« PreviousContinue »
Bankrupts.---Price of Stocks.
Ironmonger. Scott, Lincoln's Inn Fields : Statters, William, and John Statters; Mellor, Lage Plaskitt, Gainsborough. Aug. 11.
caster, Cotton Spinners. Adlington & Co., Owen, Samuel, Nantwich, Chester, Mercer and Bedford Row: Winstanley & Co., Preston.
Draper. Jilne & Co., Temple : Bent, Man- | Aug. 8. chester July 28.
Savage, John, Circus Street, Mary-le-bone, VicPreston, Henry, Birmingham, 'Retail Brewer. | Tualler. Abbott, Off. Ass. : Jay, Serjeant's
Imett, Lyon's Inn, Strand, or Birmingham. Inn, Fleet Street. Aug. 18.
Simpson, John, Spalding, Lincoln, Hatter. Forbes Palmer, John, Coleshill Warwick, Scrivener.
& Co., Sleaford : Lambert, John Street, BedSmith, Coleshill : Broughton & Co., Falcon ford Row. Aug. 22. Square. Aug. 15.
| Southam, John, Tillotson Place, Waterloo Road, Pope, Henry, East Retford, Nottingham, Wine Boarding House Keeper. Rickards & Co.,
and Spirit Merchant. Makinson & Co., Tem- Lincoln's Inn Fields : Foster, Wolverhampton,
ple: Sewell & Co., East Retford. Aug. 15. i Staffordshire. Aug. 11. Pickard, James, Wortley, Leeds, York, Clothier. Turner, Stanhope, and Jonas Pilling, Bolton-le
Robinson & Co., Essex Street, Strand : Ward, Moors, Lancaster, Iron Founders. Aug. 15. Leeds. Aug. 4.
[No attorney or official assignee gazetted.] Postan, Thos. George, Aldersgate Street, London, Tipping, Richard, Birmingham, Gun and Pistol
Auctioneer, Appraiser, and Undertaker. Tur Manufacturer. Smith, Lyon's Inn, Strand, quand, or. Ass. : Broughton & Co., Falcon and Birmingham. Aug. 18. Square. Aug. 8.
Timmins, Samuel, Birmingbam, Brass Founder. Parkes, Isaac, Deritend, Aston, near Birmingham, Bigg, Southampton Buildings, Chancery Lane:
Warwick, Metallic Pen Manufacturer. Austen Haywood, Birmingham. July 25. & Co., Raymond Buildings, Gray's Inn : Williains, John, Cardiff, Glamorgan, Draper. Palmer & Co., Birmingham. Aug. 22.
Whitmore, Off. Ass. : Parker, Saint Paul's Reynolds, Jonathan, jun., Coppice Row, Clerken Churchyard. July 25.
well, Brewer. Eduards, Off. Ass. : Greshan Williams, John Bish, Regent Street, Stationer. & Co., Castle Street, Holborn. Aug. 11.
Pennell, Off, Ass. : Messrs. Arden, Clifford's Roots, James, Cross Keys Mews, Mary-le-bone, Inn Passage. July 21.
Lane, Dealer in Milk and Dealer in Hoggin Wood, William, Gravesend, Kent, Carpenter and and Gravel, and Carman. Edwards, Off. Ass. :) Builder. Belcher, Off. Ass. : Newbon, Great Willoughby, Clifford's Inn. Aug. 18.
Carter Lane, Doctor's Commons. Aug. 18. Richardson, William, Thornthwaite, Crosthwaite, Walker, John, Old Kent Road, Chymist and Drug
Cumberland, Woollen Manufacturer. Lead gist. Alsager, Off. Ass. : Clarke & Co., Crabitter, Staple Ion : Ansell, Keswick. August ven Street, Strand. Aug. 18. 18.
Worthington, Jolin, and Joseph Coltman, StockRawlins, John, Curtain Road, Shoreditch, Dealer
port, Chester, Drapers. Bower & Co. Chanin Building Materials. Edwards, Off. Ass. :
cery Lane: Lingard & Co., Heaton Norris, Gray, jun., Flemming's Street, Kingsland | Chester. Aug. 18. Road. Aug. 22.
Williams, Thomas, Newport, Monmouth, Rope Richards, Mary Ann, and Eliza Reece, Wolver
Maker. Crosby, Bristol: Bicknell & Co., mpton, Stafford, Milliners and Dress Ma-1 Lincoln's Inn Fields. Aug. 15. kers. Rickards & Co., Lincoln's Ion Fields : Weston, Warwick, Gracechurch Street, London, Foster, Wolverhampton. Aug. 22.
Merchant. Edwards, Off. Ass.: Wood & Co., Ramsbottom, James, Liverpool, Drysalter. Messrs. Corbet Court, Gracechurch Street. Aug. 1.
Bazter, Lincoln's Inn Fields : Webster, Man- | Widnell, Henry, Kidderminster, Worcester, Carchester. Aug. 22.
pet Manufacturer. Michael, Red Lion Square: Robson, Robert, and Jobn Prudhoe Robson, New
Bird & Co., Kidderminster : Dangerfield, castle-Upon-Tyne, Builders and Cartwrights. Lincoln's Inn Fields : Brinton, Kidderminster. Plumtree, Lamb's Buildings, Temple : Cram
facturer. Brookfield, Warwick Court, Gray's
Wine Merchant. Belcher, Off. Ass. : Davison,
Bread Street, Cheapside. Aug. 4.
Wednesday, Aug. 23.
210 il Size Lane: Scholefield, Leeds. Aug. 4.
3 per Cent. Reduced Russell, Nathaniel, Northallerton, York, Flax
3 per Cent. Consols
91 Dresser and Grocer. Hall & Co., Verulam
34 per Cent. Reduced
100 100 99 Buildings, Gray's Inn: Hirst, Northallerton.
1. New 34 per Cents. -
yg Aug. 1.
Long Annuities -
15 1-16 1 Smith, David, Smithy Mills, Addle-Cum-Eccup, I Indis
cup, India Bonds -
50 48 pm. York, Corn Miller. Battye & Co., Chancery | South Sea Old Annuities
Ditto New Annuities, .. 90 1
47 49° 46 48 Pall Mall East. Aug. 8.
pm. Scott, David, Flint, Iron and Coal Master. Cox,
Lincoln's Ian Fields: Oldfield, Pendre, Holy-
The Legal Observer,
SATURDAY, SEPTEMBER 2, 1837.
“Quod magis ad nos
REFORM IN CHANCERY. gests that it might at any rate be qualified in
"Ist. Where a person sui juris and in the
same interest with the plaintiff (i. e. baving We now resume the subject of Chancery
such an interest in the suit that he might have Reform
Y I joined in it as a plaintift) is made a defendant, (see ante, p. 281). , In our first the bill should call upon him in the alternative, notice of Mr. Garratt's pamphlet, we have either to appear and answer the bill, or else to stated his opinions on bills of discovery and appear and watch the proceedings; and the injunction bills. He next adverts to suits subpæna should be in a corresponding form. seeking equitable relief; and he considers The party served with such a subpæna should first, the pleadings in Equity ; secondly, the
have an option either to answer the bill, or evidence taken in the cause ; and thirdly,
(after appearing by a clerk in court) to have the judgment or decree of the Court upon court, that he appeared merely to watch the
an entry made with the plaintiff's clerk in those pleadings and evidence: and he con- I proceedings. In the latter case, he should be siders that in all these points the present considered as adınitting the plaintiff's title and system is defective.
his own to be as stated by the bill, and the We intend to follow him through each of
cause should be heard against him, as if upon these heads, and first as to the pleadings.
bill and answer. In other respects he should Mr. Garratt notices the well-known rule in
| be treated as a party to the cause, and served
with notices of all proceedings. Equity that all parties interested must be
L“ 2dly. Where a class of persons not named before the Court, and he states fairly the as individuals is, or, according to one construcdifficulty of the draftsman as to the applica- tion (if there be a question) inay be, interested tion of this rule. In some cases it has been in the fund to be adıninistered, yet, if the exerelaxed, and the Chancery Commissioners
cutor, administrator, trustee, or other person were of opinion that the relaxation might go
responsible for the due application of the further with advantage.
fund, adınits that all individuals of that class “The misfortune
are parties to the suit, either plaintiffs or dehowever is,” says Mr. Garratt, “ that the
att, that the fendants, and if their respective titles, as discretion which the Court may, but rarely belonging to that class, are also admitted by does exercise, at the hearing of the cause, all who have an interest to dispute them, the affords no guide to the counsel who draws Court should act on that admission ; it being the bill and who feels it necessary in the understood, that the person responsible for the present state of the law, to make all interest.
due application of the fund is not protected by
the decree of the Court against the claims of ed persons parties to the suit, plaintiffs or
any person excluded by such admission, it defendants, except in those cases which are
fraudulent or erroneous. If the class should expressly excepted by decision. He feels comprise some who are, and others who are his character as a pleader involved in so not, sui juris, and all who are sui juris, as well framing his bill that his client may not be the person responsible for the administration turned round at the hearing for want of of the property, admit the titles of all such
persons, the Court might proceed on such ada parties.”
mission, it being understood that such decree He then mentions the great expence and
"will not protect the person responsible for the delay which this rule brings upon the fund against the parties who are not then swi suitors, more particularly in common suits juris, if their right should be affected by an for the administration of assets, and he sug- improper admission of title in others.
VOL. XIV.-N0. 417.
“ 3dly. If, in a similar case, the person re- he is pressed with question upon question. sponsible for the application of the fund, It is quite otherwise when counsel has to preshould not fully and voluntarily admit, that all pare interrogatories for examining a witness in persons of the class are parties to the suit, but Equity. He is not (in theory at least) allowed should ask the Court to ascertain who are the to put leading questions: and when in order individuals comprised in that class, it would to avoid this difficulty, he puts them in a genethen be necessary for the Court to send to the ral form, they are liable to be misunderstood Master such an inquiry as is now sent in every both by the examiner and the witness. This case of a class of persons being interested : is particularly the case, where the witness be. but I would suggest, that those persons, who ing adverse, or for some other cause, the solicicome in aud establish their claims before the tor does not, before he lays instructions before Master, should (upon obtaining or being served counsel for drawing interrogatories, ascertain with the order confirming the Master's report) |from the witness himself what precise facts he be at liberty to appoint a clerk in court, and can prove. However wide,' says Mr. Plushould thereupon be treated in all subsequent mer, one of the examiners of the Court of proceedings as if they had been made parties Chancery, the interrogatory is of the real by supplemental bill. They may, however, facts, the examiner cannot vary it to meet not be sufficiently acquainted with the previous thern : sometimes it is so cramped, that the proceedings to enable them to protect tbeir statement of the witness cannot be admitted interests; and in such a case they will be ad. under it; and sometimes it is so vague, that the vised not to appoint a clerk in court. A sup- point inquired after is not apparent, and an plemental bill would then be necessary; but indefinite indistinct answer is the result." I see no sufficient cause for requiring them to “ The secrecy too,” he adds, of the “ examni. answer it.”
nation appears, to say the least of it, of very “Much expense and delay are now occasion doubtful policy. It throws an extremely heavy ed to the plaintiff, by getting in answers, which responsibility upon the examiner. If the wit. are quite unnecessary, from persons whoseness has omitted to mention, or the examiner title is fully stated by the bill. Those persons to take down, a material statement, or if the incur expense themselves in putting in the witness has misconceived a question, or the answers, and the plaintiff incurs expense in examiner his answer, the defect is rarely distaking office copies of the answers, and in the covered till it is too late to supply or correct length of the briefs in many of the subsequent it." (Report, Appendix B. p. 543, 544.) proceedings. All this expense and delay (and “Tbis imperfection is sometimes, but not frequently also those of a supplemental suit) always, corrected by a practice which is attend. appear to me unnecessary: to obviate which, ed with another mischief. The solicitor often and at the same time give to all parties, having does not, and sometimes (especially in the case or claiming to have an interest, sufficient of a hostile witness) cannot know what any opportunity of asserting their claims, is the witness can, much less foresee what (when object of the plan which I have suggested.” merely examined privately on interrogatories) Mr. Garratt makes several other sugges
he will depose. The number of witnesses,
consequently, and the number of interrogations on this branch of the subject, for which
tories to which they are to be examined, are we have no room, and we shall pass on to
multiplied. (See Mr. Ralph Barnes' answer his second head.--The mode in which Courts to qu. 16, in the Minutes of Evidence, p. 380.) of Equity receive evidence and inquire into the case is, overloaded with evidence,' (as matters of fact; and he points out its evils Mr. Plumer stated to the commissioners) and with an unshrinking hand, and supports his much of unimportant matter taken down, from opinion with a great body of important evi.
evi. the party's not knowing what has been prored
as the examination proceeds : in other instandence.
ces, the case is defectively proved, through the " It is admitted on all hands, that this system unexpected failure of a witness, whose testi, is very imperfect, though different witnesses mony, had such failure been known in time, speak of its imperfections in very different might have been corroborated or supplied.' terins.
(Minutes of Evidence, p. 544.) Not only is “ It is defective in eliciting truth from the the cause overloaded with evidence, and with witnesses on their examination in chief. When much immaterial inatter; (see Mr. Wm. a witness is examined by counsel vivá voce, in Vizard's answer to qu. 163, Minutes of Eri. open Court (as is the common-law practice), dence, p. 46,) but it is often loaded with what if one question, as frequently happens, does is not legal evidence, and neither is nor can not produce a full and distinct answer, he puts in any way be used. The piesent Vice Chananother, and another question, till the defi- cellor was asked by the commissioners—"]n ciency is supplied. The witness though will-point of fact, in your experience, have you not ing, may not have understood the first ques- found, that a great deal of trash comes out in tion; or if a hostile witness, may have evaded the shape of evidence from the examiner's it. In the course of the vivá voce examination, office?' His reply was, 'a monstrous quantity : the meaning of the question, if misapprehend- so that it is almost the practice to read a great ed, is explained to the witness; or it is put deal of stuff straight forward, and then leave into a new form : and, if the witness seek to the Judge to reject a great deal of it as it evade telling the truth, and the whole truth, occurs.' (Minutes of Evidence, p. 200, qu. 183.)
The time of the Court is thus unnecessarily a mere ex parle proceeding, and little better occupied in hearing and dissecting this mon than evidence by aslidavit. (Minules of Evid. strous quantity of Irash,' this great deal of p. 544.) The present Vice Chancellor said : stuff;' and the suitor who has to take office “ It has often appeared to me, and I believe copies of the whole of the depositions, and to everybody will concur in it, that the cross-exafurnish his counsel in his brief with copies of mination upon written depositions is absolute those copies, is burthened with very heavy stuff.' (Minutes of Eridence, p. 191, qu. 141.) and needless costs. (See the evid. of the pre-Such being the objections to the present mode sent Master of the Rolls, in answer to questions of taking evidence in Chancery, wherein is it 196, 197, 198, in Minutes of Evidence, p. better than evidence by asiidavit ? It affords no 210.)"
effectual check to leading questions, no opporLet us also note further the opinion of tunity of effectual cross-examination. What
single advantage does it offer? It sometimes Mr. Plumer. “ Shuffle,” says he, “and pre
fails to elicit the facts which the witness ought varicate as a witness may in the course of
to state; and is alınost always attended with his examination, he can correct all the in- enormous expense and delay. consistencies between one part of his evi
| Let us further hear the evidence of the dence and another, and his testimony as
solicitors as to this : finally presented to the Court on the office
“ All the solicitors who were examined be
| fore the cour missioners on this point, expressed honest plain-spoken witness that ever was their opinion of the ineficiency of the present examined.” Minutes of Evidence, p. 544. mode of examination for eliciting the truth
So much for the examination in chief; but |(Mr. Wm. Vizard, Mr. T. Hamilton, Mr. Jas. still more indefensible, is the present mode
Lowe, a Mr. Rowland Winburn, Mr.J. Forster, of cross-examining a witness in equity; and
| and Mr. Ralph Barnes, (Min. of Eo. p. 45,
I qu. 152–157; p. 93, qu. 89, 90, p. 166, qu. here again Mr. Garratt backs his own opi- 23. 24:
| 73, 74; p. 167, qu. 79, 80, 81, 83, 86, 87 ; p.
169 cm 79 80 81 83 36. sz. nion by the very best evidence on the sub- 228, qu. 38 ; p. 260, qu. 55; p, 380, qu. 15;
p. 382, qu. 52,) unless Mr. William Whitton “But what is cross-examination in the pro
be considered as an exception. He said, that
no objections to the mode of examination had per sense of the term? An opportunity of
occurred to him in the examiner's office; and putting to your opponent's witness, after being
that, whilst the principle and practice of the acquainted with his examination in chief, such
| Court shall remain as it is, he thought a better questions as may extract from him the whole
inode could not be adopted than by written truth, may test his veracity, may exbibit his
depositions. (Min. of Ev. p. 71, qu. 191.) manner, character, and behaviour to the Court
Yet even Mr. Whitton cannot properly be conwhich has to decide the question of fact at
sidered as an exception, for when afterwards issue between the parties. Now in all these points, cross-examination in Chancery wholly
asked, whether, within his experience, there
had been any evil arising out of sending comfails. Neither party sees even the interroga.
missions into the country, either in point of tories proposed by his opponent to his own witness, much less the depositions in chief. He has no means of knowing, though, from la Mr. James Lowe's horror of the mode is circumstances, he may sometimes conjecture, amusing, though he seems principally to disto what points his adversary's witness is to be like the delay and expense. “It is so very examined. He has no opportunity (after objectionable," he says, “ that I very seldom putting one question in cross-examination) of trouble them” (the examiner and commisknowing the answer given by the witness, and sioners] “ if I can avoid it: it is terrible,” of following up his question effectually. He And, when asked in what respects, he says, is thrusting in the dark. And as to the manner " In the delay.” In answer to another interin which the witness has given his examination, rogatory he says, “I seldom go before an exa. he has no means whatever of becoming ac- miner ; but in the cause of Broun v. De Tusquainted with it, or bringing it to the notice of let, not only delay, but, in my opinion, very the Court. So futile is this privilege of cross- grent injustice ensued.” To another question examination, that it is very rarely practised in he replied, “ I, however, believe the depositions Courts of Equity.
are shockingly taken :' and when asked, “What “The most experienced practitioners recom- ground have you for believing that?" he remend cross-examination only in cases where plied, “I avoid the office if I can; I know the the witness is one whom it would have been time when it was like making affidavits. I prudent or necessary to examine in chief; and think it is a terrible way of taking them now." Mr. Plumer, who had, as examiner better He says, indeed, that, “in the practice even as opportunity than most men of observing the at present administered, injustice seldom preeffect of cross-examination, says : 'The result vails in the Court of Chancery; if a solicitor of almost every cross-examination, which I knows what he is about, he makes a defendant have seen ventured upon, has confirmed the at last tell the truth.” Mr. Lowe's plan apwisdom of that advice. The inagnitude of pears to have been to do with as little evidence such a defect,' he truly adds, 'needs no com as possible, except the defendant's answer: ment. It leaves the examination in Chancery | (Min. of Ev. p. 165, 166.)
Practical Points.- Changes in the Law.
expense, or in point of delay, or in point of taking copies or extracts, are and do contain execution, he replied, “As to all.' (Min. of an account of monies received for and on Ev. p. 73, qu. 224.)”.
account of parochial purposes, that is to say, Mr. Garratt, it must be admitted, shews
for and on account of the poor-rates, and of
the rates made for various other parochial sufficiently how grossly deficient the present
purposes. Applications have been also made system is for answering the purposes of
by other rated inhabitants, for peripission to jis ice; but the remedy for this state of copy or make extracts from the said rate-books, things, is certainly by no means easy to and in like manner refused. It was argued discover. Our extracts have already been in support of the rule, that unless the rate-book so large, that we must consider that pro- was open in the manner now claimed, the posed by Mr. Garratt in a future number.
party dominant in the vestry would be able to prevent the opposite party from making the inquiries connected with elections.
Lord Denman, C. J., said, -The complain. PRACTICAL POINTS OF GENERAL ACTICAL POINTS OF GENERAL / ant says that he cannot obtain the information INTEREST.
necessary for the purposes relating to elections of members to serve in parliament, unless he
be allowed to take copies of or extracts from PRODUCTION OF RATE-BOOKS.
this book. Upon consideration, we think that The following case is of interest at the pre-we are not authorized by any general principle,
or by either of the acts of parliament referred sent moment.
to in the argument, to make the rule absolute. Sir W. W. Folletı, in Michaelmas term last, The rule must therefore be discharged, but obtained a rule, calling upon the defendant to without costs. shew cause why a mandamus should not issue,
Rule discharged, without costs. — Rex v. commanding them to permit and suffer Charles Vostrymen of St. Marylebone, 6 N. & M. 600. Hibble, and all and every person and persons rated to the relief of the poor of the parish of St. Marylebone, and all other persons men CHANGES IN THE LAW IN THE tioned or referred to for that purpose by the
LAST SESSION OF PARLIAMENT, statute, made 2 W. 4, c. 60, for the better re
1837. gulation of vestries, and for the appointment of auditors of accounts in certain parishes of
No. XI. England and Wales, to inspect and take copies of, or extracts from, the rate-books of the said parish, and all other books mentioned or
RECORDERS' COURTS AND ADJOURNED referred to, and declared to be at all seasonable
QUARTER SESSions. times open to such persons, by the said act, and why the vestry clerk should not pay to the
i Vict. c. 19. prosecutors the costs of and occasioned by this application. This rule was founded upon the This act passed on the 30th June, “ to ematlidavit of Charles Hibble, wherein he deposed | power the Recorder or other person presiding as follows: The parish of St. Marylebone has adopted the provisions of the Vestry Act (2
in Quarter Sessions in corporate cities and W.4, c. 60), and the vestrymen are chosen towns, and Justices of the Peace for counties, under that act. On the 4th of July last, the
ridings, or divisions, to divide their respective vestrymen so chosen resolved, “ That no person be allowed to copy from the rate-books;
Courts in certain cases.” It recites that in and that, agreeably to the 32d section of the large corporate cities and towns the quarter Vestry Act, no person be allowed to inspect
sessions of the peace may sometimes last the books of the vestrv, unless he or she be a rate payer or creditor of the parish.” Mr. beyond three days, and where such is the case Hibble, being a rated inhaliitant of the parish, considerable inconvenience and increased exsubsequently inade repeated applications, at
pense will result from the detention of jurors seasonable times, to the vestry clerk, at the court-house of the parish, for permission to and witnesses, and the vuavoidable attendance inspect and to take copies of or extracts from of a large portion of the municipal police : the rate-books of the parish, which were then in the possession of the vestry clerk, at the
| and that for the remedying thereof it is excourt house of the parish. These applications pedient that a similar power of forming a Mr. Hibble founded upon the provisions of the second Court to that which is vested in the Vestry Act, and especially on section 32. Inspection of the rate-books was allowed, but justices at the general quarter sessions for permission to take copies of or extracts from counties, by virtue of 59 G. 3, c. 28, intituled the rate-books was, upon the authority of the an act to empower magistrates to divide the above resolution, and after consultation with the vestry, refused by the clerk. The rate Court of quarter sessions, should be given to books from which Mr. Hibble was desirous of the recorder or other person presiding in the