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On the Law of Marriage by Banns.—
Practical Points of General Interest.
the Ecclesiastical Courts, was onec in which Dr. Lushington held, that where both the man and the woman were aware that the banns had been published in a manner calculated to conceal the identity of one of the parties, the marriage would be invalid; and this case has been recently adhered tod by the Judge of the Prerogative Court, (Sir Herbert Jenner,) in which the circumstances were briefly these:—At the marriage, the minor, one of the parties, was between seventeen and eighteen years of age; the woman thirty-four or thirty-five, and a widow, or representing herself as such, and the sister of the master of the school where the minor was placed; that the marriage was clandestine, and continued secret and unknown to the family of the minor for nearly twelve months; that the name of baptism, by which alone he was generally known, was omitted in the publication of the banns, and that this was done for the purpose of concealment, and in fraud of the father's rights. "The question therefore is," said Sir Herbert Jenner, "whether a marriage 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 present statute, the 4 G. 4, c. 76, equally requires the true names of both parties to be published, but in order to obviate the inconvenience and to prevent the crying injustice which arose out of the law as it formerly stood, and the cruel injuries to which innocent parties were exposed, it has been provided, 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 undue 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.
• Wiltshire T. Prince, otherwise Wiltshire, 3 Hag?. Eccl. Rep. 332. 4 Tongue v. AlUn, 1 Cutr. Eccl. Rep. 40.
But it has also been directly decidede by the Ecclesiastical Court, that a marriage without clue publication of banns is not void under the statute 9 G. 4, c. 26, s. 2, when only one of the parties knew of the false publication. The following were the circumstances as detailed in the judgment of Dr. Lushington:—" The libel in this case pleads that Harlow and Amelia Elwood were married in a private house in Ireland, in October 1821. It then pleads that James Dennis Wright caused banns of marriage to be published between himself and Emma Elwood, spinster, on the 28th of May, 4th of June, and 11th of June, 1826; and it alleges that she was properly Amelia Elwood the wife of Harlow Elwood, that he was living after the publication of the banns, and that he died before the celebration of the marriage, 6th of June, 1826; and the question is, whether or not such marriage can be pronounced null and void. Now the first objection to this libel is, that the variation of the names is not such as would render the publication of the banns an undue 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 publication Mr. Wright supposed that Mrs. Elwood was a spinster; it therefore cannot be said that this was a false publication of banns had with the consent and connivance of both parties. (He then read the 22d clause of the 4 G. 4, c. 76.) The construction put upon this clause is the same in this as in other Courts, although there 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 Ecclesiastical Courts.
PRACTICAL POINTS OF GENERAL INTEREST.
RESTITUTION OF PBOPERTT.
We very recently (ante, 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 vt Elwood, falsely calling herself Wright, 1 Curt. 49.
bill of exchange for 100/. and a considerable sum of money in specie, the property of 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 wns 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 curite, 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 mude the order applied for. Rex v. Powell, 7 Car. & Pay. 640.
THE TAXES ON ATTORNEYS.
Tun following extracts have been collected, from the Journals of the House of Commons in 178a, 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 H'arrant, 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 dutyof two shillings and sixpence.
Resolved, that it is the opinion of this committee, that every solicitor, attorney, notary, proctor, agent or procurator, admitted or iurolled 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
annually a certificate of such his admission or inrolment.a
Resolved ,that it is the opinion of this committee, that for and upon every such certificate, so taken out by any solicitor, attorney, notarv, proctor, agent or procurator, who shall reside in any of the inns of court, or in the cities of 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.
Resolved that it is the opinion of this committee that for and upon every such certificate so taken out by any solicitor, attorney, notarv, proctor, agent or procurator, who shall reside in any other part of Great Britian, there shall be charged a stamp duty of three pounds.
July 4th.—Mr. Rose presented to the House, according to order, a bill for granting to his Majesty certain duties on certificates to be taken out by solicitors, &c. and certain other duties with respect to warrants, &c.; and the same was received and read the first lime.
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 re
fort; ordered that the report be received upon riday morning next.
July 15.—Mr. Gilbert, according to order, reported from the committee of the whole house, the amendments which the committee had made to the bill. Upon the questions severally put [thereupon, several of them were disagreed to, and the rest were, with amend' roents to several of them, agreed to by the house.
A clause was offered to be added to the bill for inflicting a penalty on attorneys, &c. who shall act for defendants, unless a stamped warrant to defend is filed according to the directions of this act.
And it being proposed to fill the said blank, with the words " Fifty Poumls," resolved that the said clause be committed to a committee of the whole house.
Mr. Michael Angela Taylor reported from the said committee the amendment which the committee had made to the said clause; and upon the question put thereupon, it was agreed to by the house; and the said clause was added by the house to the bill; then several amendments were added by the house to the bill.
July 19.—The house proceeded to take the said report into further consideration, and the house being informed that several other amendments arc necessary to be made to the said bill, resolved that the bill be re-commited to a committee of the whole house.
a It is proper that a certificate should be taken out, so that the public may know who are authorised to practise, and a moderate fee should be paid for registration; but a tax beyond this is monstrous. Ed.
Tates on Attorneys.—Chancery Examiners.
.— On the Examination of Articled Clerks. 5
July 20.—Mr. Gilbert, according to order, reported from the committee of the whole house, the amendments which the committee had made to the bill, and upon the question, severally put thereupon, they were agreed to by the hoase.
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 lax for a licence.
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 ito 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 bdl by way of rider.
Then the amendments were severally proposed to be made to the bill, and the said amendments were, upon the question severally thereupon, agreed to by the house; and 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. Pepyt and Mr. Thornton: "Mr. Speaker.Jthe Lords have agreed to the hill intituled 'An Act for granting to his Majesty certain duties on certificates to be taken out by solicitors, attorneys,' &c.
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 EXAMINEES FOR 1837 8.
Saturday the 15/A 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 auadred and thirty-eight, to examine every
person (not having been previously admitted an attorney of the Courts of King's Bench, Common Pleas, and Exchequer, or one of them,) who shall apply to be admitted a 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) Langdale, M. R.
ON THE EXAMINATION OF ARTICLED CLERKS.
To the Editor of the Legal Observer.
I Mope 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, said by some of vour correspondents to be entertained by articled clerks at the restoration 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, lias 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 treatment.
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 apparentibus et non existtntibus eadem est ratio, yet they would be unwilling to pluck a young man 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
6 On the Examination
"correctly1'* to nil of them. Now I do hope that this will not be the inrxoritble rule: for as questions occasionally fall awkwardly, the most able may fail here ; and after a full exposition of every difficulty, may light at lust on a technicality, 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 may 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.
On another matter too, I should wish to say a little: without any division into classes, why might not merit be rewarded? Why, when in other professions, talent receives honors on the threshold, should our, surely not less deserving or laborious path, be uncheercd by distinction? Why may not certificates, for instance, be given, varying with the acquirements of the candidates? or why, in the hundred different ways that might be devised, should not some gratification be awarded, to decided and well-timed 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 fulls harshly on those only who are mentally infirm; and such, 1 'submit, would either be benefited by the hint that they have mischoscn their calling, or would be happily hindered from commencing it. As for the injury to the indolent, eveu granting that they have feeling to perceive the loss their own apathy bus procured, I would observe that they are not in my opiuiou 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 10 whom even self-interest is but a weak inducement to restrain from pleasure, or to apply with vigour, but who possess a latent tire of emulation that, once cherished, would consume every impediment; aud there are still more, who, couteut to puss easily with the crowd, trifle awuy 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
•Our correspondent is mistaken: we did not understand that alt the answers were expected to be correctly given; but tlia. every question should be answered to the best of the candidate's ability. We have alreadystated (Vol. XIII, p. 490) that at present no alteration has been made in the plan with which the Exumiuers at first set out. Ed.
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 effect in many instances, by pointing solely to those pursuits which invigorate the intellect and qualify for future life ; aud 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 comparatively unheeded, it is only because surpassed by those fairer laurels, which the opening path displays.
A Country Articled Clerk.
From the disposition which has ever been manifested in your useful periodical, to afford to all parties, as far as lay in your power, the means of bringing their views upon any subject connected with our profession under the notice of its members, I am induced to solicit your kindness in the insertion of a few remarks which I have thrown together on the 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 culled upon " in their life and conversation to adorn i" Shall we, on that account, vote religion a bugbear, and its teachers all hypocrites? How often huve 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 and misconduct than any other culling: greater inducements are presented to its members to 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
them the subjects of much censure and blame. In the exercise of their profession also, and in the fair and legitimate practice of the law, they not uufrequently are called upon to adopt proceedings which are not of the most agreeable nature to the parties concerned: in these cases the law is as obnoxious as its professors, and any administrators of it are alike the objects of enmity and hatred. Still, I am most willing to admit, that in many cases the conduct of " the lawyer " has been justly the subject of reprehension and blame. And for the purpose of protecting the public from such conduct, with the view of preventing partie getting into the profession who may be likely to be guilty of it, aud with the design of raising and exalting the character of the profession the rules have been avowedly passed: but, in my humble opinion, if they are not followed 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 ithe 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 chi. racter in the profession, and his conduct more injurious to society by the very possession of that talent which the rules require.
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 your permission, I may take it up. I would at
firesent submit, that the rules should be folowed 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, to the very mischief they were designed to check,—then an immediate cognizance ought to be taken of such misconduct, and the party 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
and ill-used client could bring the simple story of his wrong before a superior tribunal, then I think we should have a much safer guarantee for the respectability and honour of the profession than that which the rules alford. But while those rules stand as they now are j while the difficulties which now shield the pettifogging and rascally practitioner from the punishment he so richly deserves are continued, the system appears to me verv much like establishing a test or touchstone ot competency or ability, and when the candidate is able to meet and stand that test, he then receives a license to use or employ that ability in any manner or wav which he may think proper: and the profession is as much, disgraced, aud the client is left quite as exposed to injustice and irremediable injury, as he was before the present system was adopted. Hv.vvn.
NEW BILLS IN PARLIAMENT.
LIMITATION OF REAL ACTION'S.
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 he 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, aud by the authority of the same, That it shall and may be lawful for any person entitled to or claiming under any mortgage of 'and, 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 thin£ in the said act notwithstanding.
Whereas an act was passed in the third and fourth years of the reign of his present .Majesty, intituled "An Act for the further 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