40 Superior Courts: Common Pleas.-Exchequer. Exparte Newton. May 4, 5, 1855. HABEAS CORPUS.-MOTION FOR.-WHO MAY Held, that the father, although formerly a THIS was a motion for a writ of habeas corpus for the discharge of the defendant, Francis Robert Newton, who was in custody under a conviction for an assault. A. Newton, who was formerly a barrister, in support. The Court, after inquiring in what capacity he applied, and on being informed in that of father and agent of the prisoner, said that there was only one instance where any but a counsel or attorney had been allowed to make a similar application In re Cobbett, and which was different to the present case. Without laying down any indisputable rule, the motion had better be made by counsel in the ordinary way. Exparte Newton. May 5, 1855. HABEAS CORPUS. — DISCHARGE FROM CUS TODY.-TRAVERSABLE AVERMENT. A motion for a writ of habeas corpus to discharge the defendant from custody under a conviction for an assault at N., on the ground that N. was not within the jurisdiction of the Central Criminal Court, was refused, the averment on the record of jurisdiction being traversable. THIS was a motion for a habeas corpus to discharge the prisoner from custody under a conviction at the Central Criminal Court, for an assault on Mr. Kennedy at the Beulah Spa, Norwood. It appeared that that place was out of the jurisdiction of the Central Criminal Court, being in the parish of Croydon and not of Lambeth, and that the Attorney-General had refused his fiat for a writ of error in accordance with Rex v. Carlile, 2 B. & Ad. 971, and an application for a mandamus to the Queen's Bench on the Attorney-General to grant such fiat, had also been refused (reported ante, vol. xlix., p. 506). W. H. Hodgson in support, citing Exparte Bailey, 23 Law J., N. S., Q. B. 353. The Court said, that the averment of jurisdiction in the record was traversable, and was either traversable under a plea of "Not guilty," or if pleadable, was waived by the defendant having pleaded over. If the averment were traversed by the plea of not guilty, it had been found by the verdict that the offence was committed within the jurisdiction. But if the record was wrong, the proper remedy was by application to the Attorney-General for a writ of error coram nobis, and as on this subject the Attorney-General had exercised his discretion, he could not be compelled to grant his fiat, and the defendant might then appeal to the prerogative of the Crown. The application would be, therefore, refused. Court of Exchequer. Evans v. Robinson. April 20, 1855. NEW TRIAL ON GROUND OF SURPRISE AND In an action for crim. con., a motion for a The rule was also refused on the ground of excessive damages, the presiding Judge being satisfied with their amount, and it not being shown that the jury acted from a corrupt and wrong motive. THIS was a motion for a rule nisi to set aside the verdict for the plaintiff and for a new trial in this action of crim. con., on the ground of surprise and that the damages (5001.) were excessive. A rule for a second trial has been made absolute (reported ante, vol. 49, p. 384). The evidence in question was that of a cabman, against several of whose statements the affidavit of his master was read. Watson in support. The Court said, that a new trial on the ground of surprise was never granted where the defendant had not made an affidavit pledging himself to the truth of the state of circumstances on which he relied; and as to the damages being excessive, unless it was perfectly clear that the jury had acted from a corrupt and wrong motive, the Court would not grant a new trial. Mr. Justice Cresswell was also quite satisfied with the verdict and the amount of damages, and the rule would therefore be refused. Held, that a landlord is entitled to come in and defend in an action of ejectment, without giving security for costs, although abroad-per Pollock, L.C.B., and Platt and Martin, B.B., dissentiente Parke, B. THIS was a rule nisi to rescind an order made by Coleridge, J., at Chambers, requiring security for costs to be given by the landlord, who was abroad, upon leave being granted to defend this action of ejectment against the tenant in occupation. Garth showed cause against the rule, which was supported by J. P. Wilde. The Court (per Pollock, L.C.B., and Platt Martin, B.B., dissentiente Parke, B.) said, that although the practice might formerly have been perhaps different, the provisions of the new Act absolutely entitled the landlord, whether abroad or not, to come in and defend without any terms or conditions, and the rule would accordingly be made absolute. The Legal Observer, AND SOLICITORS' JOURNAL. -"Still attorneyed at your service."-Shakespeare, m SATURDAY, MAY 19, 1855. PROGRESS OF LEGISLATION. mittee of the House of Lords during the last Session, and the measure having reLOOKING at the advanced stage of the ceived the sanction of their lordships, was Session, and the near approach of the sent to the other House of Parliament. Whitsun Holidays, the Profession must The House of Commons, however, did not feel indebted to Lord St. Leonards, the pass the measure, and it appeared to him Lord Chancellor, and Lord Lyndhurst, for that the proper course to have pursued this bringing to the notice of the House of Session would have been to re-introduce the Lords, on the 11th instant, several of the bill in their lordships' House; but that not important subjects now under the consideration of Parliament. It is very material that the alterations which are really intended to be made should be kept in mind, and if the Government have determined to carry forward any of these measures, the Profession should direct their continued attention to them. We shall notice the subjects in the order which appear to us the most essential for legal consideration. 1. THE ECCLESIASTICAL COURTS. having been done, Lord St. Leonards called on the Lord Chancellor to state what were the intentions of the Government with respect to the other branches of the Ecclesiastical Courts: "He wanted to know what was to become of the Arches' Court; and he hoped they would not be called upon to offer any opinion upon individual features in the proposed plan of legal reform until the whole plan had been submitted to them. A promise had been made that a general plan for reform of the EcclesiThe Testamentary Jurisdiction Bill, it astical Courts would be brought forward. should be observed, is not the only mea--that the Testamentary Jurisdiction Bill Now, what he feared would take place was this sure affecting the Ecclesiastical Courts and would pass in some shape or other without the arrangements to be made with the ad- their having had an opportunity of consider. vocates and proctors who practise therein. ing the general scheme unaffected by the deciThere is also the Jurisdiction in Marriage sion of the other House of Parliament upon a and Divorce Cases and Clerical Discipline, most important part of it. No one could form and especially in Admiralty Causes. It is manifest that the compensation to the practitioners cannot be satisfactorily settled without considering all the branches of the Ecclesiastical Courts. The proof of wills and the grant of administrations of intestates' estates will not alone settle the matters in question relating to Doctors' Commons. We avail ourselves of the remarks made in the House of Lords on the 11th instant on these topics. Lord St. Leonards observed, that the Testamentary Jurisdiction Bill having been very fully considered before a Select ComVOL. L. No. 1,419. a satisfactory opinion as to whether a measure was applicable to the whole jurisdiction without a knowledge of all its features. In referthere was some reason to complain that no inence to the Testamentary Jurisdiction Bill formation had been given by her Majesty's Government as to the amount of compensation to be paid under it. He had heard it, however, estimated at from 140,000l. to 150,000!, Now that was a very large sum of money, and would have to be paid by the suitors from estimated savings in other directions. At the same time he could not help thinking that it required a great deal of sound argument to show how such a burden could be properly placed upon the suitors at all." D The Lord Chancellor, in reply to this which must be brought forward before the part of Lord St. Leonard's inquiry, ob- Testamentary Bill can be passed. served "That the Testamentary Jurisdiction Bill had been first introduced this session in the other House of Parliament, inasmuch as their lordships' approval had been already conceded 2. PROFESSIONAL REMUNERATION. Our readers will have observed that Lord Lyndhurst has again brought the subject of the rules of taxing Solicitors' costs before to that measure. He had reason to believe the House of Lords. His that in its present shape, altered as it was from Lord St. Leonards observed, in the the measure which had been before their lord-course of the debate, that when he had the ships, it would receive the sanction of the honour of holding the seals of office he had House of Commons, and would, therefore, be approved of a certain scale of fees for the the less discussed when before them. As to Solicitors practising in his Court. the extent of the compensation to be paid to noble and learned friend Lord Lyndhurst the proctors, he was not prepared to state its exact amount, though he did not think it could had, however, disapproved of that scale, and be so much as 140,000l. Perhaps 100,000l. its revision was contemplated by the noble would not be more than would be required. and learned lord on the woolsack. Now, He hoped, however, that the amount, whatever speaking generally on the subject, he would it was, would be provided for by continuing say that it was much easier to increase a the probate fees at present paid to proctors scale of charges than to reduce one after until such time as the compensation was paid it had subsisted for a certain period. The off, and it was calculated that from that source; complaint-and no doubt the just comduring a limited time, a sufficient fund would be produced to avoid the imposition of further plaint-of the solicitors was, that while there hardships upon the suitors. He admitted that, was a great deal of unimportant and easily to a certain extent, the other reforms of the executed business for which they were too Ecclesiastical Courts were mixed up with the well remunerated, there was, on the other Testamentary Jurisdiction Bill; still, upon the hand, a great deal of business well exewhole, they must stand upon their own foot-cuted for which they were not adequately ing. paid. "With regard to the Divorce Bill of last Lord Lyndhurst wished to explain that his Session, he could inform their lordships that he had prepared a precisely similar Bill for in- objections to the present scale of fees in the troduction this Session as soon as the Testa- Court of Chancery were based upon this mentary Jurisdiction Bill should have been principle; that costs were taxed according sanctioned. There was no connexion, in fact, to the length of the proceedings; so that a between the Testamentary Jurisdiction Bill bounty was thus held out to Solicitors to and the Church Discipline Bill, which was a lengthen proceedings as much as possible, question of a purely spiritual nature. It and their interests and the interests of the might, indeed, be thought necessary to pass suitors became consequently opposed. What the former measure and leave the latter un- he desired to see brought about was that the touched. The Government had, however, prepared a new Church Discipline Bill, which scale of remuneration should have regard they had submitted to the consideration of the not to the length of proceedings, but to the bishops, some of whom had approved of it, value of work done. while others had disapproved of it. He had been engaged during the last few days in endeavouring to find out what these exact points were of which the bishops generally disap-3. proved, with a view of modifying the measure so as, if possible, to render it generally acceptable." The Lord Chancellor said that the whole question of costs was under inquiry. SALES AND LEASES UNDER SETTLE MENTS. The Lord Chancellor, on introducing this Bill, the principal clauses of which are given It may be true that the jurisdiction in in a subsequent page, observed, that a very regard to Divorce and Church Discipline large, if not the greater portion of the are quite distinct from the Testamentary landed property of this country was held branch of the Ecclesiastical Courts, but the by persons who were not the absolute owners practitioners are the same, and the mode of in fee-simple, but who had a limited interest proceeding similar. It would be a very in it. The consequence of this settlement incomplete measure of reform unless all of property was, that a person, not being departments of the Ecclesiastical Courts, the absolute owner, was unable to deal with and their several Judges, officers, and prac- property in the manner perhaps most benetitioners were included in the plan. We ficial to his family or the community at wait, therefore, for the other measures large. Some evils might result from settle He ments, but on the whole he thought that Lord Campbell said, the Bill now laid on marriage and other settlements had con- the table had his entire concurrence. duced to the welfare, not only of individuals, believed that settlements were not only but of society at large. It was to meet the good for individuals, but conduced to the difficulties and expense attending the pre- good cultivation of the soil and the general sent method of obtaining leasing powers prosperity of the country. - under settlements by Act of Parliament that he asked leave of their lordships to intro- 4. TENANTS' COMPENSATION (IRELAND). duce this measure. The present method of We would next advert to one of the Irish obtaining Acts of Parliament was objection- Real Property Bills, which it is important able, not only on the ground of expense, but should not be passed unnoticed on this side because it was impolitic to mix up judicial the Channel. Lord St. Leonards thus adwith legislative matters. These private dressed the House on the subject of the Acts of Parliament were objectionable on retrospective clause in the Bill for granting the score of expense. He had caused 16 compensation to tenants :— private Bills for the leasings, &c., of estates to be furnished to him, and found the cost to the principle of such a clause, still when For himself, he had always been opposed to be 1,2701. for each-the whole expense he found that the Government, of which to parties being about 20,000l. a year for he was a member, had adopted such a enabling them to do that which they ought clause, circumscribed and defined within certo have power to do without any Act of tain narrow limits, he considered he was not Parliament. He would transfer the power at liberty to oppose its passing. He hoped, now exercised in these matters to the Court however, it would be explained whether the of Chancery, the principle having been reGovernment had come to any definite conclucognised in the case of the Ecclesiastical sions with reference to the Bill now before the Matters, Charities, and the Municipal Cor- hoped they would abide by them. He thought House of Commons; and if they had, he poration Acts. He proposed by the present it might have been reasonably expected, holdBill, that any persons whose necessities ing the views which they did, that the Governshould require a power to lease their pro- ment itself would have come forward with a perty in agriculture, mining, building leases, measure, and endeavoured to have carried it &c., should at once apply to one of the through. Instead of that they had left the Judges of the Court of Chancery, who should have power to determine that such lease should be granted.. The Bill had one other object-viz. to give a prima facie right to tenants for life to grant leases, unless the author of the settlement expressly forbid such a proceeding. matter in the hands of a private individual— an hon. and learned gentleman-who was of a retrospective allowance for the improveknown to hold a very strong opinion in favour ments of tenants in Ireland. The consequence was that a measure had been introduced, which was now travelling up to their lordships, and which, in all likelihood, would lead to a differLord Lyndhurst thought their lordships ence of opinion between the two Houses. At ought to be much indebted to his noble and the same time, he was bound to add, that learned friend for this Bill. Of his own cumscribed as it was before, he should not feel should the measure come up, limited and cirknowledge, an application of a noble lord to justified in opposing, although he could not Parliament for power to lease a portion of regard it even then with favour. But in the his property, had cost him 5,0007. In an- shape in which the Bill obtained a second other case the expense was 6,000l. The reading from the House of Commons, he would present law was not only unjust to large state at once that it was one which he never owners of property, but it operated with could approve of, nor could any one that had still greater hardship on the owners of retained the slightest regard for the rights of small estates. He could see no difficulty that there was not the slightest foundation for property. He would pledge himself to show in giving the Court of Chancery the power the assumption that any rule of equity had to complete these transactions, the more ever been propounded, or that there was any especially as the principle of the bill had case in equity producible, sanctioning the been recognised over and over again. He clause in the Bill granting compensation for highly approved of the Bill, which, he be- retrospective improvements. lieved, would be hailed with satisfaction throughout the country. Lord Redesdale supported the Bill, which he had no doubt would contain provisions for carrying out the intentions of those who made settlements. The Lord Chancellor quite concurred with his noble and learned friend in considering the Tenants' Compensation Bill to be a most imlearned friend, that neither he nor any of his portant measure, and assured his noble and colleagues in the Government had any peculiar sympathy as an abstract principle for retrospective compensation. If it be supposed creation of three Vice-Chancellors was not -as he believed it was erroneously supposed-called for by the state of business in Ireland. it had been argued that that was a principle In England they were of necessity appointed, which was consistent with the ordinary rules but not in lieu of the Masters, in whose place, of equity in this country, he could not assent and for the fulfilment of whose duties, it had to such a proposition, nor did he believe that only been deemed requisite to appoint a numit was argued with any such intent. He had ber of chief clerks. He had had some experinot had as yet an opportunity of communicat- ence of equity business in Ireland-and there ing with his hon. and learned friend the Solici- was no reason for believing that since then it tor-General on the subject; but he had no was on the increase-but when he was there doubt that all his hon. and learned friend he would venture to say that the judicial power meant to say was, that analogous cases of re- was fully adequate to discharge all the busitrospective compensation might be deduced ness that came before it. The Chancellor and from opinions pronounced by Sir William the Master of the Rolls were quite competent Grant and Lord Eldon in certain cases. There to transact the whole judicial business of Irewere cases of analogy, but incidentally alluded land. He trusted, therefore, that any measure to by his hon. and learned friend in the course which the Government might have in conof the debate which took place on the subject templation would not be encumbered by the in the other House of Parliament. He (the appointment of Judges who were not reLord Chancellor) thought that the case of the quired. Irish tenant was an exceptional case, which it was important, with a view to the peace of society, to deal with in an exceptional manner. An hon. and learned gentleman introduced a Bill that Session into the other House framed upon that principle, but going somewhat further than her Majesty's Government were willing to go. A debate took place upon the subject, and the Bill was carried through its second reading by a large majority. The Government had since taken charge of the Bill upon certain conditions -provided that the hon. and learned gentleman who introduced the measure would be satisfied to limit the principle of retrospective compensation even below what it was in the measure introduced a few years ago by the AttorneyGeneral for Ireland in the administration of his noble friend (Lord Derby), confining the retrospective compensation to houses built by the tenant, to roads made, and to exterior fences made; and limiting such claims to a certain defined period of time, and also confining them to cases where the landlord turned the tenant out of possession. That was the principle to which the Government were willing to assent. No doubt it was always a difficult doctrine to support even to that extent; but still as a matter of compromise the Government were willing to accede to it. "With reference to the Irish Encumbered Estates' Court, he thought that nothing could be more unwise than to maintain a tribunal of that character exceptionally for Ireland. He thought that the rule for Ireland ought to be that common to England; but whether such a Court should be established for either country at all, involved, in his opinion, considerations relative to property the most momentous ever raised before Parliament." The Lord Chancellor said, in reference to the Bills relating to a reform of the Court of Chancery in Ireland, introduced into the other House by the hon. and learned gentleman who filled the office of Solicitor-General in the administration of Earl Derby, the Government, though not expressing their disapproval of those measures, felt that they could not assent to them in consequence of their having issued a commission to inquire into the state of the Court of Chancery and into that of the Encumbered Estates Court; and pending such inquiry they did not deem themselves justified in legislating upon the subject. He had every reason to expect the report of the commissioners to be laid before them in sufficient time to enable the Government to introduce a Bill founded upon it in the course of the present Session. The Bill relating to Encumbered Estates would only extend to Ireland; but if 5. IRISH COURT OF CHANCERY AND EN- it be found to work well, the principle would CUMBERED ESTATES' BILLS. Lord St. Leonards next adverted to the subject of the Irish Court of Chancery, which had been taken up by an hon. and learned friend of his, whose talents were very great, and for whom he entertained a great respect. "He most earnestly hoped that any measure to be introduced by her Majesty's Government, altering the constitution of the Irish Court of Chancery, would not be based upon a supposed analogy of the Irish and English Courts. It was proposed to create in Ireland three Vice-Chancellors by the abolition of the Masters. Now there could be no doubt that the probably be applied to England. dence in the measures of his noble and learned Lord Campbell said, he had the fullest confifriend on the woolsack. He doubted, however, whether the Government had adopted the best method of carrying out their measures of legal reform. When the question of law reform was to be brought forward he thought that all those who were expected to take part in it should be previously consulted as to the intentions of the Government on the subject. |