Extended Jurisdiction of Local Courts. 331 been given by the act or acts establishing or would sanction such an arrangement, if regulating such court and its proceedings." there had been time to call their attention The question arising on this enactment to its manifest impropriety. This is anois,-whether, supposing it to be the in- ther evil consequence of the irregularity tention of the legislature to give these of passing important new clauses at the courts exclusive jurisdiction up to 201., last stage of a bill. The qualification the words of the clause carry out suffi- ought to have been 10 years' practice as ciently such intention. We shall preto all these qualified judges. Let it be sently show that under the 21st section it recollected, that all the higher appointdoes not appear the legislature did so ments, whether official or judicial, properly intend; but assuming that they did, we belong to barristers. These minor proare then to consider the strict language of motions might in general be very judiciously conferred on attorneys and solicitors. the act. of 5th. It is then provided, that It states, in effect, that the "powers and authorities" now vested in such courts shall extend to the enlarged jurisdiction "In any court in which there shall be no given by this act, as fully as if given by judge qualified as aforesaid, the person or the act "establishing or regulating such persons to whom the appointment of judge, or court and its proceedings.' Now these if there be no judge, to whom the appointment powers and authorities any clerk of the court belongs, or the maregulating the court and its proceedings do not neces- meeting called for the purpose, shall within jority of such persons who shall be present at a sarily extend to the exclusion of the juris- three calendar months next after the making diction of the superior courts, but are any such order," [that is to say, the order of satisfied, as the words seem to imply, by the Privy Council.] regulating the course of proceeding in "And also within three calendar months matters amounting to 201. which formerly applied only to 21. or 51., or whatever might be the extent of the original jurisdiction. 4th. Then comes an essential proviso, "That no such order shall take effect in respect of any court which shall not have a judge who is either a barrister at law, or special pleader, or an attorney of one of her Majesty's superior courts of common law at Westminster, who shall have practised as an attorney for at least ten years." next after any vacancy of the said office of subject to the approval of her Majesty, to be judge, appoint a judge, qualified as aforesaid, signified under the royal sign manual; "And in default of any such appointment, it shall be lawful for her Majesty to appoint a the court in which such default shall have been judge, qualified as hereinbefore provided, for made." It appears, therefore, that the enlargement of the court-in whomsoever the appointment of judge or clerk may bemust originate with the Privy Council; It is observable here, that whilst the and that until an order in council has been qualification of an attorney for the office made enlarging the jurisdiction of the of judge must be an actual practising for court, the persons having the appointment at least ten years, the barrister or special of the judge, do not appear entitled to call pleader requires no previous legal prepa- tion. the meeting for the purpose of the elecration. Attorneys must serve a clerkship The patrons (as they may be for five years, and be examined; so that called) of the present courts are either a in fact here is a provision in one case for large or small body of commissioners, or 15 years' preparation, whilst the moment some noble lord or honourable commoner; a barrister has been called, or a special cise their power of appointing a judge but it seems clear that they cannot exerpleader has received his certificate to practise, he may be instantly promoted to until the government has put the matter the judgeship without passing any exami- in motion by an order in council. nation, or having either of them drawn a declaration or plea, or been engaged in any single motion or trial before the court. This is decidedly wrong; and we are sure that neither the Lord Chancellor nor the Attorney or Solicitor-General This means, though not before mentioned, the order of the Privy Council. 6th. The same (9th) clause then provides, "That notice of the intention of her Majesty, with the advice of her Privy Council, to take into consideration the expediency of making any such order, and of the time when the same will be considered, shall be given in the London Gazette one calendar month at least before the same shall be so considered." It may be a question, whether it is not 332 Extended Jurisdiction of Local Courts. competent for any attorney of the superior present. The commissioners may still act courts, who, by himself or his clients, may both as judges and jury in the former small be affected by the extended jurisdiction, matters, if they choose to be present in to petition against "such order," and be heard by himself or his counsel against its expediency. Some able practitioner might try the question. sufficient number; but in the higher class of cases their services are dispensed with altogether. We know not what inducement the commissioners may have to We have thus subdivided this long attend, but according to every probability, section into its various component parts, they will in future not attend, even in the whereby we trust our readers will dis- cases in which they are permitted. It tinctly perceive its operation and effect, may be a public convenience to diminish though they may not agree in our view of the number of the jury in small matters, all the points to which we have called their attention. We proceed now to the other principal clauses in this part of the act. By the 21st section it is provided, "That any suit instituted in any such court, wherein the claim or demand shall exceed the sum of 101., shall be removable by certiorari or otherwise into any of her Majesty's superior courts of common law at Westminster, or into the Court of Common Pleas at Lancaster, by leave of a judge of any one of the said courts, and upon such terms as he shall order." but thus to abolish them altogether will scarcely receive public approbation. On this subject we may quote the opinion of Mr. T. à Beckett, in the second edition of his able pamphlet : "One of the most formidable objections to the act, as it at present stands, is the power given to the judge to decide arbitrarily in the cases to which the jurisdiction is to be extended to meet; a power possessed by no judge of the superior courts of common law, and too great a one to be entrusted to any individual, especially when it is remembered that against it there is no appeal. By a strange anomaly, the judge does not possess the exclusive power of deciding on matters at present within the jurisdiction of the court, the commissioners in these cases having a voice in the matter. It cannot be intended, we presume, that a defendant may remove a cause in which the demand against him exceeds 10%, and that the plaintiff shall not have "One word as to the persons who are likely the same power. If the defendant may to be charged with this extraordinary privilege, choose the court in which he will have the or rather responsibility. The judges are to be question tried, the plaintiff must have equal chosen by the commissioners themselves, and liberty. The course of legislation, indeed, the appointments will be sufficiently valuable has of late favoured debtors and disre- to cause great exertion to be made to obtain them by those who, although legally qualified garded creditors; but it would be someto hold them, may possess nothing but a local thing "too bad" to give the selection of influence and this legal qualification to justify the court to the defendant alone. If this their application. If the former be great, they is not to be so, then of course the plaintiff may be placed in a most important post without should be enabled to commence his suit in the superior court in the first instance, and thus the expense of removal will be saved. The next important clause is the 11th, by which being in the smallest degree practically qualified to perform its duties. It may be that the choice proves a fortunate one to the public; but whether this be so or no, when once made it cannot be recalled. It therefore becomes a positive duty imposed upon the legislature at a future session to place some check upon the "In all cases of debts and demands which exclusive power at present vested in the judge, were not within the jurisdiction of the court not only for the satisfaction of the suitors, but before the passing of this act, and also whenever on the general principles by which all wellregulated states profess to be influenced.” the number of commissioners present at any court shall not be sufficient for the trial of It does not appear to be clearly settled causes according to the constitution of the by the act whether the extended jurisdiccourt before the passing of this act, the judge tion is to protect debtors from being sued shall act alone with all the powers of the court, and shall determine all questions, as well of any where except in the court of their fact as of law, in the causes which shall be several districts, although their creditors do not reside within such districts. It could brought before him." scarcely be intended to drive the merchants and wholesale dealers to the districts of Here is an abolition of the trial by jury with a vengeance! Up to 40s. or 5l., or whatever may be the original jurisdiction e Remarks on the present state of the Law of the court, the judge cannot act alone, if of Debtor and Creditor, with Suggestions for a sufficient number of commissioners be its Improvement. Butterworth. New Statutes Effecting Alterations in the Law. 333 their debtors in all parts of the country. The whole is wrapped in profound mystery. In the recent government plan for extend- One of two things, then, must be,- either ing county courts, the power of exclusive this is designed, or it is not designed. If jurisdiction was limited to cases in which it is not designed, no honest government both parties resided in the same district; will act on these clauses. If it is designed, and if this act, by implication, as it were, these clauses have been so drawn and should be held to oust the jurisdiction of passed to shelter some job or series of the superior courts, we predict that parlia-jobs. Pray, then, sir, do one more serment will soon be called on to amend the vice: keep your eyes open, even in the depth of the long vacation; if you do, I should be not surprised at finding these clauses turn out a very harmless affair after all. VIGILANS. act. City, Aug. 19. We have thus gone over the principal clauses. The others relate to the removal of the judges of these inferior courts (s. 10); to the appointment of deputies (s. 11); the execution of process in Westminster and Southwark (s. 13); the fees payable for proceedings in the court (s. 14); the fees and salaries still payable NEW STATUTES EFFECTING ALTERAunder the existing acts (s. 16); the poundage payable by suitors (s. 17); the summoning of witnesses (s. 18); appropriating the unclaimed suitors' money (ss. 19 & 20); and authorising the execution of warrants and levying executions out of the jurisdiction (s. 22). THE LOCAL COURT SCHEME. To the Editor of the Legal Observer. TIONS IN THE LAW. CHANCERY ADMINISTRATION OF JUSTICE. 8 & 9 VICT. c. 105. An act for amending certain acts of the fourth and fifth years of the reign of her Majesty, for Facilitating the Administration of Justice in the Court of Chancery; and for providing for the discharge of the Duties of the Subpœna Office after the death, resignation, or removal of the present patentee of that office. [4th August, 1845.] SIR,-The profession and the public are WHEREAS an act was passed in the 3 & 4 much obliged to you for the manly stand Vict. (c. 94,) intituled "An act for facilitating you have always made against the Local the Administration of Justice in the Court of Courts Bill; and I am glad to find, that Chancery," whereby power was given to the even at the last hour you are still at your of the Master of the Rolls and the ViceLord Chancellor, with the advice and consent post. I am myself a late and reluctant Chancellor, or one of them, to make, from convert to the necessity of establishing time to time, and at any time within five years some general and cheaper scheme for the from the passing of the said act, any rules, recovery of small debts. But at the time orders, and regulations for the purposes in the that many professional men were turning said act mentioned; and it was thereby entheir attention to devising the best means tions should be laid before both houses of acted, that all such rules, orders, and regulaof meeting the desire of the public in this parliament, if parliament should be then sitting, respect, all their efforts are well nigh de- immediately upon the making or issuing of the feated by the passing on the sudden, same, or if parliament should not then be without warning or preparation, the very sitting, then within five days after the next worst plan that ever was devised! By a meeting thereof: And whereas another act was few incomprehensible clauses, unconsi- passed in the 4 & 5 Vict. (c. 52,) whereby it was dered by any one, the whole machinery of enacted, that every such rule, order, or regulajustice in this country is to be disarranged. should, from and after the time in that behalf tion made in pursuance of the said recited act, Such conduct as this is disgraceful; and I to be appointed by the Lord Chancellor, with know not who is to blame for it. The such advice and consent as aforesaid, and if no only question which can now be asked is time should be so appointed, then from and this, who is to gain by this job? for job after the making thereof, be binding and obliit is, you may rely on it. Who is to have gatory on the said court, and be of like force the patronage of these places? Is it the had been expressly enacted by parliament; and effect as if the provisions therein contained Lord Chancellor? or is it the Home and it was thereby provided, that if either of Secretary? or is it — the commissioners of the houses of parliament should, by any resothe courts of request? or the common crier ? lution passed at any time before such house of 334 New Statutes Effecting Alterations in the Law. 2. All rules, &c. so made to be deemed general rules, &c. And be it enacted, That all rules, orders, and regulations made and to be hereafter made under the provisions of the said recited acts and this act, or any of them, shall for all purposes be deemed and taken to be general rules and orders of the High Court of Chancery. parliament should have actually sat thirty-six days after such rules, orders, and regulations should have been laid before such house of parliament, resolve that the whole or any part of such rules, orders, or regulations ought not to continue in force, in such case the whole, or such part thereof as should be so included in such resolution, should from and after such 3. Recited act in part repealed; and after resolution cease to be binding and obligatory the removal of the patentee of the subpœna office on the said court; and it was thereby also pro- duties of that office to be discharged and fees vided, that no such rule, order, or regulation received by clerks of records and writs. Appli as aforesaid should by virtue of the said act be cation of the fees. Lord Chancellor may fix of the like force and effect as if the provisions an earlier time for transferring the duties. therein contained had been expressly made by And whereas by another act passed in the parliament, unless the same should be ex- 3 & 4 W. 4, (c. 94,) intituled "An act for the pressed to be made in pursuance of the said Regulation of the Proceedings and Practice of act and of the now-reciting act; and that every certain offices of the High Court of Chancery such rule, order, or regulation so expressed to in England," it was enacted, that from and be made in pursuance of the said act and of the after the death, resignation, or removal from now-reciting act, which should not be laid his office of the present patentee of the subbefore both houses of parliament within the poena office all the duties of such office should time by the said recited act limited for that be performed by the clerk of the affidavits, purpose, should from and after the expiration who should thereupon receive and account for, of such time be absolutely void and of no in manner thereinafter mentioned, all the fees effect: And whereas an act was passed in the then receivable by the said patentee: And 5 Vict. (c. 5,) intituled "An act to make further whereas since the passing of the last-mentioned provision for the Administration of Justice," act, four clerks of records and writs have been under the authority of which two additional appointed, by whom the business of issuing Vice-Chancellors have been appointed; and it writs on the equity side of the Court of Chanwas thereby enacted, that from and after the cery, other than such writs as are issuable by appointment of the Vice-Chancellors, under the patentee of the subpoena office, is now disthe said now-reciting act, it should be lawful charged: And whereas it is expedient that the for the Lord Chancellor, with the advice or duties of the patentee of the subpoena office consent of the Master of the Rolls and Vice- should be performed and the fees payable to Chancellors for the time being, or any two of him should be received by the said clerks of them, and he was thereby authorised and em- records and writs; be it therefore enacted, powered to do all such acts, and to make and That so much of the said act of the fourth year issue all such rules and orders, as by any act of the reign of his said late Majesty as provides or acts of parliament then in force the Lord for the execution of the duties and the receipt Chancellor, with the advice or consent of the of the fees of the subpoena office by the clerk Master of the Rolls and the Vice-Chancellor of the affidavits, shall be and the same is for the time being, or one of them, was em- hereby repealed; and that after the death, powered to do, make, or issue: And whereas resignation, or removal from his office of the rules, orders, or regulations have from time to present patentee of the subpoena office the said time been made in pursuance of the said two clerks of records and writs, or any of them, first-recited acts, but it is expedient to extend shall, in place and instead of the said clerk of the time limited by the said first-recited act for the affidavits, perform all the duties of the the making thereof in manner hereinafter men- subpoena office, and shall receive all the fees tioned: Be it therefore enacted, by the Queen's now receivable by the said patentee of that most excellent Majesty, by and with the ad- office, and shall pay such parts thereof as the vice and consent of the Lords spiritual and said patentee is now by the said last-mentioned temporal, and Commons, in this present par- act required to pay to the several officers liament assembled, and by the authority of the same, 1. The term of five years, within which certain rules, orders, and regulations were directed by the first-recited act to be made, extended to 10 years. That the term of five years, which under and by virtue of the said first-recited act now stands limited as the time within which any rules, orders, or regulations thereby or by the said two other acts authorised and required to be made must be so made, shall be and the same is hereby extended to ten years from the passing of the said first-recited act, as if such term of ten years had been originally contained in that act. at such times named in that act for that purpose, and shall New Statutes Effecting Alterations in the Law. 335. earlier time for transferring the execution of Westminster, provided such signature be the duties of the subpoena office to the clerks attached or appended to any decree, order, of records and writs as he shall think fit. certificate, or other judicial or official docu4. And be it enacted, That this act may be ment. amended or repealed in the present session of parliament. ADMISSION OF DOCUMENTARY EVIDENCE. 8 & 9 VICT. c. 113. An act to facilitate the Admission in Evidence - 3. Copies of private acts, printed by Queen's printer, journals of parliament, and proclamations, admissible as evidence. - And be it enacted, That all copies of private and local and personal acts of parliament not public acts, if purporting to be printed by the Queen's printers, and all copies of the of certain official and other Documents. journals of either house of parliament, and of [8th August, 1845.] royal proclamations, purporting to be printed by the printers to the crown or by the printers to either house of parliament, or by any or either of them, shall be admitted as evidence thereof by all courts, judges, justices, and others, without any proof being given that such copies were so printed. Certain documents to be received in evidence without proof of seal or signature, &c. of person signing the same. Whereas it is provided by many statutes that various certificates, official and public documents, documents and proceedings of corporations and of joint stock and other com- 4. Persons forging seal, stamp, or signature panies, and certified copies of documents, bye of certain documents, or printing any private laws, entries in registers and other books, shall act with false purport, guilty of felony. be receivable in evidence of certain particulars - Provided always, and be it enacted, That in courts of justice, provided they be respectively if any person shall forge the seal, stamp, or authenticated in the manner prescribed by such signature of any such .certificate, official or statutes: And whereas the beneficial effect of public document, or document or proceeding these provisions has been found by experience of any corporation or joint stock or other comto be greatly diminished by the difficulty of pany, or of any certified copy of any document, proving that the said documents are genuine; bye law, entry in any register or other book, and it is expedient to facilitate the admission or other proceeding as aforesaid, or shall tender in evidence of such and the like documents: in evidence any such certificate, official or Be it therefore enacted by the Queen's most public document, or document or proceeding excellent Majesty, by and with the advice and of any corporation or joint stock or other comconsent of the Lords spiritual and temporal, pany, or any certified copy of any document, and Commons, in this present parliament bye law, entry in any register or other book, or assembled, and by the authority of the same, of any other proceeding, with a false or coun1. That whenever by any act now in force or terfeit seal, stamp, or signature thereto, knowhereafter to be in force any certificate, official ing the same to be false or counterfeit, whether or public document, or document or proceed- such seal, stamp, or signature be those of or ing of any corporation or joint stock or other relating to any corporation or company already company, or any certified copy of any docu- established, or to any corporation or company ment, bye law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any court of justice, or before any legal tribunal, or either house of parliament, or any committee of either house, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been to be hereafter established, or if any person shall forge the signature of any such judge as aforesaid to any order, decree, certificate, or other judicial or official document, or shall tender in evidence any order, decree, certificate, or other judicial or official document with a false or counterfeit signature of any such judge as aforesaid thereto, knowing the same to be false or counterfeit, or if any person shall print any copy of any private act or of the journals of either house of parliament, which copy shall falsely purport to have been printed by the printers to the crown, or by the printers to either house of parliament, or by any or either of them, or if any person shall tender in evidence any such copy, knowing that the same was not printed by the person or persons by whom it so purports to have been printed, every such person shall be guilty of felony, and 2. Courts, &c. to take judicial notice of shall upon conviction be liable to transportation signature of equity or common law judges, &c. for seven years, or to imprisonment for any And be it enacted, That all courts, judges, term not more than three nor less than one justices, masters in chancery, masters of courts, year, with hard labour: Provided also, that commissioners judicially acting, and other whenever any such document as before menjudicial officers shall henceforth take judicial tioned shall have been received in evidence by notice of the signature of any of the equity or virtue of this act, the court, judge, commiscommon law judges of the superior courts at sioner, or other person officiating judicially received in evidence. |