Taxation of Costs. Gratuities to Masters' Clerks.— Superior Courts. A correspondent of the Legal Observer (p.299.) has already, I am aware, briefly and tersely pointed out this mistake of the Lord Chancellor; but your correspondent wrote for the profession, I wish to write for the public. In opposition to his Lordship's sportive inflic tion let me quote Mr. Spence, also a law reformer, a man well calculated to elucidate the abuses of the practice in Chancery, one to whom the merit of affording to Lord Brougham a great proportion of the information which grounds his Lordship's speeches on the subject, is attributed. Mr. Spence, in his pamphlet entitled "The Evils and Abuses of the Court of Chancery, and proposed Amendments," published in this very year, thus writes: "The other principal source of emolument to the sworn clerks," and by that term, I explain for the non-professional part of the public, are meant, not the Masters' clerks, the judicious men, but the Sixty Clerks, or clerks in court of the Six Clerks' Office," arises from the fee of 6s. 8d. allowed by Lord Hardwicke's order of 1743, for every attendance on the Master on taxing costs. This fee deserves particular consideration. It is the Master's duty to tax the costs himself; every order for taxation directs him to do it. In practice, however, as I learn from practitioners, there are few bills referred for taxation that the Master ever knows any thing about. The sworn clerk for each of the parties interested, or his agent, generally takes the bill to the Six Clerks' Office; they then tax the bill without the intervention of the Master, and when the taxation is concluded, the Master's certificate is obtained." (pp. 15, 16.) "I shall have occasion again to advert to the subject of taxing costs when I come to the Masters' offices; I will here merely remark, that the clerks in court, by this, as I consider, perversion of Lord Hardwicke's order, have, in effect, become substituted for the Master in this most important duty. It was proper, no doubt, to provide, that when it was necessary to call in the aid of a clerk in court, a competent fee should be secured to him for his attendance; but it surely never was intended that the clerks in court should be substituted for the Masters as taxing officers; that the Masters should have fees assigned for this purpose, and depute some one else to do their duties." (pp. 16, 17.) "I have before stated that the taxation of costs, another important branch of the Master's duties, is deputed to the sworn clerks: indeed the Masters, as it would appear, know little or nothing about taxing costs." (p. 46.) Mr. Spence founds his remarks on the evidence given before the commissioners. No addition to this testimony can be needed, 397 but thus much I venture to say: in not one of the Masters' offices, when the Lord Chancellor spoke, were the bills of solicitors (the worthy men) taxed by the Master's clerk (the judicious man), with one solitary exception only, the office of Master Stephen: in that office, and in that office alone, were no gratuities permitted to be taken. The whole ground of the Lord Chancellor's playful, imaginative, sweeping censure on the solicitors and the Masters' clerks, in that respect, therefore fails,-the censure is void, and, I wish I could add, of none effect. I am, Sir, Your obedient servant, ARCHIBALD R. F. ROSSER. 19. Great Ormond Street, 14th April, 1831. SUPERIOR COURTS. ROLLS' COurt. VARYING DECREE-PRACTICE. In this case the original bill was filed on the 29th November, 1827, and a decree was ob tained on the 14th of February, 1829, directing a reference to the Master to enquire, whether Joseph Piggott, one of the defendants, had sold a certain estate to the testator in the cause? Joseph Piggott died in October, 1829. The petitioners, however, were ignorant of his death, and in December, 1830, the cause came on for further directions, and a further decree was made thereupon. Soon afterwards the petitioners were informed of his death, when they revived the suit against his real and personal representatives, and presented the present petition, for the purpose of varying the decree, so that the same relief might be obtained against the representatives of Piggott as against himself. Mr. Spence, Mr. Rolfe, and Mr. James Stewart, appeared for the different parties. The Master of the Rolls was of opinion, that the decree could not be varied on petition; but that the cause must be set down for further directions, when the variation might be made. Waight v. Barnes, M.R. April 14. 1831. COURT OF KING'S BENCH. EASTER TERM 1831, PRACTICE COURT. APPEARANCE DAY OF WRIT. Willan v. Collins and wife. Hutchinson moved for a rule to show cause why the bill of Middlesex in this case should not be set aside, on the ground that in the body of the writ the defendant was required to appear on Tuesday the 15th of April, there being no such day. In the notice, however, the day of appearance was stated to be Friday the 15th of April. Taunton J. I think that will do. Though the date of the appearance day mentioned in the body of the writ is inconsistent, yet, as the notice is the material part, and as the day of appearance is properly stated there, the inconsistency is cured. Rule refused. OLD WARRANT OF ATTORNEY-ANONYMOUS. Clarkson moved to enter up judgment on an old warrant of attorney, the party being sworn to be alive on the day before the first day in full term. He admitted that the application was unusual, since the party was not sworn to have been alive on a day in full term. But as the party had been alive since the essoign day, he suggested that that would be sufficient. Taunton J. That is not sufficient. The party must be sworn to have been alive on a day within full term. Rule refused. Wightman shewed cause against a rule obtained by Clarkson in last Hilary Term, on the part of the sheriff of Kent, calling on the plaintiff to show cause why the return of the writ of fi. fa. issued against the goods of the defendant should not bestayed until an indemnity be given to the sheriff by the plaintiff. The sheriff having seized, received a notice from the assignees under a second commission of bankrupt, which had issued against the defendant, that the estate of the defendant under that commission had not paid 158. in the pound, and therefore, under the 6 G. 4. c. 16. § 127. was vested in the assignees. The words of the section were, "that if any person who shall have been so discharged by such certificate as aforesaid, or who shall have compounded with his creditors, or who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid, unless his estate shall produce, after all charges, sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment, but his future estate and effects, (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife and children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same, in like manner as they might have seized property of which such a bankrupt was possessed at the issuing the commission." The question between the judgment creditor and the assignees was, whether this section of the act was to be construed retrospectively or prospectively? Mr. Justice Littledale*, before whom this case had been in the course of last Michaelmas Term, had been of opinion that the act was prospective. A similar opinion had been entertained by the other learned judges before whom it had been. There had not, however, been any formal decision of the courts as to the mode in which the statute ought to be construed. Taunton J., the question, then, is one of law, undecided by the courts. Why should the sheriff be obliged to take upon himself to decide it? He is not bound to do so. I think he ought therefore to have an indemnity. Rule absolute. * L. O. p. 109. ATTORNEY'S BILL.-STATUTE OF LIMITATION. Evans, Execulor, v. Heathcote. In an action by the executor of an attorney, to recover the amount of a debt due from the defendant to the testator, the defendant pleaded, first, the general issue, and, secondly, the statute of limitations. In order to take the debt out of the statute of limitations, a letter from the defendant was produced, in which were these exdifficulty of ascertaining how much is correct, or pressions: "Besides the great delay, is the great otherwise. Not the least reliance is to be placed on his books (meaning the testator's books), as abundant evidence has proved, that not only the bill against my late father, but that against myself too, have been manufactured. I am quite willing to pay what is just, but not by compulsion; and whenever any thing is threatened, my answer is, to take your own course." A verdict was found for the plaintiff, with leave to the defendant to move to enter a nonsuit if the court should be of opinion that this letter was not a sufficient memorandum in writing, within the meaning of Lord Tenterden's act †, to take the case out of the statute of limitations.. Gurney now moved, and the court being of opinion, that it was such a memorandum as satisfied the act, refused the rule. Rule refused. IRELAND. COURT OF CHANCERY. A MOTHER IS LEGALLY ENTITLED TO GUARDIANSHIP OF ILLEGITIMATE CHILDREN PROVIDED FOR BY WILL OF DECEASED, UNLESS SUCH AN OBJECTION TO HER, AS TO FATHER OF ILLEGITIMATE CHILDREN. In re Cairncross, Minors. MR. LITTON (with whom was Mr. Lefroy) moved to confirm the report of the Master, approving of one of the Masters as a proper person to be guardian of the property, and that the Rev. Charles Osborne should be guardian of the persons of the two minors, boys under six years of age. There was a motion on the part of the mother of the minors, that the report be confirmed, save as to that part relating to Mr. Osborne's appointment, and that it should be referred back to the Master to appoint a Roman Catholic as their guardian. This the counsel have delayed making. I hope it will be unnecessary to state the affidavits we have, as to the impropriety of the conduct of the mother of these minors, which renders her quite disqualified to interfere with these children in any way. The children are illegitimate, and entitled to a handsome provision by their father's will. Mr. Wolfe (on behalf of Mrs. Smith, the mother of these children).-I would urge, that by the common law the right of the mother of an illegitimate child is to have the guardianship of it, in preference to the father.-5th Term Reports, 271., the King v. Slopes, where Lord Kenyon said, that a putative father had no right to the custody of the child, although an order of filiation had been got against him to support + 9 G. 4. c. 14. § 1. Minor Correspondence. it. There are cases in 7th East, 579., and in Lord Chancellor.-Does the Master say any thing in his report of the religion of the father? Mr. Wolfe.- He does not. They swear on the other side that all his family had been Protestants; that they were all freemen of the city of Dublin, and that, therefore, he ought to be a Protestant; that whenever he did attend a house of worship, it was to a Protestant church he went; and that he ate meat on Fridays and Saturdays; and that they never heard of his going to a Roman Catholic chapel, and that is the way they prove him to have been a Protestant. Lord Chancellor.-The material fact in the case appearing to me to be necessary to be known is, what actually was the religion of the father? The Master says nothing on the subject. I will not decide on contradictory affidavits, but will send it back to the Master to report on this fact. Mr. Wolfe.-Can the Court consider that a material fact, when I have, I think, shown, that the mother of these children has a right to have them brought up as she thinks best? I will even suppose, now, that the father was, and died a Protestant; she has the common law right. But, besides, in 2 Simon, 57., it will be found, that children, even if the Court thinks it necessary to take them finally from the mother, it will not do so while they are in the age of nurture, $99 when they cannot dispense with a mother's care and attention, which is laid down there to be the age of seven years--the eldest of these children is not six. [Counsel then went into various circumstances in the affidavits, to defend the mother from the charges made against her, and that the impropriety imputed to her by an old relation of the father's was denied by the affidavit of the person with whom it was sworn to have been committed.] Lord Chancellor.-If the father was alive here, and expressed a desire as to the religion in which these children should be educated, could I possibly have interfered with his wishes? I think, then, his religion is most important for me to know, and I must send it back to the Master to enquire the religion of the father, and whether he had expressed any wishes or opinion as to the religion in which these children should be brought up. Mr. Lefroy then went minutely into the affidavits, to show the objection to the character of this mother, who was sworn to have lived on improper terms with the solicitor now concerned for her, even during the life of Mr. Cairncross. He showed, from documentary evidence, the truth of the allegation in the affidavits, of the religion of Cairncross and his family. He admitted, that the mother of illegitimate children had at common law the right for which Mr. Wolfe contended; but as a father of legitimate children would not be permitted to interfere with his legitimate offspring, if sufficient ground were laid of the impropriety of his general conduct, on the same grounds he now insisted that this mother could not hope to have any sort of interference with these children, after the conduct which had been imputed to her by these affidavits. Mr. Litton. The petition on the other side insists on none but a Roman Catholic being appointed guardian. It admits that the gentleman appointed is above all exception; and the Master reports him a most proper person to be a guardian. Now, if the Master should, under the order about to be pronounced, report that the father had been a Roman Catholic, surely the Court would not, under the circumstances detailed in the affidavits, disturb the rest of the report. Lord Chancellor.—I certainly would not confirm that report if the Master now reports that the father was a Roman Catholic, or desired that the children should be educated in that persuasion. Mr. Litton.-The Master has suggested no person to be the guardian: by whom is that now to be done? Lord Chancellor.-We will enquire into that when the report comes back; I cannot decide on this report. Feb. 19. 1831. [From the Law Recorder.] MINOR CORRESPONDENCE. ANSWERS TO QUERIES IN NO. XXIII. I am not aware, nor do I think, any such case has been so decided. I know that many executions have, since the time stated, issued under similar circumstances, without any writ of enquiry, and that no irregularity has been complained of on that account. It has been suggested that the rule should be, to have an enquiry in such cases, 1 Chitt. Rep. 621. And it was doubted by Holroyd J., in Arden v. Connell, 5 Barn. & Ald. 885., whether a writ of enquiry was not necessary before final judgment in an action of debt for use and occupation; but I think that nothing further has since occurred in any of the courts. If such an important point had, as it is supposed, been decided, it would have undoubtedly appeared in the Reports. H. H.'s informant was, perhaps, under misapprehension as to the result of the case in 5 Barn. & Ald. TO THE FOURTH QUERY. The term of five years would be insufficient. The business of an attorney is not a trade; and, upon the slight enquiry I have had an opportunity to make, it does not appear that there is any instance, in London, where an attorney's clerk has been admitted to his freedom under any period of service. In Rex v. Mayor of Doncaster, 7 Barn. & Cress. 631., where, by the custom, all persons having served an apprenticeship for seven years to a free burgess carrying on trade within the borough were entitled to be admitted to the office of a free burgess, it was ruled, that an articled clerk who had served that time to an attorney, a free burgess resident within the borough, was not entitled to his freedom. TO THE FIFTH QUERY. It should seem that an infant is not competent to act as an attorney at law, or in any office of public trust, Co. Litt. 128. a.; and see Claridge v. Evelyn, 5 Barn. & Ald. 81. Sir William Blackstone says, that " an attorney is a person put in the place, stead, or turn, of another, to manage his law concerns," 3 Com. 25.; and it is stated, that the reason why an infant cannot sue or defend but by guardian is, because he has not the knowledge of his own affairs, and sufficient discretion to choose a man to plead well for him, 2 Roll. 287, &c. Now it could not be exactly the "perfection of reason," as we are taught to consider the "law," to hold, that an infant attorney was competent (particularly as no examination of fitness now takes place) to manage his client's affairs better than the law would give him the credit of having the ability to conduct his own. The Court surely would never sanction the appointment of the blind to lead the blind. X. D. MISCELLANEA. TRIAL BY BATTEL. In the year 1242, David de Hastings, Earl of Atholl, was among other Scottish nobles engaged in a tournament, where he chanced to overthrow William Bisset, a favourite of the king, whose interest was great, and his family powerful and numerous. A fatal animosity rose; in consequence of which (as was at least generally supposed), the Earl of Atholl was assassinated at Haddington; and the house in which he lodged was burned. Suspicion fell on Bisset; and the nobility of Scotland rose in arms and demanded his life. Bisset stood on his defence. He declared that he was fifty miles distant from Haddington on the night the murder was perpetrated. He offered to vindicate his innocence by single combat against every accuser; and to prove by the oaths of any number of veteran soldiers whose testimony should be required, that he was incapable of such an act of treachery as had been charged against him. heroic family of Couci, offered, as a compurgaThe queen herself, a beautiful princess of the tor, to make her solemn oath, that Bisset had never meditated so enormous a crime. But the nobles around the king rejected the defences offered by Bisset, demanding, at the same time, if he was willing to commit himself to the oaths of his fellow-subjects and the opinion of the neighbourhood. This he refused, "considering," says Fordun, "the malicious prepossessions of rustics, and the general prejudice of the province." He was obliged therefore to fly from Scotland; and the event was his ruin, and that of his numerous family and allies.- Quarterly Review for February. ON THE MEASURES PROPOSED BY THE REAL PROPERTY COMMISSIONERS. SOME few persons have doubted whether any benefit would result from the labours of the Commissioners appointed to revise and amend the laws of the country. We have, however, always looked towards them with confidence: had our feelings been different, we think we should be forced to admit that the bills lately proposed by the Real Property Commission, and introduced into the late House of Commons by Mr. Campbell, were entitled to the approbation and support of the profession and of the country. They effect, we confess, the kind of reform to which we incline a reform which applies a direct and complete remedy to a defined and positive grievance; a reform which proceeds by degrees; a reform, all the consequences of which are well considered and provided for; a reform which has long been demanded, and the necessity of which is universally conceded. This is the sort of reform that should be introduced into our laws. This is the reform contemplated by Mr. Campbell's bills; and we are happy to express our pleasure and satisfaction in witnessing their introduction, and our concurrence in most of their provisions. In our Monthly Record for the present month we have reported the interesting debate which took place on the motion for bringing in these bills. We had intended to have presented our readers with an analysis of them; but as they are now necessarily postponed, and may be introduced into another parliament in a different shape, this, we think, will be unnecessary, and it will be our simple duty shortly to state their purport. In the first place, they will alter the laws respecting inheritance and descent. By the present law, as is well known, a father can NO. XXVI. not inherit land directly from his child: land cannot lineally ascend. It is proposed to allow him to inherit his son's lands, in default of issue of his son. By another well known anomaly, the half-blood is excluded from the inheritance of land. It is proposed, after the issue and the father of the owner, and his brothers and sisters of the full-blood, are exhausted, to allow the half-blood to inherit. By the present law, a widow, on the death of her husband, becomes entitled for her life to one third of the lands of which her husband was seised at any time during the coverture. This inconvenient rule is evaded by limitations which are technically known as uses to bar dower, which are at best a clumsy contrivance, and are sometimes of much practical inconvenience, as they often leave outstanding a fraction of the legal estate. The Commissioners propose to give to the widow for life one third of the lands of which her husband dies seised and undisposed of by will. Thus he may, during the coverture, alien such lands as he may please, without the necessity of the concurrence of his wife. The widow, however, will have an equal right to a third of the equitable as well as the legal estates of her husband, to which she is not now entitled. This will remove one great restraint upon alienation. We think, however, that a clause might be advantageously introduced, allowing a person to have lands conveyed to him, if he please, free from all claim to dower; and that a mere declaration of such a wish in the deed should be sufficient. We may also suggest, that a difficulty will arise as to whether a contract for lands would defeat a title to dower; and that this should be provided for expressly. The law of curtesy is also to be altered. At present, if a man have issue by his wife he is entitled to a life interest in all her lands. It is proposed that he shall have I i |
