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SATURDAY, MAY 20, 1837.
"Quod msnris ad Nos
Pertinet, et nescire malum est, ftgitnmus.
THE CORONEIIS' INQUEST BILL.
A Bin, has lately been introduced into Parliament* relative to the expenses of Coroners' Inquests, which is very objectionable in some of its details. By sec. 1, the coroner is directed to pay these expenses oat of his own pocket; and by sec. 2, he is to be reimbursed by laying before two justices, at some petty sessions to be holden for the division in which such inquest shall have been holden, an account of his expenses, with proper vouchers; and the justices may examine the coroner on oath, and if satisfied, make an order on the treasurer of the county for the payment of the expenses out of the county rates. Thus, it will be seen, that the disbursement of the coroner is obligatory, and his reimbursement optional with the justices. Now the coroners are a very deserving body, and are at present very slightly remunerated for their trouble. Their present allowance was fixed by the 25 G. 2, c. 29, (just eighty-five years ago,) and they receive only \1. for each inquisition, and 3d. a mile for their travelling expenses; so that in an extensive district, considering their loss of time, they are frequently rather losers than gainers by the discharge of their duties. A Bill was brought in some time ago by Mr. Cripps to increase this allowance, which was, however, suffered to drop through. We believe, however, that Sir George Strickland and many other members, are favourable to this increase; and we should be glad to see
» Printed ante, p. 23. vot. My.—no. 898.
some clause having this object introduced in the Bill now before the House. But, at any rate, we object to the imposition of any additional burden on the coroner. If the Bill passes in its present shape, the coroner, who passes his accounts only once a year, will be out of his money, which may be a considerable sum, for a very long and inconvenient time, and after all he may, by the caprice of the justices, be refused payment altogether.
We would submit the following plan instead of the one proposed :—
The county rates are paid by the overseers out of the poor rate to the high constables of the various hundreds, and paid in by these constables at every quarter sessions to the county treasurer; so that the overseers as constables have always county money in hand. Now let the coroner give an order on them to pay these expenses, and let the coroner's order be received by the treasurer as a voucher and discharge for so much of the county rate as these may amount to; or, if this should be considered as giving too much power to the coroner, let him be empowered to exhibit his accounts to two justices at quarter sessions, as provided by the 25 G. 2, c. 29, for passing the usual and ordinary accounts. It is little inconvenience to a coroner to attend a quarter sessions, he being generally there on other business, but a petty sessions may be held at a distance from his residence, and he will be saddled with the expense of going and returning there. These details may appear trifling, but the coroners are not at present so well paid for their trouble, as to make them unimportant to them.
We particularly call the attention of the
Observations on the Coroners' Inquest Bill. — Law of Attorneys.
Legislature to this Bill, because by the late Act for Registering Deaths, Births, and Marriages, (6 & 7 W. 4, c. 86,) several additional duties are imposed on coroners, without any remuneration. Thus, by sec. 19, it is enacted, that in the case of any dead body found exposed, the coroner shall forthwith give notice of it to the registrar; by sec. 25, in every case in which an inquest shall be held on any dead body, the jury shall inquire of the particulars required to be registered, and the coroner shall, by his certificate, inform the registrar of the finding of the jury; and by sec. 27, the coroner is to give an order for the burial in the form in the schedule F. Now the coroner has to do all this for nothing. The registrar, who is simply to make his entries, is to be well paid; but the coroner, who is to have almost all the work, is not to be paid anything: he is not even provided with blank forms to fill up, with which the registrar is fully supplied for his part of the duty. But the giving these notices will entail other expenses which are left unprovided for. There is a Bill for amending the Registration Act now before the House of Commons, and we are desirous of seeing the duty of giving notices required under sec. 19, placed on the overseer, and not on the coroner; and we submit that the coroner, for the certificate required under sec. 25, should receive the same fee as the registrar.
We sincerely hope that these observations may find their way to the proper quarter. There is perhaps no public officer eo ill remunerated as the coroner, yet his duties are arduous, unceasing, and difficult to perform. We would propose, therefore, that he should receive a further fee for his increased labours under the Registration Act; that his allowance for travelling expenses should be increased to Is. a mile; and that, if he is to advance the expenses of the inquest, he should not, at any rate, be longer out of pocket than three month*.
LAW OF ATTORNEYS.
LIEN OF AGENTS.
In our eighth volume, p. 177, we stated at some length the cases relating to the lien of agents; and we there ventured to lay it down that an attorney cannot compel the delivery of any of his papers in the agent's possession without paying the whole of the costs due to such agent, - and that the pay
ment or tender of the charges in any particular cause will not entitle the attorney to the delivery of the papers therein, so long as he continues indebted to the agent for other business; citing Ward v. Keppte, -15 Ves. 297; and Ex parte Steele, 16 Ves. 164. It has, however, lately been held at nisi prius, that the town-agent of an attorney has a lien upon the money received in the particular cause and upon the papers in the particular cause for the amount due to him by the attorney for the agency bill in that particular cause only, and that he has this lien against all the world; and if he has had no payment made to him specifically on account of this cause, he is entitled to this lien until his agency bill in the particular cause is satisfied; and that if the agent has parted with the possession of the papers by his own act, though by mistake, his lien is at an end; but if the papers did not get lawfully out of his possession, his lien continues, and he may maintain trover for them. In giving judgment, Mr. Justice Littledale said, " It is a rule of law that an attorney has a lien upon all papers of his client which are in his hands for his bill for all business of that client. However this is not so with the attorney's agent. The agent has only a lien upon the money recovered and upon the papers in his hands in the particular cause, for the amount due to him by the attorney in the particular cause only, and in this case the plaintiff would have a lien to that extent against all the world, but his lien goes only to the extent of the papers in that cause for the money due to him in that cause only. The plaintiff was the agent of Mr. Smith, and it is proved that the remittances which, were sent him on Mr. Smith's general account had satisfied that account all but 5/., but it appears that no payment had been made in this cause specifically. Now, if there was any balance due to the plaintiff, he had a lien on these papers till the agency bill in this particular cause was settled. The defence is, that the plaintiff had sent the papers into the country to Mr. Smith. Now if the plaintiff had parted with the papers he had no lien upon them; but if he had not, he still has his lien. If the plaintiff parted with the possession of the papers by his own act, he has no longer any lien upon them; but if they were got out of his possession wrongfully, his lien remains." Dicas v. Stockley, 7 Car. & Pay. 587.
Law of Attorneys. 35 36 Law of Attorneys.—Notices of New Books: Maugham's Outlines of Law.
H0DUCTION OF CASES FOE THE OPINION OF COUNSEL.
A party is not compellable to produce, for the purposes of an action or suit, cases laid before counsel in the progress of a cause, and prepared in contemplation of such action or suit. Bolton v Corporation of Liverpool, 1 P. Cooper's Rep. 22.
"With respect to the cases sought to be inspected (says Lord Brougham, C), these are the cases laid before counsel in contemplation of the action, and pending the proceedings. Their dates come down to the 29th Oct. 18.il, the hill having been filed in Nov. 1830, and the answer sworn in Dec. 1831. Most of the cases were laid hefore counsel after the demurrer was argued ; nay, after it came hefore me on appeal —S'irae of them on the very eve of the present application to the Vice-Chancellor. They are sworn in the answer ' to have been prepared in contemplation of and with reference to the action and suit.' It is suggested, that one of them is the very brief for counsel at the trial of the action, to prepare himself against which the plaintiff in equity claims the inspection. And whether this be so, in point of fact, or nut, is immaterial, as it may well occur in any cause, if the rases laid before counsel in reference to that cause at law can be obtained by coming to this court.
"It seems plain that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights. The very case which he lays before his counsel, to advise upon the evidence, may, and often does, contain the whole of his evidence, and maybe, and frequently is, the brief with which that or some other counsel is furnished to con duct his cause. The principle contended for, that inspection of cases, though not of the opinions, may always he obtained as of right, would produce this effect, and neither more nor less : that a party would go into Court anil try the cause, and there would be the original of his hrief in his own counsel's bag, and a copy of it in the bag of his adversary's counsel; nay, as often as a party found himself unprepared, or suspected that something new had come to his adversary's knowledge, be might (at least if he were plaintiff) postpone the trial, and obtain » discovery of those new circumstances, which in all likelihood had heen laid hefore counsel for advice. If it be said that this Court compels the disclosure of whatever a party has at any time said respecting his case; nay, even wrings his conscience to disclose his helief, the answer is, that admissions not made, or thoughts not communicated to professional advisers, are not essential to the security of men's rights in courts of justice. Proceedings for this purpose can be conducted in full perfection, without the party informing any one of his case except his legal advisers; but without such communication to professional men, no person can safely come into a Court, either to ohtaiu redress or to defend himself against a claim.
"Yet, violent as such compulsory disclosure may be deemed, and wholly inconsistent with the possibility of safely transacting judicial affairs, if the authorities are in its favour, we must submit. RaHcliffe v. Fintmnn, 2 Bro. P. C. 514, is the case commonly relied on in these questions It is a decision of Lord King's, affirmed in the House of Lords. If it had decided the question, there would have heen no alternative but submission. The report in Brown is imperfect, and in one respect not eorlect; for it conveys an inaccurate notion of the nature of the demurrer But even by the report, and certainly by the printed cases which I have examined, together with my noble and learned predecessor, it appears plain that the record did not show any suit to have heen instituted, or even threatened, at the time the case was stated for the opinion of counsel; and the decision being upon the demurrer, the Court had no right to know any thing which the record did not disclose. All the Court knew was, that a case had heen laid before counsel at some time in order to satisfy the party consulting, whether or not his rights had been affected by a certain lapse of time. Aud the ground on which the production was resisted appears to have been the mischief of disclosing statements confidentially made for the private ease and satisfaction of parties. So far this decision rules that a case laid before counsel is not protected ; that it must be disclosed. But the decision does not rule that disclosure must be made of a case laid before counsel, in reference to, or in contemplation of, or during the pendency of asuit or action, to serve the purposes of which action the production is sought.
"The caae of Preston v. Carr, 1 Yo. & .ler. 175. would seem to have carried the doctrine of Radeliffe v. Furimitn this one most material step farther, but apparently without intending to do so, for one of the learned judges says, that he agrees with those who have expressed an opinion that it should not be carried further. There is, however, a decision of this Court since Preiton v. Carr, by which I am disposed to be guided, in deference as well to all the principles upon which it proceeds, as to the authority of the noble and learned judge who pronounced it—I mean the case of Hughesv. Bi'ldutph, 4 Russ. 19(X I can, however, see no difference between the letters there excepted from the order to produce documents, and the cases laid before counsel. They were letters which passed between the client and the solicitor, and between two solicitors employed by the client M the progress of the cause, or triih reference to the cause hefore it was instituted. This was the line which Lord Lyndhurst drew: and I can see no difference between the statements of a case in such correspondence, and the statements which are laid before counsel in the form of a case for their opinion. Something which occurred in the correspondence might happen to be kept ont of the case so laid before counsel, and that might be a motive in one instance for not refusingthe production ofthe case, while the party might have a reason for refusing the letters. ' But that is accidental, and cannot afC 2
act the principle ; for it is clear that the case may, and in such circumstances probably will, contain as much matter as the letters, which the client cannot safely disclose; and it may very well happen that the case prepared by the solicitor should contain more than the letters. Cent v. Vacey, 4 Russ. 193, which followed two years after, though reported next in the same volume, is said to throw a doubt upon Hughes v. Biddulph, at least as far as regards its application to this question. In the first place, however, the Vice-Chancellor having acted on Haghes v. Biddulph, as regards the letters, his order was appealed from and affirmed. But | next it is said, that a case laid before counsel appears incidentally to have been produced. 'I he observation which 1 have made will explain that; for the party may not have resisted the production, on the accidental ground which 1 have referred to, of the letters happening to contain what he was reluctant to disclose, though the case did not. But be that as it may, there was no contest on the production of the case, and the question was not decided.
"I am therefore upon the whole of opinion, that cases laid before counsel in the progress of a cause, and prepared in contemplation of, and with reference to an action or suit, cannot be ordered to be produced for the purpose of that action or suit."
NOTICES OF NEW BOOKS.
STUDY OF THK LAW.
Outlines of Law: or Readings from Blackstone and other Text Writers; altered according to the present Law • comprising Injuries to Persons and Property, and their Remedies in the Courts of Law, Equity, and Bankruptcy. Designed for the use of Young Practitioners, Articled Clerks, and other Law Students. By Robert Maugham, Secretary to the Incorporated Law Society. London: Richards & Co., 1837.
Thk utility of this work, and its general scope and design, appear to be fully described in the Preface or Introduction; and the author thus adverts to the existing want, in reference to the means of study, which he aims to supply:
"Our legal writers (he says) appear to have directed their attention to works suited rather to the busy Practitioner than the Student or the Junior Members of the Profession. With the exception of the Commentaries of Sir William Blackstone, there is scarcely any elementary work to assist the student in the early stages of his progress. It is true there are many books to advise him; but most of them point out so large a field for cultivation, that he is disheartened in commencing his labours, and has but little hope of satisfactorily concluding them.
"Instead of voluminous works, designed for the full and complete information which the practitioner requirers in all the details of his professional duty,—a general summary of the Law and Practice appears to be necessary for the student,—an Outline sufficiently full to afford a comprehensive view of the subject, but without entering either into minute particulars and endless details, or into cases of rare occurence.
"In attempting to supply this deficiency, and to afford at least some additional means of instruction, the aim has been not merely to point out the course which the student should take, but actually to accompany him on his way ;—not merely to direct him' to select for himself the useful parts of large and comprehensive works, but to make the selection for him:—to cull from various sources into a compendious form that which he should render familiar to his recollection, and engraft abidingly into his mind.
"With this purpose in view, the compiler has endeavoured to bring the matter into such limits, and arrange it in such order and method, as may enable the student, within a reasonable time, to make himself roaster of a considerable extent of legal knowledge, on many of the subjects with which he ought to be intimately acquainted. He thus hopes to contribute, in some small degree, to diminish the difficulties in which his younger brethren are placed, and to assist somewhat in smoothing their path to. a satisfactory result.
"It appeared to the compiler that the most useful course would be to commence with some branch of the law, of very general application to professional business. He has therefore selected for consideration, the various Injuries cognizable in the Superior Courts, affecting the Persons and the Property of individuals. These involve the important duty of the legal adviser to determine rightly in what Court, and in what form and manner, the Remedy should be sought, —whether at the Common Law or in Equity; or in the collateral branch of Bankruptcy. The redress thus afforded for each injury, and the specific nature of each remedy, ought of course to be well known to every practitioner.
"In considering these injuries, and the appropriate remedies afforded in the Courts of Common Law, it appeared impossible to follow a better model than Sir Win. Blackstone. His masterly summary of the Law relating to Private Wrongs, contained in the third volume of the Commentaries, stands altogether unrivalled; but the abolition of all actions concerning real property except ejectment, dower, and quare impedit, has rendered no longer practically useful a considerable part of that volume. Yet a concise account of so much of the former law as bears upon its present state, appeared necessary to be retained.
"Looking at the extensive and rapid alterations which have been made within the last few years, compared with the slow and limited changes of former times, it is interesting to notice the remarks of Sir Wm. Blackstone. 'When laws (he says) arc to be framed by popular assemblies, even of the representative
kind, it is too Herculean a task to begin the woik of legislation afresh, and extract anew system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprising sovereign, a Solon or a Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice: and evil betide that presumptuous subject who questions its wisdom or utility! But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws, (though relating but to roads or to parish settlements,) will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequents, and set up another rule in its stead? When, therefore, by the gradual influence of foreign trade and domestic tranquility, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the feodal actions (guarded wiih their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable iutrcnehmenls) were ill-suited to thai, more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous aud extensive than the most penetrating genius could foresee, but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of rcmedialjustice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted thein, they left an opening for the more liberal and enterprising judges, who have sate in our courts of equity, to shew them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. Theonlydifficulty that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily pervaded. Our syetein of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the troptiied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, arc cheerful and commodious thungh their approaches may be winding and difficult.'
"Whatever might have been the learned Commentator's opinion of the wisdom of that 'great legislative revolution in the old established forms' which has been effected in our times, and contrary to his expectation,—he
would probably at the present day have deemed it advisable to leave to the historian and antiquary, much of that legal learning which he wrought out and embellished with such singular skill and excellence. This task of omission has been reluctantly performed.
"In the department of Equity, the Outline given in the Commentaries appeared to be insufficient for the purpose of the student, and not to bear an equal proportion to the summary of the Common Law remedies. The first Chapter of the Second Part of this volume, which treats of the general nature of Equity, contains all that is to be found in the Commentaries on that subject j except a brief statement of the principal stages of proceeding, which belong not to the present volume. It became necessary, therefore, to resort to some other text-writer to extend the Outline farther, and fill up partially some of the principal heads of Equity. For this purpose, the compiler has resorted to an early edition of the Treatise on Equity, edited by the late Mr. Fonblanque, and wherever necessary, he has stated the recent authorities. The leading principles of Equity, however, have not undergone much change in late times; and there has been comparatively little occasion to depart from the doctrines laid down in the early reporters.
"The Third Part of the volume, which treats of Bankruptcy, is unavoidably concise, like the other parts of the work. This has been compiled principally from the statute of 6 G. 4, with the addition of some judicial decisions: and it is hoped that it will be found arranged in a convenient manner, and will enable the student to fill up the Outline by further reading. The Fourth Part, which relates to the Law of Dittress, and the Fifth to Arbitration, are placed at the end of the volume, not being connected direclly with the remedies belonging peculiarly to any of the Courts.
"It was deemed advisable to depart in some instances from the arrangement adopted in the Commentaries, for the sake of commencing with subjects which appeared more likely to occur in the ordinary course of professional business. The text has been carefully preserved except where the law was subsequently altered, and these alterations have been embodied in the work wherever they occurred. The passages which have been omitted, (besides the repealed parts of the law), consist of some of the historical statements, but others have been retained for their useful explanation of the existing law. Those portions of the Commentaries which relate to the mode of proceeding in the several Courts have been reserved for another volume, if haplv the manner in which this has been executed should be favoured with the approbation of the profession."
The following is a summary of the contents of the volume. The First Part relates to Injuries to Persons and Property, and their Remedies in the Courts of Common Law, and the subjects are arranged as follows: