baptism, by which alone he was generally the marriage, 6th of June, 1826; and the known, was omitted in the publication of question is, whether or not such marriage the banns, and that this was done for the can be pronounced null and void. Now purpose of concealment, and in fraud of the the first objection to this libel is, that the father's rights. "The question therefore is," variation of the names is not such as would said Sir Herbert Jenner, "whether a mar-render the publication of the banns an unriage under such circumstances is good and valid according to the existing marriage law of this country; for under the original Marriage Act, the 26 G. 2, c. 33, the marriage would have been clearly void. The pre-publication Mr. Wright supposed that Mrs. sent statute, the 4 G. 4, c. 76, equally re- Elwood was a spinster; it therefore cannot quires the true names of both parties to be be said that this was a false publication of published, but in order to obviate the incon- banns had with the consent and connivance venience and to prevent the crying injus- of both parties. (He then read the 22d tice which arose out of the law as it formerly clause of the 4 G. 4, c. 76.) The constood, and the cruel injuries to which inno-struction put upon this clause is the same cent parties were exposed, it has been pro- in this as in other Courts, although there vided, that in order to annul a marriage on the ground of the banns having been unduly published, the parties must have knowingly and wilfully intermarried without due publication of the banns;' the construction which has been put upon the 22d section of the 4 G. 4, c. 76, in the few cases as yet determined under it, is, that both parties must be cognizant of the un-siastical Courts. due publication." On the whole," said the learned Judge in conclusion, “I cannot bring my mind to doubt that both parties knowingly and wilfully intermarried without due publication of the banns, and I therefore pronounce this marriage to be null and void." The sentence of the Arches Court in this case was confirmed on appeal by the Judicial Committee of the Privy Council, on the 21st of June, 1836.

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• Wiltshire v. Prince, otherwise Wiltshire, 3 Hagg. Eccl. Rep. 332.

Tongue v. Allen, 1 Cutr. Eccl. Rep. 40.

may be a difference of opinion as to the evidence which may be required. The only conclusion that I should come to would be, that this was a valid marriage, and I therefore reject the libel."

There is therefore a uniformity of opinion in the construction of the Marriage Act in the Common Law and the Eccle

PRACTICAL POINTS OF GENERAL
INTEREST.

RESTITUTION OF PROPERTY.

WE very recently (antè, vol. 13, p. 483) adverted to the practice as to restoring a prisoner's money. In a very late case the following point arose :

The prisoner was convicted of stealing a

e Wright v Elwood, falsely calling herself Wright, I Curt. 49.

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Practical Points.-The Taxes on Attorneys.

Resolved,that it is the opinion of this committee, that for and upon every such certificate, so taken out by any solicitor, attorney, notary, in any of the inns of court, or in the cities of proctor, agent or procurator, who shall reside London or Westminster, the borough of Southwark, the parishes of St. Pancras and St. Mary-le-bone, or within the bills of mortality, or within the city of Edinburgh, there shall be charged a stamp duty of five pounds. mittee that for and upon every such certificate Resolved that it is the opinion of this comso taken out by any solicitor, attorney, notary, proctor, agent or procurator, who shall reside in any other part of Great Britian, there shall be charged a stamp duty of three pounds.

bill of exchange for 1007. and a considerable | annually a certificate of such his admission or sum of money in specie, the property of inrolment.a Lewis Davis. After the verdict, it was stated by the prosecutor and by the officer who apprehended the prisoner, that a horse had been left by the prisoner with a person at Redburn, in Herefordshire, intending that it should be exchanged for another. The officer said there was no doubt that the horse was purchased with the prosecutor's money, as the prisoner had not any money of his own, which fact also appeared from the evidence in the case. The prosecutor requested the Court to make an order for the delivery of the horse to him. Some doubt having been expressed by a gentleman at the bar as amicus curia, as to the power of the Court to make such order, the Common Serjeant consulted the Judges in the adjoining Court, Mr. Baron Gurney and Mr. Justice Williams, and with their assent made the order applied for. Rex v. Powell, 7 Car. & Pay. 640.

THE TAXES ON ATTORNEYS.

THE following extracts have been collected from the Journals of the House of Commons in 1785, relating to the Annual Certificate Duty and Warrants on prosecuting or defending actions. The latter tax, which produced a very large sum, has been repealed; it remains for the profession to effect the repeal of the other, which they will assuredly accomplish if they sufficiently exert themselves; because it is right and expedient that there should be no tax on the administration of justice.

1785, June 9th.-Resolved that it is the opinion of this committee, that for and upon every Warrant, mandate, or authority granted to any solicitor, attorney, notary, proctor, agent, or procurator in Great Britain, to institute, commence, or defend any suit or prosecution in any of his Majesty's Courts at Westminster, or in any ecclesiastical court, or in any of the courts of admiralty or cinque ports, or in any of his Majesty's courts in Scotland, the Great Sessions in Wales, or in any courts in the counties palatine, or in any other court holding pleas, where the debt or damage shall amount to more than forty shillings, there shall be a stamp duty of two shillings and sixpence.

Resolved, that it is the opinion of this committee, that every solicitor, attorney, notary, proctor, agent or procurator, admitted or inrolled in any ecclesiastical court, or in any courts of law or equity in Great Britian, where such courts shall hold pleas of more than forty shillings, shall, previous to his commencing or defending any suit or prosecution, take out

July 4th.-Mr. Rose presented to the House, according to order, a bill for granting to his taken out by solicitors, &c. and certain other Majesty certain duties on certificates to be duties with respect to warrants, &c.; and the same was received and read the first time.

July 5.-Read a second time, and committed to a committee of the whole House.

July 13. After several postponements, the house went into committee this day, and Mr. Gilbert reported that the committee had gone through the bill, and made several amendments thereunto, which they had directed him to report; ordered that the report be received upon Friday morning next.

reported from the committee of the whole
July 15.-Mr. Gilbert, according to order,
house, the amendments which the committee
had made to the bill.
severally put thereupon, several of them were
Upon the questions
disagreed to, and the rest were, with amend
ments to several of them, agreed to by the
house.

bill for inflicting a penalty on attorneys, &c.
A clause was offered to be added to the
who shall act for defendants, unless a stamped
warrant to defend is filed according to the di-
rections of this act.

with the words "Fifty Pounds," resolved that And it being proposed to fill the said blank, the said clause be committed to a committee of the whole house.

the said committee the amendment which the Mr. Michael Angelo Taylor reported from committee had made to the said clause; and greed to by the house; and the said clause upon the question put thereupon, it was aamendments were added by the house to the was added by the house to the bill; then several bill.

July 19.-The house proceeded to take the house being informed that several other asaid report into further consideration, and the said bill, resolved that the bill be re-commited mendments are necessary to be made to the to a committee of the whole house.

taken out, so that the public may know who a It is proper that a certificate should be are authorised to practise, and a moderate fee should be paid for registration; but a tax beyond this is monstrous. ED.

Tares on Attorneys.-Chancery Examiners.-On the Examination of Articled Clerks. 5

the house.

A clause was offered to be added to the bill to exempt from the charge of two shillings and sixpence proceedings in certain inferior courts in Scotland, and the practisers in such courts from the tax for a licence.

July 20.-Mr. Gilbert, according to order, | person (not having been previously admitted reported from the committee of the whole an attorney of the Courts of King's Bench, house, the amendments which the committee Common Pleas, and Exchequer, or one of had made to the bill, and upon the question, them,) who shall apply to be admitted a severally put thereupon, they were agreed to by solicitor of the said Court of Chancery, touching his fitness and capacity to act as a solicitor of the said Court. AND I do hereby direct that the said Examiners shall conduct the examination of every such applicant as aforesaid, in the manner, and to the extent pointed out by the order of the 27th day of July, 1836, and the regulations approved by me in reference thereto, and in no other manner, and to no further extent. (Signed)

Resolved that the said bill be again recommitted to a committee of the whole house.

Mr. Steele reported from the committee that they had made several other amendments to the bill.

July 22.-Mr. Steele reported from the said committee the amendments which the committee had made to the bill, and upon the question, severally put thereupon, they were agreed to by the house.

July 25.-An ingrossed bill for granting to his Majesty certain duties on certificates to be taken out by solicitors, &c. was read the third time; an ingrossed clause was offered to be added to the bill by way of rider, for exempting from the duty proceedings on indictments and informations, and the said clause was thrice read; and upon the question put thereupon, agreed to by the house to be made part of the bill by way of rider.

LANGDALE, M. R.

ON THE EXAMINATION OF
ARTICLED CLERKS.

To the Editor of the Legal Observer.
SIR,

I HOPE you will allow me to trespass on your
patience, while I hazard a few ideas as to the
benefits that might be embodied in the new
system of examination. And once for all, let
me say that the fears, dislike, and annoyance,

Then the amendments were severally pro- said by some of your correspondents to be enposed to be made to the bill, and the said a-tertained by articled clerks at the restoration inendments were, upon the question severally put thereupon, agreed to by the house; and the bill was amended at the table accordingly. Ordered that Mr. Gilbert do carry the bill to the Lords, and desire their concurrence. July 28.-A message from the Lords by Mr. Pepys and Mr. Thomson: Mr. Speaker,the Lords have agreed to the bill intituled 'An Act for granting to his Majesty certain duties on certificates to be taken out by solicitors, attorneys,' &c.

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Aug. 2.-Royal assent by commission to a bill, intituled "An Act for granting to his Majesty certain duties on certificates to be taken out by solicitors," &c.

ORDER OF THE MASTER OF THE
ROLLS,

APPOINTING EXAMINERS FOR 1837-8.

Saturday the 15th day of April, 1837. I Do hereby order and appoint, that John Baines, Richard Mills, John Waineright, and George Gatty, sworn clerks in Chancery, together with Thomas Adlington, Samuel Amory, Benjamin Austen, Michael Clayton, Edward Foss, Richard Harrison, Philip Martineau, Thomas Metcalfe, Charles Ranken, Charles Shadwell, John Teesdale, and William Tooke, Solicitors of the Court of Chancery, be Examiners until the last day of Easter Term, one thousand eight hundred and thirty-eight, to examine every

of olden usage, exist solely in imagination; for as far as my circle (and it is not a limited one,) extends, they cordially concur in its sure promise of benefit, and rejoice at the spur which has converted what perhaps would have been a flagging attention, into a healthy and steady industry. The names of the Examiners afford assurance of honour and kindness; the method of proposing the questions contrasts well with the feverish, and perchance, treacherous ordeal of Surgeons' Hall; and the vigilance and good temper with which you watch over and explain every movement, all unite to strengthen the timid, to encourage the hopeful, and to give to each a pledge of honest and gentlemanly treat

ment.

The plan appears hitherto to have been liable to abuse, in allowing too much freedom to the candidate in selecting, or passing over the questions before him. In cases where a great portion of the questions were unanswered, the examiners would doubtless experience much perplexity, because although de non apparentithey would be unwilling to pluck a young man bus et non existentibus eadem est ratio, yet

on negative evidence, or to make what might be diffidence, undergo the fate of stupidity On the other hand, it might be a cloak for ignorance or idleness. However, they acted like just judges, and giving the benefit of the doubt to the prisoners, they resolved speedily

to amend the law.

In your allusion to the proposed alteration, you say it is likely a candidate will have to select three branches, and if he answers in no other, he will probably be required to reply

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On the Examination of Articled Clerks.

men commence practice, is precisely that when habits are nearly formed, and when it is most essential to catch and direct the wavering current,-this my suggestion, if adopted, would

"correctly" to all of them. Now I do hope that this will not be the inexorable rule: for as questions occasionally fall awkwardly, the most able may fail here; and after a full exposition of every difficulty, may light at last on a tech-effect in many instances, by pointing solely to nicality, which may ruin all; you nevertheless intimate that if a person elects to go upon more than three heads, success in one shall assist deficiency in another, and in such case my objection is met; as it applies where three subjects alone are attempted. Perhaps it inay be, that though the examiners expect answers to all the questions, they do so to have positive proof of capacity or incapacity, and will not insist on a strictly proper reply to each. There is, I think, a little anxiety on these points, and if you could clear them up, you would do us good service.

those pursuits which invigorate the intellect
and qualify for future life; and I feel persuaded
that were degrees, however slight, introduced,
the arrangement would be hailed with delight
as a harbinger of that more solid treasure
which all at least hope for. I say however
slight, as we know that it is the gaining of the
prize, rather than its value, which calls forth
competitors, and though once won it is com-
paratively unheeded, it is only because sur-
passed by those fairer laurels, which the open-
ing path displays.
A COUNTRY ARTICLED CLERK.

On another matter too, I should wish to say a little without any division into classes, why Sir, might not merit be rewarded? Why, when in FROM the disposition which has ever been other professions, talent receives honors on the manifested in your useful periodical, to afford threshold, should our, surely not less deserving to all parties, as far as lay in your power, the or laborious path, be uncheered by distinction? means of bringing their views upon any subWhy may not certificates, for instance, be given, ject connected with our profession under the varying with the acquirements of the candi- notice of its members, I am induced to solicit dates or why, in the hundred different ways your kindness in the insertion of a few rethat might be devised, should not some gratifi-marks which I have thrown together on the cation be awarded, to decided and well-earned superiority? I know some oppose it, as hard and invidious on the remainder; but this, if available at all, reaches every triumph, national or private, and by keeping all on the tame level of mediocrity, would extinguish every useful ambition; and I would further remark, that it falls harshly on those only who are mentally infirm; and such, I submit, would either be benefited by the hint that they have mischosen their calling, or would be happily hindered from commencing it. As for the injury to the indolent, even granting that they have feeling to perceive the loss their own apathy has procured, I would observe that they are not in my opinion fit subjects for legislation, or if they are, it should be by dividing them from their fellow-students, as a warning to some, and a stimulus to all. There are many to whom even self-interest is but a weak in ducement to restrain from pleasure, or to apply with vigour, but who possess a latent fire of emulation that, once cherished, would consume every impediment; aud there are still more, who, content to pass easily with the crowd, trifle away those hours which, were there gradations of reward, would be spent in diligent and cheerful application. To some it might be the "holding turn," that would presage future fame; and to all it would speak in accents that would, with the greater number, find a ready echo. The period at which young

rules recently passed as to the examination of candidates previous to admission: rules which, with all due deference, I submit are very little, if at all, calculated to accomplish the end which they were designed to effect. The profession of the law has unquestionably been not unfrequently subjected to contempt by the misconduct of its members. That such misconduct should be used as an argument against the law as a profession, is, I confess, most futile and absurd. How often has the sacred character been associated with the greatest bigotry and intolerance; with the exercise of passions and feelings the very opposite of the religion which those who assume that characare called upon "in their life and conversation to adorn?" Shall we, on that account, vote religion a bugbear, and its teachers all hypocrites? How often have medical men been the greatest pedants, the vilest empyrics, and the veriest quacks? Shall we on that account, vote their profession useless, and its members a junto of ignorant and designing men? What calling or situation of life is there which has not produced in its followers many notorious for all that is vile, or base, or despicable? Such results are inseparable from every thing that is human, and will continue as long as the ranks and occupations of men shall differ, or the human heart continue what it is.

More than this:-The profession of the law holds out greater temptations to dishonesty Our correspondent is mistaken: we did and misconduct than any other calling: greater not understand that all the answers were ex-inducements are presented to its members to pected to be correctly given; but tha. every question should be answered to the best of the candidate's ability. We have already stated (Vol. XIII, p. 490) that at present no alteration has been made in the plan with which the Examiuers at first set out. ED.

lead them from the path of integrity and rectitude; they are also placed as it were, by the very nature of their possession, upon an eminence, and their actions are narrowly scanned and observed; so that, doubtless, many actions which pass unnoticed in other men are in

Examination of Articled Clerks.- New Bills in Parliament.

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them the subjects of much censure and blame. I and ill-used client could bring the simple In the exercise of their profession also, and story of his wrong before a superior tribunal, in the fair and legitimate practice of the law, then I think we should have a much safer guathey not unfrequently are called upon to adopt rantee for the respectability and honour of the proceedings which are not of the most agree- profession than that which the rules afford. able nature to the parties concerned: in these But while those rules stand as they now are; cases the law is as obnoxious as its professors, while the difficulties which now shield the petand any administrators of it are alike the ob- tifogging and rascally practitioner from the jects of enmity and hatred. Still, I am most punishment he so richly deserves are continwilling to admit, that in many cases the con- ued, the system appears to me very much duct of" the lawyer" has been justly the sub-like establishing a test or touchstone of compeject of reprehension and blame. And for the tency or ability, and when the candidate is purpose of protecting the public from such able to meet and stand that test, he then reconduct, with the view of preventing parties ceives a license to use or employ that ability in think proper: getting into the profession who may be likely any manner or way which he to be guilty of it, and with the design of raising and the profession is as much disgraced, and and exalting the character of the profession, the client is left quite as exposed to injustice and the rules have been avowedly passed: but, in irremediable injury, as he was before the present HY. WN. my humble opinion, if they are not followed system was adopted. by other measures, that object will be in a great measure defeated.

So far as the ability or talent of the future members of the profession is concerned, they may have a tendency to raise and exalt it but what guarantee do they afford that this talent may not be prostituted to the very evil which the rules are designed to remedy? True, indeed, it may be, that the cultivation and nurture of the human mind has a strong tendency to improve and refine the human heart, and this degree of proficiency in the science of the law, which the candidates are required to possess previous to admission, may be looked upon as some security against that misconduct or mal-practice to which I have before alluded. But though the mind may be cultivated and improved, much still depends on the bias which from other causes is given to it. So, though the requisite attainments may be acquired by the law student, yet there are other securities necessary for his directing those attaintments to a proper use: and it may happen that he who possesses the greatest ability may pervert it to the meanest and worst ends. If that ability be once diverted into a wrong course, he will be the more dangerous a character in the profession, and his conduct more injurious to society by the very possession of that talent which the rules require.

may

NEW BILLS IN PARLIAMENT.

LIMITATION OF REAL ACTIONS.

The following is Lord Abinger's bill on this subject:

Whereas doubts have been entertained as to

the effect of a certain act of parliament made in the third and fourth years of his Majesty King William the Fourth, intituled "An Act for the Limitation of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto," so far as the same relates to mortgages; and it is expedient that such doubts should be removed: Be it declared and enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful for any person entitled to or claiming under any mortgage of land, being land within the definition contained in the first section of the said act, to make an entry or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued, any thing in the said act notwithstanding.

The master is required to certify as to several facts: might he not with some propriety be called upon to certify as to the moral character of his pupil? He has generally a means of knowing this. The point might be pressed, and with great reason: but at present I let it pass. On some other occasion, perhaps, with I would at your permission, I may take it up. present submit, that the rules should be followed by some strong provisions as to the conduct of the attorney when in practice. If he abuse the confidence reposed in him,—if he prostitute the ability which the rules require, Whereas an act was passed in the third and to the very mischief they were designed to check, then an immediate cognizance ought fourth years of the reign of his present Mato be taken of such misconduct, and the partyjesty, intituled "An Act for the further guilty of it summarily dealt with according to

his desert.

If this mode of proceeding were adopted, and an easy way left open, whereby an injured

SHERIFFS' COURTS.

This bill, as now "amended," is as follows:

Amendment of the Law and the better Advancement of Justice:" And whereas by the said act it is enacted, that in any action depending in any of the Superior Courts of

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