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and the House of Lords is to continue to hear Scotch appeals; while English suitors are to be stopped short in the High Court of Appeal. Mr. Vernon Harcourt once announced that the House of Commons would sanction no measure of judiciary reform which does not extinguish the appellate jurisdiction of the House of Lords and the Privy Council; and probably the Lord Chancellor has left these anomalies in the judicial system in order that Mr. Vernon Harcourt may have the glory of putting them right. It was however judicious, even if Mr. Vernon Harcourt had not existed, to leave the House of Lords some shred of their judicial power, else it is possible that the Bill might never reach the House of Commons.
The reforms in procedure in the distribution of legal time and in the circuit system are less extensive than was expected, or than was proposed in Lord Hatherley's Bill. But it may be said that the intention of the Bill is, or was, that the details should be filled in by the rules to be contained in the schedule. As, however, the political events that have occurred since this notice of the Bill was written makes its passing this year improbable, we refrain from further analysis of its provisions.
Notice of Appearance in the Sheriff Court.-Our last number contained a report of a decision by Sheriff Macleod Smith, at Elgin, upon this disputed point, which appears to put the matter upon a just and reasonable footing. Mr. Dove Wilson says (p. 61), “It is not certain whether a notice of appearance can be received after the expiry of the sixth day. The question cannot arise if decree have been taken in absence, for the defender proceeds in that case by way of reponing note. But where decree has not been pronounced, the defender cannot well ask to be reponed; and it has not been left quite clear what step is open to him. The practice varies. In some courts the defender is not allowed to appear on any terms in the interval between the expiry of the sixth day after citation and the time when it may please the pursuer to move for decree as in absence (Corless v. Maver, 1866, Sc. Law Mag. 68). In other courts the defr. is allowed to appear at any time after expiry of the six days before decree in absence is actually pronounced on obtaining special leave from the Sheriff, which is granted on such conditions as to the expenses which the late appearance may have occasioned, as may be thought right (Steven v. Carnegie, 14 July 1865, Sc. Law Mag. 115). The latter appears the preferable course. It is a waste of time and expense to insist upon the necessity of having a decree pronounced in order that it may immediately be recalled. Of course, if the Legislature have positively required such an absurdity, the courts must submit: but there does not seem to be any such necessity. The words of the second section of the Act 1853, which are thought to require it, deal with what the Sheriff is to do if appearance is not entered within the six days, but they do not say that the Sheriff must pronounce decree in absence. All that they
say is that he may, which leaves it clear that he also may not, and may therefore follow the other course, which is certainly more consistent with the ends of justice. This course is also more consistent with the practice before 1853." The view taken by Mr. Wilson appears to us to be so conclusive that no diversity of practice ought to exist: and being now confirmed by the deliberate and well-reasoned judgment of Sheriff Macleod Smith, we venture to hope that no further question will be raised on the point.
The Rights of Relations in a Dead Body.—In the case of Pierce v. Proprietors of Swan Point Cemetery and Metcalf, the Supreme Court of Rhode Island lately gave an interesting and learned judgment on this subject, which we shall be happy to communicate to any of our readers interested on the subject. The judgment was delivered by Mr. Justice Potter, in a question between a widow. and a child of a deceased person, the latter of whom had removed his body from the cemetery, in which it had been buried. It was held, that while a dead body is not property in the strict sense of the old common law, it is a sort of quasi property, and the relations have rights which the courts will protect; that it is in the nature of a custody or trust, which a court of equity will regulate; and that it would be discreditable in any system of law not to provide a remedy in such a case. The learned Judge, in commenting upon the laws of various countries relating to the burial of the dead, said, that by the Canon law which prevailed in such matters over so large a part of Europe, a wife was to be buried with her last husband, if more than one. The opinion contains citations to the statutes, and opinions in England and America upon the questions involved. The result was that the Court ordered the body to be restored to the burial lot in which it had originally been buried with the consent of all the relatives, including the respondent, his widow, and from which she had removed it at her own hand.
Sic utere tuo ut alienum non lædas.-Our very learned and able contemporary, the Albany Law Journal, lately observed that in several recent cases this maxim had been considered; and we quote its remarks, which will suggest to our readers parallel cases in our own and English Courts. "Jones v. Wagner, 5 Amer. Rep. 385 (66 Penn. St. 429), was a case in which by partition the surface of land was severed from the underlying mineral, and the parts were allotted to the heirs without any limitation as to removal. The court held that the upper and underground estates being several, they were governed by the same maxim which limits the use of property, otherwise situated, viz, Sic utere tuo, etc., and that the owner of the mineral could not remove it without leaving sufficient support for the surface. In Doupe v. Gesnir, 45 N. Y. 119 (to appear in 6 Am. Rep.), it appeared that plaintiff, a tenant, occupied the lower part of a building, and another tenant the upper part. By fire the roof was consumed and the upper portion rendered
untenable, whereby the possession of plaintiff was disturbed and his property injured by leakage from above. The landlord, the defendant, commenced to repair the roof, but, as plaintiff alleged, the repairs were unreasonably delayed. It was not claimed that if the plaintiff bad been lessee of the entire building the landlord would have been bound to repair, there being no covenant on his part so to do. But it was claimed that the duty arose from the fact that plaintiff's premises were rendered untenable by reason of damage to a part of the building not occupied by him, and that the landlord, as owner of the part of the building not occupied by the plaintiff, was bound, according to the maxim sic utere tuo, etc., to keep his own part of the premises in such condition as to prevent injury to plaintiff's premises. But the court held, that in the absence of contract and without reference to the special relations of the parties, there was no principle upon which a man can be held bound to erect any structure for the purpose of protecting his neighbour from the inclemency of the weather, or to replace any structure upon his own premises which has been destroyed, because, while it existed, it afforded such protection. In First National Bank of Greenfield v. Marrietta and Cincinnati R. R. Co., 5 Am. Rep. (20 Ohio St. 259), it appeared that plaintiff's agent was entrusted with 20,000 dols in currency, to carry from Marrietta to Cincinnati, and while the agent was a passenger on the defendant company's railroad with the money on his person an accident occurred, the car in which the agent was took fire and the money was destroyed. In an action by plaintiff to recover for the destruction of the money, one of the main grounds of the prosecution was that plaintiff's property being at the time of its destruction where it was lawfully, and being without any fault of plaintiff, destroyed by the negligence of the defendant in the management of his own property, a right of action accrues for the damage, by virtue of the maxim, sic utere tuo, etc. But the court held that the principle embodied in the maxim was subordinate to the relation of carrier and passenger subsisting between the parties, and that plaintiff could not recover under the maxim, the defendant not being charged with the wilful destruction of the money nor with such gross negligence as would approximate to wantonness."
Payment of Law Court Fees by means of Stamps.-The Edinburgh Gazette of March 25 contains the rules which have been prepared by the Commissioners of Her Majesty's Treasury, with concurrence of the Court of Session, for regulating the use of stamps in the payment of fees in the offices of the Court of Session, Court of Teinds, and Court of Justiciary--a system which is to come into operation on the 1st May, under the provisions of the Courts of Law Fees (Scotland) Act, 1868. The following are the rules :
1. The stamps to be used in payment of the fees payable in the offices or to the officers aforesaid shall be adhesive stamps.
2. Such stamps shall be affixed at the expense of the parties liable to pay the fees, on or to the paper, vellum, or parchment on which the proceedings in respect whereof such fees are payable are written, printed, or which may be otherwise used in reference to such proceedings.
3. Where any of such fees are payable in respect of any step of process, or any matter or thing to be done by any of the officers, or in any of the offices aforesaid, and it shall not have been customary to use any written or printed document or paper in reference to such step of process, or matter, or thing whereon the stamp could be stamped or affixed, the party or his agent desiring to proceed in such process, or requiring such matter or thing to be done or permitted to be done, shall make application by a short note or memorandum in writing or print, and a stamp denoting the amount of the fee so payable shall be stamped or affixed to such note.
4. Every officer who shall receive any document to which a stamp shall have been affixed pursuant to these rules, shall immediately on receipt of such document cancel the stamp or stamps thereon, by obliterating the same by means of a hand stamp and printing ink showing the date of the cancellation, or by writing thereon the initial letters of the name of the officer or clerk by whom the same is hereby directed to be cancelled, and the date of such cancellation; and all adhesive stamps affixed to any paper or document presented to, or kept in the possession of any of the officers of the aforesaid courts, or of the clerks of the Judges, shall, before the act is done or permitted to be done in respect of which the fee denoted by such stamp is payable, be effectually cancelled by some officer of the courts, or by one of the said clerks of the Judges in the manner aforesaid; and no such paper or document shall be marked by the clerk of process, or delivered out until the stamp thereon shall have been so cancelled or defaced; and it shall be the duty of all officers of court before whom the proceedings to which such stamps ought to be affixed, as well as the agents in the proceedings, to see that the proper stamps are affixed and cancelled.
5. When through mistake the stamp upon any paper or document has been cancelled as aforesaid without having been legitimately used, it shall be competent to the Board of Inland Revenue, upon the presentation of a certificate by the Queen's and Lord Treasurer's Remembrancer, that such stamp, also produced, is a fit subject for allowance, to allow the amount thereof.
6. The several officers by whom stamps may be cancelled as aforesaid shall, on or before the 30th day of April in each year, make out an account of all stamps cancelled in their respective offices, and shall render such account to the Queen's and Lord Treasurer's Remembrancer for transmission to the Lords Commissioners of Her Majesty's Treasury; and the first of these accounts shall be for the year ending 31st March 1874, and so forth.
7. Any person appointed by the Lords Commissioners of Her Majesty's Treasury or the Board of Inland Revenue for that purpose, shall have power and be permitted to inspect the papers in any proceedings in the foresaid courts or the offices thereof, in order to ascertain that stamps have been duly affixed and cancelled.
8. The Board of Inland Revenue may authorize distributors of stamps, and persons authorized to sell stamps in Scotland, to sell the stamps above referred
Lawyers in Parliament.-Lord Cairns, it must be said, is a real leader on the Tory side. He has added a distinct political reputation to his legal one; from a Lord Chancellor he has become a statesman. By an individual act he could make a crisis in his own party. No other lawyer now in Parliament, in either House, could do that. Lord Cairns is the only one who has any decisive influence over party arrangements. But even he is not a Lyndhurst. Lord Selborne only a few years back was not without a definite, if a somewhat narrow, influence in Liberal politics, but he aspired to something better. In that matter of the Irish Church he attained such a height of conscientiousness, and became so admirable morally, that it would be running the risk of degrading a lofty ideal to expect him to do anything particular in the way of party politics. His lordship ought by some arrangement to be kept apart from them, for legal reforms, compelling all sections into unanimity by personal admiration of him. As an ornament of an administration, Lord Selborne for the time it
lasted was unapproachable, but for pell-mell party work he is a trifle too celestial. To think of him as an ordinary political lawyer is scarcely possible. Nothing could be more honourable to the Liberals than that in Lords Hatherley and Selborne they should have produced in succession two Chancellors whom it would be a very easy mistake to regard as archbishops, and respecting whom it has more than once been the bounden duty of party men on their own side to wish they were. In Lord Westbury we had a man of a very different style, but him we lost for other reasons. Instead of statesmanship and renewals of the Chancellorship, his lordship is usefully and not unprofitably turning his attention to public arbitration. In fact, although we have an abounding number of law lords in the Upper House, if we except Lord Cairns, and also Lord Selborne as being much better, none of them have developed into statesmen of anything like the historic type and magnitude. In the Commons this abatement of the political importance of lawyers is at least equally striking. Passing by Mr. Vernon Harcourt, what English lawyer is there in the House whose political opinions are of any considerable interest to the general public? Did anybody, either in Parliament or out of it, ever show anxiety to learn the views of Sir John Coleridge upon any question, so that they might frame their own accordingly? It would be unfair to repeat the question in the case of Sir George Jessel. He was made Solicitor-General before he had time to attempt a political career. Shortly he may be at liberty for the effort. The Tory side, so far as English lawyers are concerned, are no better off than the Liberals. Both sides would have been a great deal better if only they could have changed Mr. Serjeant Dease and Dr. Ball into Englishmen ; but those gentlemen, unluckily, were of another nationality which refuses to be mistaken for English. Turning to Sir J. Karslake and Sir R. Baggallay, it is not unfair to say in their presence that a dashing political career is no longer absolutely needful for legal promotion. There is Mr. Henry James, of whom something is expected, but he is as yet on his trial as a politician. Lawyers used to have to win their places by smart speaking in the House, first making themselves obnoxious and then desirable to their respective parties. It is this traditional practice Mr. Harcourt set himself to try and revive, for in the mild and inefficient hands of Mr. Denman it had fallen almost into practical desuetude. But lawyers not only used to have to speak their way to their places, but they had to keep them by speaking. They were specially relied upon in every great debate. During the last two Administrations the speaking of the law officers has systematically dwindled; great debates have closed in which they have not opened their mouths. There is a partial explanation of this, especially under Mr. Gladstone's Administration- Mr. Gladstone never was aware that he needed speaking-help from anybody. Mr. Disraeli on great occasions does not want much assistance. Such exceptional powers of debating in the chiefs has been against professional talkers. It has been as if the clients could address the court and jury better than the learned gentlemen holding the briefs for them. And, in addition, there can be no doubt that the general speaking capability of the House of Commons has improved both in quantity, and in a mediocre kind of quality, of late years. There is a host of men in it as self-confident and as fluent as average barristers. But are the lawyers to succumb to this? What they ought to do is to find opportunities for speaking, and to speak more brilliantly than laymen. At this rate they will become legal advisers of the Government and nothing more. But if the lawyers in Parliament have somehow decayed in political importance, they never stood higher nor so high in the moral estimation of the country. A feeling is abroad that they are going to reform the Profession, and there are reasons for believing that the public hopefully looks on this in the light of a partial self-suppression. It is consequently received with evident gratitude. Unwonted examples of abnegation have been shown. Lord Chancellors have proposed smaller salaries for junior judges. The late or present Attorney-General, whichever is the right description, patriotically agreed to a plan by which his successor will not get a large number of fees which he himself had the pain of putting into his pocket. In these