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


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 un. riage under such circumstances is good and due publication; but assuming, at present, valid according to the existing marriage law that the publication was such as to cause a of this country; for under the original Mar- sufficient disguise of the parties, the most riage Act, the 26 G. 2, c. 33, the marriage essential fact is that at the period of the 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 may be a difference of opinion as to the the ground of the banns having been ur- evidence which may be required. The only duly published, the parties must have conclusion that I should come to would be, knowingly and wilfully intermarried with that this was a valid marriage, and I thereout due publication of the banns;' the con- fore reject the libel.” struction which has been put upon the 22d. There is therefore a uniformity of opi. section of the 4 G. 4, c. 76, in the few nion in the construction of the Marriage cases as yet determined under it, is, that Act in the Common Law and the Eccleboth 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

PRACTICAL POINTS OF GENERAL parties knowingly and wilfully intermarried

INTEREST. without due publication of the banns, and I therefore pronounce this marriage to be

BESTITUTION OF PROPERTY. null and void.” The sentence of the We very recently (antè, vol. 13, p. 483) Arches Court in this case was confirmed on adverted to the practice as to restoring a appeal by the Judicial Committee of the prisoner's money. In a very late case the Privy Council, on the 21st of June, 1836. following point arose :

| The prisoner was convicted of stealing a Wiltshire v. Prince, otherwise Wiltshire, 3 Hagg. Eccl. Rep. 332.

1 e Wright vi Elwood, falsely calling herself a Tongue v. Allen, I Cutr. Eccl. Rep. 40. Wright, 1 Curt. 49.

A 2

* Practical Points.The Taxes on Attorneys.

bill of exchange for 1001. 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

Resolved that it is the opinion of this com

mittee, that for and upon every such certificate, stated by the prosecutor and by the officer

so taken out by any solicitor, attorney, notary, who apprehended the prisoner, that a horse

proctor, agent or procurator, who shall reside had been left by the prisoner with a person in any of the inns of court, or in the cities of at Redburn, in Herefordshire, intending London or Westminster, the borough of Souththat it should be exchanged for another. wark, the parishes of St. Pancras and St. The officer said there was no doubt that the Mary-le-bone, or within the bills of mortality. horse was wurchased with the prosecutor's or within the city of Edinburgh, there shall be

charged a stamp duty of five pounds. money, as the prisoner had not any money

Resolved that it is the opinion of this comof his own, which fact also appeared from unittee that for and upon every such certificate the evidence in the case. The prosecutor so taken out by any solicitor, attorney, notary, requested the Court to make an order for proctor, agent or procurator, who shall reside the delivery of the horse to him. Some in any other part of Great Britian, there shall doubt having been expressed by a gentle-| be charged a stamp duty of three pounds. man at the bar as amicus curia, as to the

1 July 4th.—Mr. Rose presented to the House, power of the Court to make such order, the

| according to order, a bill for granting to his

Majesty certain duties on certificates to be Common Serjeant consulted the Judges in

uited the Juages in taken out by solicitors, &c. and certain other the adjoining Court, Mr. Baron Gurney and duties with respect to warrants, &c.; and the Mr. Justice Williams, and with their assent same was received and read the first time. made the order applied for. Rex v. Powell, July 5.-Read a second time, and committed 7 Car. & Pay. 640.

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 cominittee had gone THE TAXES ON ATTORNEYS. through the bill, and made several amendments

thereunto, which tbey had directed hiin to reThe following extracts have been collected / port; ordered that the report be received upon

Friday morning next. from the Journals of the House of Commons

July 15.—Mr. Gilbert, according to order, in 1785, relating to the Annual Certificate reported from the committee of the whole Duty and Warrants on prosecuting or defen- house, the amendments which the committee ding actions. The latter tax, which produced had made to the bill. Upon the questions a very large sum, has been repealed; it re- severally put thereupon, several of them were mains for the profession to effect the repeal disagreed to, and the rest were, with amenda of the other, which they will assuredly ac

alve ments to several of them, agreed to by the

house. complish if they sufficiently exert themselves: because it is right and expedient | bill for inflicting a penalty on attorneys, &c.

A clause was offered to be added to the that there should be no tax on the adminis- | who shall act for defendants, unless a stamped tration of justice.

warrant to defend is filed according to the di

rections of this act. 1785, June 9th.-Resolved that it is the

| And it being proposed to fill the said blank, opinion of this committee, that for, and upon with the words « Fifty Pounils,” resolved that every Warrant, mandate, or authority granted the said clanse he

the said clause be committed to a comınittee to any solicitor, attorney, notary, proctor,

of the whole house. agent, or procurator in Great Britain, to in

Mr. Michael Angelo Taylor reported from stitute, commence, or defend any suit or pro- l the said committee the amendment which the secution in any of his Majesty's Courts at

committee had made to the said clause; and Westminster, or in any ecclesiastical court, or

upon the question put thereupon, it was ain any of the courts of admiralty or cinque

greed to by the house; and the said clause ports, or in any of his Majesty's courts in

was added by the house to the bill; then several Scotland, the Great Sessions in Wales, or in

amendinents were added by the house to the any courts in the counties palatinc, or in any

bill. other court holding pleas, where the debt or

| July 19.-The house proceeded to take the damage shall amount to more than forty shil.

said report into further consideration, and the lings, there shall be a stamp duty of two shillings

house being informed that several other a. and sixpence.

mendiments are necessary to be made to the Resolved, that it is the opinion of this committee, that every solicitor, attorney, notary,

said bill, resolved that the bill be re-commited

to a committee of the whole house. proctor, agent or procurator, adinitted or inrolled in any ecclesiastical court, or in any a It is proper that a certificate should be courts of law or equity in Great Britian, where taken out, so that the public may know who such courts shall hold pleas of more than forty are authorised to practise, and a moderate fee shillings, shall, previous to his cominencing should be paid for registration; but a tax be. or defending any suit or prosecution, take out yond this is enonstrous. Ed.

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

July 20.—Mr. Gilbert, according to order, 1 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, sererally put thereupon, they were agreed to byl

them,) who shall apply to be admitted a the house.

solicitor of the said Court of Chancery, A clause was offered to be added to the touching his fitness and capacity to act as a bill to exempt from the charge of two shillings solicitor of the said Court. And I do hereby and sixpence proceedings in certain inferior direct that the said Examiners shall conduct courts in Scotland, and the practisers in such the examination of every such applicant as courts from the tax for a licence.

aforesaid, in the manner, and to the extent Resolved that the said bill be again recommitted to a committee of the whole house.

pointed out by the order of the 27th day of Mr. Steele reported from the committee July, 1836, and the regulations approved that they had made several other amendments by me in reference thereto, and in no other to the bill.

manner, and to no further extent. July 22.-Mr. Steele reported from the said

(Signed) LANGDALE, M. R. committee the amnendments which the committee had made to the bill, and upon the question, severally put thereupon, they were agreed to by the house.

ON THE EXAMINATION OF July 25.-An ingrossed bill for granting to his Majesty certain duties on certificates to be

ARTICLED CLERKS. taken out by solicitors, &c. was read the third time; an ingrossed clause was offered to be

To the Editor of the Legal Observer. added to the bill by way of rider, for exempting from the duty proceedings on indictments and

Sir, informations, and the said clause was thrice

I Hope you will allow me to trespass on your read; and upon the question put thereupon,

patience, while I hazard a few ideas as to the agreed to by the house to be made part of the

benefits that might be embodied in the new bill by way of rider.

system of examination, · And once for all, let Then the amendments were severally pro

me sav that the fears, dislike, and annoyance, posed to be made to the bill, and the said a

said by some of your correspondents to be enmendments were, upon the question severally

tertained by articled clerks at the restoration put thereupon, agreed to by the house; and

of olden usuge, exist solely in imagination ; for the bill was amended at the table accordingly.

as far as my circle (and it is not a limited one,) Ordered that Mr. Gilbert do carry the bill

extends, they cordially concur in its sure proto the Lords, and desire their concurrence.

mise of benefit, and rejoice at the spur which July 28.-A message from the Lords by Mr.

has converted what perhaps would have been Pepus and Mr. Thomson: “Mr. Speaker.the a flagging attention, into a healthy and steady Lords have agreed to the bill intituled • An Act

industry. The names of the Examiners afford for granting to his Majesty certain duties on

assurance of honour and kindness; the method certificates to be taken out by solicitors,

of proposing the questions contrasts well with attorneys,' &c.

the feverish, and perchance, treacherous ordeal Aug. 2.-Royal assent by commission to a

of Surgeons' Hall; and the vigilance and good bill, intituled " An Act for granting to his Ma

temper with which you watch over and explain jesty certain duties on certificates to be taken

every movement, all unite to strengthen the out by solicitors,” &c.

timid, to encourage the hopeful, and to give to each a pledge of honest and gentlemanly treat


The plan appears hitherto to have been liable

to abuse, in allowing too much freedom to the ROLLS,

candidate in selecting, or passing over the quesAPPOINTING EXAMINERS FOR 1837-8.

tions before him. In cases where a great por

tion of the questions were unanswered, the Saturday the 15th day of April, 1837. examiners would doubtless experience much I do hereby order and appoint. that John / perplexity, because although de non apparentiBaines, Richard Mills, John Waineright,

| bus et non existentibus eadein est ratio, yet

ght, they would be unwilling to pluck a young man and George Gatty, sworn clerks in Chan-l on negative evidence, or to make what inight cery, together with Thomas Adlington, 1 be diffidence, undergo the fate of stupidity. Samuel Amory, Benjamin Austen, Michael | On the other hand, it might be a cloak for Clayton, Edward Foss, Richard Harrison, ignorance or idleness. However, they acted Philip Martineau, Thomas Metcalfe, Charles like just judges, and giving the benefit of the Ranken Charles Shadwell John Teesdale doubt to the prisoners, they resolved speedily

to amend the law. and William Tooke, Solicitors of the Court

In your allusion to the proposed alteration, of Chancery, be Examiners until the last you say it is likely a candidate will have to, day of Easter Term, one thousand eight select three branches, and if he answers in no hundred and thirty-eight, to examine every other, he will probably be required to reply

On the Examination of Articled Clerks.

“ correctly'a to all of them. Now I do hope men commence practice, is precisely that when that this will not be the inexorable rule: for as habits are nearly formed, and when it is most questions occasionally fall awkwardly, the most essential to catch and direct the wavering curable may fail here ; and after a full exposition rent,--this my suggestion, if adopted, would of every difficulty, may light at last on a tech. effect in inany instances, by printing solely to nicality, which may ruin all; you nevertheless those pursuits which invigorate the intellect intimate that if a person elects to go upon and qualify for future life ; and I feel persuaded more than three heads, success in one shall that were degrees, however slight, introduced, assist deficiency in another, and in such case the arrangement would be hailed with delight my objection is met ; as it applies where three as a harbinger of that more solid treasure subjects alone are atteinpted. Perhaps it which all at least hope for. I say howerer inay be, that though the examiners expect slight, as we know that it is the gaining of the answers to all the questions, they do so to prize, rather than its value, which calls forth have positive proof of capacity or incapacity, competitors, and though once won it is comand will not insist on a strictly proper reply to paratively unleeded, it is only because sur. each. There is, I think, a little anxiety on passed by those fairer laurels, which the openthese points, and if you could clear them up, ing path displays. you would do us good service.

À COUNTRY ARTICLED CLERK. On another matter too, I should wish to say a little : without any division into classes, why Sir. inight 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 inight be devised, should not some gratifi-marks which I have thrown together on the cation be awarıled, to decided and well.erned | rules recently passed as to the examination of superiority? I know some oppose it, as hard candidates previous to admission : rules which, and invidious on the remainder; but this, if with all due deference, I submit are very little, available at all, reaches every triumph, national if at all, calculated to accomplish the end or private, and by keeping all on the tame level which they were designed to effect. The proof mediocrity, would extinguish every useful fession of the law has unquestionably been ambition; and I would further remark, that it not unfrequently subjected to contempt by the falls harshly on those only who are mentally misconduct of its members. That such misinfirm; and such, I submit, would either be conduct should be used as an argument against benefited by the hint that they have mischosen the law as a profession, is, I confess, most their calling, or would be happily hindered from futile and absurd. How often has the sacred cominencing it. As for the injury to the indo- character been associated with the greatest lent, even granting that they have feeling bigotry and intolerance; with the exercise of to perceive the loss their own apathy has passions and feelings the very opposite of the procured, I would observe that they are religion which those who assume that characpot in my opinion fit subjects for legislation, are called upon “ in their life and conversation or if they are, it should be by dividing them to adorn ?"* Shall we, on that account, vote from their fellow-students, as a warning to religion a bugbear, and its teachers all hypo. soine, and a stimulus to all. There are many crites? How often have medical men been 10 whom even self-interest is but a weak in the greatest pedants, the vilest empyrics, and ducement to restrain from pleasure, or to the veriest quacks? Shall we on that account, apply with vigour, but who possess a latent vote their profession useless, and its members fire of emulation that, once cherished, would a junto of iguorant and designing men ? What cousume every inpediment; and there are still calling or situation of life is there which has more, who, content to pass easily with the not produced in its followers many notoricrowd, trifle away those hours which, were ous for all that is vile, or base, or despicthere gradations of reward, would be spent inable? Such results are inseparable from diligent and cheerful application. To some it every thing that is human, and will continue might be the “holding turn,” that would pre- as long as the ranks and occupations of men sage future fame; and to all it would speak in shall differ, or the human heart continue what accents that would, with the greater puber, it is. find a ready echo. The perior at which young More than this :-The profession of the

| law holds out greater temptations to dishonesty . Our correspondent is piisiaken: we did and misconduct than any other calling : greater not understand that all the answers were ex-inducements are presented to its meinbers to pected to be correctly given; but tha, every lead them from the path of integrity and recquestion should be answered to the best of titude; they are also placed as it were, by the the candidate's ability. We have already very nature of their possession, upon an emistated (Vol. XIII, p. 490) that at preseut no nence, and their actions are narrowly scanned alteration has been made in the plan wiih and observed ; so that, doubtless, many acwhich the Examiuers at first set out. ED. tions which pass unnoticed in other mes are in

Examination of Articled Clerks.- New Bills in Parliament.

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 inost 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 getting into the profession who may be likely any manner or way which he may think proper: 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 my humble opinion, if they are not followed system was adopted.

Hy. Wn. 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 NEW BILLS IN PARLIAMENT, 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

LIMITATION OF REAL ACTIONS. the rules are designed to remedy? True, in The following is Lord Abinger's bill on this deed, it may be, that the cultivation and nur-subject : ture of the human mind has a strong tendency

Whereas doubts have been entertained as to to improve and refine the human heart, and

| the effect of a certain act of parliament made this degree of proficiency in the science of the law, which the candidates are required to pos

in the third and fourth years of his Majesty sess previous to admission, may be looked upon

King William the Fourth, intituled “An Act as some security against that misconduct or

for the Limitation of Actions and Suits relating mal.practice to which I have before alluded.

to Real Property, and for simplifying the But though the mind may be cultivated and

Remedies for trying the Rights thereto," so improved, much still depends on the bias

far as the same relates to mortgages; and it is

expedient that such doubts should be removed : which from other causes is given to it. So,

Be it declared and enacted by the King's most though the requisite attainments may be ac

excellent Majesty, by and with the advice and quired by the law student, yet there are other

consent of the Lords Spiritual and Temporal, securities necessary for his directing those at

and Commons, in this present Parliament taintments to a proper use : and it may happen

assembled, and by the authority of the saine, that he who possesses the greatest ability may

| That it shall and may be lawful for any person pervert it to the meanest and worst ends. If

entitled to or claiming under any mortgage of that ability be once diverted into a wrong

land, being land within the definition container course, he will be the more dangerous a cha

in the first section of the said act, to make an racter in the profession, and his conduct more injurious to society by the very possession of

entry or bring an action at law or suit in equity

to recover such land at any tiine within twenty that talent which the rules require. The master is required to certify as to several

years next after the last payment of any part

of the principal inoney or interest secured by facts : might he not with some propriety be

such mortgage, although more than twenty called upon to certify as to the moral character of his pupil ? He has generally a means of

years may have elapsed since the time at which knowing this. The point might be pressed,

the right to make such entry or bring such and with great reason : but at present I let it

| action or suit in equity shall have first accrued, pass. On some other occasion, perhaps, with

:1 | any thing in the said act notwithstanding. your permission, I may take it up. I would at present submit, that the rules should be fol. lowed by some strong provisions as to the con

SHERIFFS' COURTS. duct of the attorney when in practice. If he This bill. as now " amended." is as fol. abuse the confidence reposed in him,-if he

lows: prostitute the ability which the rules require, to the very mischief they were designed to

Whereas an act was passed in the third and check,—then an immediate cognizance ought

| fourth years of the reign of his present Vato be taken of such misconduct, and the party jesty, intituled “ An Act for the further guilty of it summarily dealt with according to Amendment of the Law and the better Ad. his desert.

vancement of Justice:" And whereas by the If this mode of proceeding were adopted, said act it is enacted, that in any action des and an easy way left open, whereby an injured | | pending in any of the Superior Courts of

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