Page images
PDF
EPUB

98

Selections from Correspondence.

such a major purchaser now-a days is generally | raise the character of the profession, while I required by the conditions to enter into such a have admitted that dishonesty is a disgrace not covenant with the ininor purchasers, as is equi- to the profession, but the man alone; I would valent in effect to the rule I wish to see adopted remark, that I set out by alluding to the ge, by the Courts.

neral opinion of the public as to such conduct; I hope this may meet the eye of some of and their inclination to attribute to the law as your readers, who inay be disposed to cominent a calling the fault which resides in individual on the matter, as it seems to me a very gues members of it. So that I can not but think, that tionable doctrine which uow prevails.

the enquiry I recommend would be useful W.F. in raising the character of the profession in the

public estimation. And surely, though no one

ought to be answerable for the misconduct of SELECTIONS

| his fellow practitioner, or blamed for it; and FROM CORRESPONDENCE. though it cannot be shewn that the mal-practice

of some of its members is a disgrace to the law

as a calling, yet I think it will be allowed, that MORAL EXAMİNATION OF ATTORNEYS.

were the inoral character of the candidates To the Editor of The Legal Observer, strictly inquired into, much of the public preSir,

judice would be removed; and the blame and A correspondent (under the signature of E. censure of ill conduct (if such were then pracH.) has, in your Number for the 20th May, tised), would be thrown where it properly ought thought proper to quarrel with the observations to be, on the party guilty of it. I am asked which I inade on the new rules, as to the ex- where I would draw the line? Perhaps this is amination of attorneys. And I must confess a point which it would be difficult to deter. that I am at a loss to know which part of his mine, but it is not impracticable. In the secommunication to notice first. I am content lection of any individual for a situation of to leave the consideration of the subject on the responsibility, we have invariably soine stangrounds on which it now stands; but I cannot dard whereby we estimate his fitness. The avoid observing on one or two points on which public would never blame the examiners for E. H. has touched. E. H. says, I have sub-requiring at the hands of him, to whose inamitted that “the moral capacity” of the can-nagement the most important of all public dudidates should be inquired into,“ to ascertain ties are to be entrusted, the clearest evidence whether or not they would be likely to turn the tliat he is morally fitted to administer so res. ability which the rules require to an improper ponsible a trust. As to the cruelty and sevepurpose.” I simply asked what guarantee do tity of the master, I look upon it as the last the rules afforil, that such ability will be di- argument which can be adduced in favour of rected to a proper end? I suggested that an E. H.'s proposition. If inen can be found who, enquiry into iporal character might have a be- from motives of interest or otherwise, will cerneficial tendency; and I ain still prepared to tify (even as the system now stands) as to a contend, that such an enquiry affords the only man's fitness for admission as an attorney, when guarantee which can be given, that talent will he is guilty of conduct, which, if publicly probe rightly applied. E. H. tauntingly asks, claimed, " would brand his name with a mark “ Wbät proof can he adduce of the honesty or of infamy for ever,” the suoner that system. dishonesty of a man who has not yet entered is altered the better. It is this palliation of the profession, where alone such honesty or crime,-this false delicacy as to its exposure,dishonesty can be exhibited ?" This is really this whine about “ severity," which perpetuputting the inatter on a broader principle than ates the evil, and extends the effect. What party I advanced. Dues E. H. mean to contend, that could reasonably complain of the plan which i if I could prove a inan's dishonesty in matters recommend ? It would rest with the candidate unconnected with his professional character, himself, as to what certificate should be given it would not afford a strong ground of suspicion of his character.

HY. Wn. as to his conduct when clothed with that character? I admit that “there are few, very few, who would intrust their affairs to an at WESTMINSTER SMALL DEBTS COURT. torney, without having previously some know Sir, ledge of his general character and ability.” Your correspondent I. H., in his letter at p. But the fact is, there are dishonest clients as 39, of the present vol., appears to me to miswell as lawyers; and so, I suppose, E. H. apprebend the intention of the late act on this would say, that if a man be only salisfied with subject. I think on a closer perusal, he will his professional adviser, the object of the rules and its object is not to compel plaintiffs to is aitained. The case alluded to by me, in which resort to the County Court for the recovery of the honest client becomes the dupe of a design- debts from 40s. to 51., but merely to give them ing attorney, is left wholly unnoticed : there the option of so doing, should they be inclined. are many such cases ; aye, and even where the It extends the jurisdiction of the County Court client and lawyer go hand in hand in their to debts under 51., and then goes on to say, scheme of rascality.

(see sec. 86,) “that nothing herein contained As to the error into which E. H. would re-shall destroy, limit, or prejudice che jurisdicrepresent ine as having fallen, by stating that tion of his Majesty's Courts of Record at an enquiry into moral fitness would tend to Westminster, or other courts in cases wherein

Superior Courts : Lord Chancellor.

the debts shall exceed the sum of 40s., but tho , eight days were allowed a petitioning creditor said Courts respectively shall have the same to prosecute a comunission; and if in tbat time, powers, privileges, and jurisdiction, as they and one day further, he took no proceedings, bad before the passing of this act.”.

then a commission was to be granted on the Its object they must be to extend the juris. application of the first new party applying, and diction of the County Court, without diminish- to the exclusion of the original applicant. In ing that of his Majesty's Courts of Record, the present case the full time had elapsed, a and therefore, the only coustruction which the new commission was applied for, and in the act will admit of, is, that it intends to leave it course of being issued ; agd although the Court to the option of the plaintiff to which tribunal of Review had thought fit, on the matter being be chooses to resort.

brought under its consideration, to direct that F. P. C. the fine to the first petitioner should be renewed,

it was conceived that the second party had now SUPERIOR COURTS.

| the exclusive right to prosecute his fiat.

Mr. Seranston and Mr. Anderdon, for the oriLord Chancellor's Court.

ginal petitioning creditor, would not contend that

the order of the Court of Review could be carried PRACTICE IN BANKRUPTCY.-SECOND FJAT. Vinto effect by the prosecution of the two fiats. A fiat in bankruptcy was not prosecuted for but conceived that this was not a case in which

tirenly-four days, and five days more elapsed their client was to be excluded under the order brfore a mistake, discovered on the iwenty of Lord Loughborough. The first fint had been finh day, was rectifier. Al the popiration referred to the Blandford list, under an impresof the twenty-nine duys another solicitor, for sion that the only acting commissioner of the a different creditor, applied for u new fiat, Poole list, was disqualified to act; but the mo. echich was issueil. The Lord Chancellor, on ment the mistake was discovered, an applicaappeal, confirmed the fiat to the neio peli- tion was made to the Court of Review for leave tioning creditor, and ordered the former lo to sue out a new fial, and on that leave being be annulled.

given, new papers were sent for, and every preThis was an appeal from an order of the Court paration made to prosecute the coinmission. of Review in Bankruptcy, which permitted a The papers did not arrive till the twenty-eight petitioning creditur to sue out a new fiat days expired. As the delay had arisen fron à against a bankrupt after the tiine for present. mistake, and as the error had been corrected ing a former fint to the same creditor had under the authority of the Court of Review in elapsed, and a fint to a second petitioning cre- Bankruptcy, the case did not come within the ditor was bespoke against the same bankrupt. | order referred to, and the first petitioning creThe bankrupt was a trader, residing at Poole, ditor was still entitled to a preference. in Dorsetshire. On the 24th of April last, a soli) The Lord Chancellor said the orders of the citor applying for a fiat for a petitioning credi. Court of Review were good for nothing, unless tor, stated in the affidavit that ihe commissioner sanctioned by the authority of the Great Seal, for the Poole list was a debtor of the estate, and and therefore the application made to that that it would be expedient to direct the put to Court hard 110 bearing on the question. It was the next nearest list. The fint was issued and clear both fiuts could not stand. The orders so directed, but nothing was done till the 18th referred to were decisive on the point, that if a May, when it was discovered that the statement commission was not prosecuted in twenty-eight respecting the Poole commissioner was founded | days, and a day further, the next applicant for on a misapprehension; and, some proceeding a cominission was to be preferred. The course being threatened by that commissioner, an ap- pursued by the second creditor was regular. plication was inade for a new fint, to be directed No reason had been given for a departure from to the commissioner of the district. This ap- the orders in favour of the person who now plication the Bankruptcy office refused to grant, sought to get rid of their effect. He had orja without having a fresh affidavit and other papers.ginally fallen into an error respecting the proper Fresh papers were accordingly sent for, but commission, and for twenty-five days he took they did not arrive until the 22d of May; and no steps to correct his error, or prosecute the on the morning of the 23d another solicitor ap- fiat ; and after discovery of the error, be al. peared at the office, claiming a fiat in the name lowed the whole tiine limited by the orders to of another creditor, which was ordered. The elapse, without prosting by the discovery. Court of Review, on application of the first pe. There was no pretence for allowing the fiat to titioning creditor, directed a new fiat for him. the first creditor to be proceeded with. That

Mr. Bethel and Mr. Wright, for the creditor fint, therefore, must be annulled, and the se. who applied for the second fiat, contended that cond, issued to the next petitioning creditor, as the first had not prosecuted bis fint within the must stand. With respect to costs (for which legal period of twenty-eight days, there was a the counsel for the second creditor applied), right in their client to have the inanagement of his Lordship gave leave to apply for them to the proceeding, to the exclusion of the party the Court of Review. originally petitioning. The order under which In re Scott, at Westminster, May 27th, they claimeil was that of Lord Loughborough, 1837. issued the 26th of June, 1793,a by wbich twenty

1788, acted on in ex parte Musterinan, 18 Ves. * See also an order of Lord Thurlow, 6 Dec. 298.

100

Superior Courts : Lord Chancellor; King's Bench.

Practice.--INQUISITION OF LUNACY. I brokeshire, which was an ancient l'eleh coun. An Inouisition finding G. B. of unsound mind. ty, and no part of the Lordship's marches in incupable of inunuging his lands, &c. but ca

Wales ; and at the assizes, they moved in ar. puble of taking care of himself, is contradic

Self contradic. rest of judgment, that the 26 Hen. 8, c. 6, did Cory and bad ; but a new commission may be

but a ner canmission inau be not extend to all the principality of Wales, but issued on the uriginal petition.

only to the Lordship's marches, where the in

convenience intended to be remedied by that The Solicitor General and Mr. Shelford

statute was recited to be. The case was brought moved to quash an inquisition of lunacy, by

up by certioruri to this Court, and after hear. which it appeared that the jury found George

ing counsel, the Judges were unanimously of Bennett to be of unsound mind, and incapable

opinion, that the Justices of assize iu the next of managing his lands, tenements, heredita- 1 English county had a concurrent jurisdiction ments, &c. but capable of taking care of him.

throughout all Wales with the Justices of the self, such a return to the commission was in.

grand sessions, and consequently that the deconsistent and could not stand.

fendants were well tried at Hereford. The Mr. Wigram opposed the motion.

| defendants thereupon received sentence of The Lurd Chancellor was of opinion, that the death, and were executed in Kent Street by finding was bad, but rather than put the par-I the officers of the Marshal. The punishment ties to the delay and expense of proceeding

here was not discretionary. If it was, the Court again from the beginning, he would direct a

would look at the record, and not being acsearch to be made by the secretary of lunatics

quainted with the circumstances, would not for any precedent for issuing a new commis

sentence the party; but where, as in this case, sion on the petition for the former commis

the sentence inust be pronounced at all events, sion.

this Court would pronounce it. In a case siOn a subsequent day, his Lordship said se

a semilar to the present, Rex v. Nicholls, the veral precedents were found at the secretary's | Lord Chief Justice was of opinion, that this office, justifying him in issuing a new commis- I Court mi

Court might give judgment or might quash the sion on the original petition, and he therefore

certiorari quia errunice emunavil, and send the ordered that to be done in this matter.

case to the Court below, with directions as to In re Bennett, a lunatic. — At Westminster,

what judgment ought to be pronounced. If May 31st, and June 30, 1837.

an inferior Court pronounced a ridiculous judg

ment, as that any prisoner shall walk a certain King's Bench.

distance with peas in his shoes, this Court [Before the Four Judges.]

would not let such prisoner escape, but would INFERIOR COURT.-ERROR.

pronounce the proper sentence. This Court

had itself pronounced the judgment in the case Where un inferior Court has pronounced of The King v. Lookup.d In the case of The

anerroneous judgment, and entered it of King v. Keniourthy,e this Court sent the case record, this Court cannot alter that judg- I to the Court below to give judgment, no judgment, nor remit the case to an inferior | ment having been there properly given. In Court, but must reverse it.

The King v. Ellis,f the defendant was con. A judgment recorded aguinst burglurs to be

victed of an offence for which the punishment Transported, is an erroneous judgment. In

was discretionary, and that case would most the first instance, the judgment oughl to probably be relied on by the other side, because have been judgment of death.

the Court then reversed the judgment. But These defendants had been convicted at the that case differed from the present, for there Monmouth sessions of the offence of burglary, the judgment of the Court below had been and the Chairman, Lord Granville Somerset, at pronounced; while here, the judginent passed once passed upon them sentence of transporta- | by the sessions was, in law, no judgment at all; tion, Bourne for seven years, and the two others and this case, therefore, more nearly resemnfor life. That sentence was recorded against bled the case of The King v. Kenworthy than them as the judgment of the Court. They then that of The King v. Ellis. The punishment brought a writ of error, alleging for error, that here was certain, not discretionary; the judgthe judgment recorded ought to have been ment of the Court below was altogether bad, judgment of death.

and was therefore the same as if none had been The Altorney General for the Crown ad-given, and this Court might therefore, if the mitted the error, but contended that this Court prisoners insisted upon it, at once proceed to was at liberty either to correct the judgment, give the proper judgment. and at once pronounce a proper judgment upon Mr. Peacock, on behalf of the prisoners, ob. the prisoners, or to remit the case to the ses served, that in all the cases cited where this sions, with directions to them how to deal with Court had remitted to the Court below, or bad it. This latter course had been pursued in the itself passed sentence, no judgment had precase of The King v. Garside,a and also in that viously been given. Such was the case in The of The King v. Athoe.b In the latter case, the defendants had been convicted at the Hereford- c 2 Strange, 1227, but much better reported shire assizes, for a murder committed in Pem- | 13 East. 412, n.

d 3 Burr. 1901. a 2 Adol. & Ell. 266,

e 1 Barn. & Cres. 711. b Str. 553.

f 5 Barn. & Cres 395.

Superior Courts : King's Bench.

101

King v. Alhoe and The king v. Nicholls. But I already been pronounced, and it would not be here a complete judgment had been given and proper to call on the same Court to pronounce entered of record, and if that judgment was any other. Then the next question is, whether wrong, the sessions had no power to pass awe can pronounce another judgment. Now fresh judgment. If the case now went back on that point the case of The King v. Ellis is to the quarter sessions, and a fresh judgment a decisive authority. I do not find any case in was pronounced, there would be two judgments | point shewing that we may pronounce such a on the same record, wbich would be clearly I judgment, and that case distinctly declares bad. It would be equally bad, if such second that we may not do so. His Lordship here judgment was passed by this Court. In The read the argument of the counsel for the King v. Walcotl,8 the judgment omitted an es-Crown in The King v. Ellis, and that part of sential part of the punishment required by Lord Tenterden's judgment applicable to this law, and was therefore held to be bad, and the point:-“Here the Court below has passed a Court would not permit any amendment. I judgment, and that judgment being erroneous, The King v. Garside was not at all in point. The we think there is no ground to send it back to judginent there was correct enough, and all be amended." His Lordship then continued : that this Court did was to award execution of It never occarred to the very learned counsel it. There was no error in that judgment; but who argued that case on the part of the Crown here the error was admitted, and yet the Court (the present Mr. Baron Parke) to contend that was asked to give effect to the judginent. this Court could safely amend that judgment There was no case whatever, where a defen- which it was called upon by writ of error to dant having brought a writ of error on the reverse: he contented himself with arguing ground that the judgment was erroneous, this that the case might be remitted to the Court Court had given the right judgment, and so I below; but even on that point, this Court, in aipended the error of the Court below. The which there sat Lord Tenierden and Mr. Juscase supposed by the Attorney General as to tice Bayley, decided against him. It is imthe Court below giving judgment against a possible to suppose that the present point prisoner, to walk a certain distance with peas would not have been taken by such a coupsel, in his shoes, was a strong case to shew the im- | bad there been the slightest ground to believe propriety of remitting to the Court below, or that it could have been put forward with any pronouncing judgment on a conviction made chance of success. It appears to me, therein it. If an inferior Court could be so grossly | fore, that in the absence of all direct authority iguorant of law as to pass such a judgmeut, it | in support of such an argument, and with that would hardly be fit to receive or act upon the implied authority against it, we cannot do directions of this Court; and therefore the what is now asked. The judgment of the case ought not to be remitted to its juris- | Court below is for this purpose conclusive on diction, while it was equally clear that this us; and we must say, as the Court did in the Court ought not to pass judgment on a convic- case of The king v. Ellis, that the Court tion obtained in an inferior Court that had so below having passed judgment, we cannot remisconducted itself, for it must be manifest mit the case to have that judgınent altered, that such a Court could not be relied on for but it must be reversed. having given the prisoner a fair and legal trial. Mr. Justice Littledule concurred.-In Haw. The case of The King v. Ellis, must decide kins's Pleas of the Crown, tit. Avoiding judgthe present. This Court cannot, in the pre-ment, was this passage, “ If the judgment of sent instance, either remit the case to the ses- the Court below is erroneous, it must be resions, or pronounce judgment on the finding versed and the defendants discharged ; but if at the sessions; but was bound to reverse the only the award of execution is erroneous, that judgment which had been unlawfully pro- | may be set aside and a proper execution nounced, and to order the prisoners to be dis-awarded.” charged.

Mr. Justice Patteson concurred.-If no Lord Denman, C. J., after stating the cir. judgment had been given, the Court might cumstances of the indictment, the conviction, I perhaps, do one of the two things now de. the sentence, and the certioruri, said :-On the manded; but the judgment had been entered one hand, it is contended on the part of the here, and this Court could now only atfirın or Crown, that though this judgment is clearly reverse it. He thought that the case of The wrong, we may reinit the record and direct the King v. Ellis, was decisive on this point, and quarter sessions to pronounce a proper judg- that the judgment of the Court below must be inent, or that we may take upon ourselves to reversed, and the prisoners discharged. pronounce such a judgınent as we know on Mr. Justice Williams concurred. the conviction had against these prisoners to Rule for reversing the judgment absolute.be contrary to law. As to the first, it is clear Bourne and two others v. The King, T. T. 1837. that we have not power to do what is asked. | K. B. F. J. It cannot be said that there is no judginent, as was the case in The King v. Alhoe. If the

King's Bench Practice Court. Court below had in the first instance asked our directions as 10 the judgment, we might |

thiATTORNEY.-EXAMINATION OF ARTICLED have given them; but here the judgment has

CLERK, —QUESTIONS.-EXAMINERS' RULES.

If an articled clerk has not been furnished in 8 4 Mod. 395.

due time with the questions, pursuant 10

102

Superior Courts : King's Bench Practice Court; Exchequer.

&c.

the new rules for the purpose of examinu. examine the clerks, they must fix some period tion, in consequence of the London agent's within which the answers are to be sent in. negligence, the Court rcill allow him 10 Under all circumstnaces, however, the present send in his unsuers ufler the usual time, application may be granted, on condition of the on the terms of the London agent paying London agent paying the costs of this applica. the expenses of the application.

tion. Coreling applied on behalf of an articled). Rule granted accordingly.-Ex parle Holclerk, to be allowed to send in his answers to I lund, T. T. 1837. K. B. P. C. the questions propounded by the examiners at the Incorporated Law Society, although the day for sending them in, as directed by ar rangements of the examiners, had passed. The affidavit on which the present application was

Erchequrr. founded, stated, that from the omission of

FORM OF ISSUE.—APPLICATION TO JUDGE. the London agent to the attorney with whom the clerk's articles had been served, the ques. The substitution of 1837 for 1836, as the date tions to be answered had been sent down so of the writ of summons, and of the word deJate into the country, that it was utterly iin fendunt for defendants, and the urrard of possible for them to be answered in such time, venire being directed to the thenSherifi, as to be transmitted to be deposited before the in the issue, are irregularities which should day fixed by the examiners, before the actual be amended on an application to a Judge at time of examination. The questions had been

Chambers, and not to the Court. answered, and had been transmitted now. The examination had not yet taken place, and therefore, no injury could result. It was also the issue for irregularity. The irregularities to be reinembered that this rule, which re

this rule. which re. were, that the date of the writ of summons was quired the answers to the questions to be sent stated to be Nov. 1837, instead of 1836, that in before a certain time, was a rule maile by the word defendant was used frequently instead the exaininers themselves, and not by the of defendants, and that the conclusion was Judges.a Perhaps the saine strictness would“ thereupon the then Sheriff is commanded,” not be applied to the construction of them, as to the rules made by the Judges.

Cowling now shewed cause, and contended, · Coleridge, J., thought that it was very incon- that although the issue was irregular in these venient that persons interested in these rules particulars, yet that the proper course would would not make themselves acquainted with have been to apply to a Judge at Chainbers to their provisions. They had now been in force amend it at the cost of the plaintiff. The demore than a year, and yet several applications fendant's attorney had besides accepted the in the present term had been made, merely on paper book, which was a tacit admission that the ground of the persons who had not com- , it was properly made up. plied with the rules, being unacquainted with Hoggins, in supporting his rule, urged, that their provisions. The Courts had determined as the record was framed from the issue, it was that under those circumstances, where the of the utmost importance that it should be cor. deviation froin the rule proceeded from igno. rectly made up, for it might be required at the rance merely, no relief would be given. trial to know the precise date of the suing out

Onecling observed that the circumstances the writ of summons. In Peel v. Ward, 5 D. in this case, which had given rise to the omis- P. C. 169, the Court had set aside the issue, sion in the present case, would not be con

Se would not be con. as well as the Judge's order to try the cause sidered as amounting to ignorance on the part before the Sheriff, and the notice of trial, be. of the person applying, and therefore did not cause the issue was irregularly drawn. come within the reason of the determination. Alderson, B.-In that case the issue of the Court, to which allusion had been made. drawn in such a forun, that the Judge had no Here, the fault arose entirely from the omis- power to make the order for trial before the sion of the London agent, and could in no Sheriff. Here the irregularity is merely an inway be attributed to the applicant; and the formality. rule in question was one of the examiners' Hoggins.-The issue should strictly follow rules only. The determination of the Court the form given by the rule. The award of in question, could only be considered as apply. venire is besides incorrect, as it is directed to ing to the rules which the Court had made. the “then” Sheriff.

Coleridge, J.-It is to be observed that the Alderson, B.-Peel v. Ward is no authority Court will not deal lightly with the rules made for this case. The rule inust be discharged by the examiners, but will require strict obe with costs, and an application to amend the dience to them. If the exaininers are to issue at the cost of the plaintiff must be inade

to a Judge at Chairbers.

Rule discharged.--Iken v, Plevin and others, a This is not strictly correct, for though E. T. 1837 Excheq. the regulations were proposed by the Exam-1. iners, they were approved and signed by the Judges, and cannot be altered without their sanction. ED.

« PreviousContinue »