State and Prospects of the Second Branch of the Profession.-New Statutes. London and Provincial Attorneys. It was ment will, no doubt, be again urged forone of the objects of the Metropolitan and ward.

5

Provincial Law Association to counteract We must not let this opportunity pass of this impression, and to a great extent it noticing the intention of several influential has succeeded. This important means of solicitors to found a Benevolent Institution strength should be still further cultivated. for the relief of aged and indigent Attorneys. We should like to see a few, at least, of the The prospectus will shortly be submitted to leading country Solicitors in different parts the Profession, under the auspices of the of the empire, associated with the London Incorporated Law Society; and doubtless, members in the Council of the Incorporated there is occasion more than ever for the Law Society, so that they might on import- wealthy and charitable to come forward in ant occasions have a voice in the delibera- behalf of their unfortunate brethren, many tions of the governing body, either by per- of whom have been depressed or ruined by sonal attendance or written communication. the changes effected in recent times in the We have some reason to believe that this various departments of legal practice. suggestion will be considered when a fit opportunity occurs.

We have but briefly opened some of these important topics, and invite our corWe would here note also the necessity respondents to communicate their sentiof communications being made to the proper ments thereon and the valuable information quarter, by Solicitors throughout the king- they possess. dom, of instances, on the one hand, of the

honour and integrity of members of the NEW STATUTES EFFECTING ALTEProfession, and on the other, of explanations refuting the complaints which are brought forward against them.

RATIONS IN THE LAW.

EPISCOPAL AND CAPITULAR ESTATES' MA

Another means of improving the Profession, and keeping pace with the continual progress of other classes of the community, is to be found in extending the Education of Lawyers to subjects of classical literature and the useful sciences, in addition to a sound legal education. Connected with this view, and the work of uniting and strengthening the second branch of the Profession, we would again advert to a subject recently submitted to our readers, namely, the union of the ancient Inns of Chancery with the Incorporated Law Society for the purpose of promoting the general improvement of the Attorneys and Solicitors, and especially of providing increased means both for the general and legal education of Articled Clerks and facilitating the discharge of the duties of the Practitioners. We understand that suggestions are under consideration with reference to this important means of clesiastical Commissioners; s. 9. improvement, having regard especially to

NAGEMENT, 1854.

17 & 18 VICT. c. 116.

14 & 15 Vict. c. 104, continued; s. 1. On sale or exchange of part of lands, &c. comprised in any lease, rent may be apportioned; s. 2.

Trustees of will or settlement may raise money for enfranchisement; s. 3.

Arbitrators may be named; s. 4. How copyholder's right of renewal to be ascertained; s. 5.

Provision relating to apportionment of proceeds of sales; s. 6.

Like provision in respect of purchases and exchanges; s. 7.

Provisions respecting local claim on tithes; s. 8.

References to arbitration to determine value of lands vested or to be vested in Ec

Ecclesiastical Commissioners to state like

the favourable opportunity afforded" of particulars as Church Estate Commissionbringing the subject under the notice of ers; s. 10. the Commissioners of Inquiry into the Inns of Court and Chancery.

Basis of report of 1850 may be taken;

s. 11.

How computations on the duration of lives are to be calculated; s. 12, Interpretation; s. 13.

In considering the importance of increasing the facilities for the despatch of the business, in these days of shortening distance and saving time, we may notice the proposed erection of new Courts and Offices in the neighbourhood of the Inns of Court of the Act:— and Chancery, in the very centre of the

The following are the Title and Sections

An act to continue and amend an Act to facimetropolis, instead of the south-west corner litate the Management and Improvement of

of Westminster. This valuable improve

Episcopal and Capitular Estates in England. [11th August, 1854.]

6

New Statutes effecting Alterations in the Law.

Whereas the Act of the 14 & 15 Vict. c. 104, was limited to three years from the end of the then Session of Parliament, and it is expedient to continue and amend the same Act: Be it therefore enacted, as follows:

1. The said Act, as amended by this Act, shall continue in force for two years from the end of the present Session of Parliament.

2. The powers and provisions contained in the second section of the said Act shall extend to all cases in which, on the sale, exchange, or enfranchisement, under the authority of the said Act or of this Act, of a part only of any lands or other hereditaments comprised in any lease or copy of Court Roll, the church estates Commissioners may deem it expedient to apportion the rent reserved by or payable under the lease or grant to the ecclesiastical corporation by whom such lease or grant may have been made.

enactments, as upon a reference made by consent upon a rule of Court or Judge's order: provided always, that it shall be lawful for the same parties to appoint one and the same person to act as sole arbitrator; and in such case the valuations, acts, and award of such arbitrator shall have the same effect as valuations, acts, and award of the arbitrators and umpire under the provisions herein contained and in every case the costs of such arbitration and award shall be in the discretion of the said arbitrators or umpire, as the case may be.

5. Notwithstanding anything to the contrary contained in or to be implied from the said recited Act, or in the " Copyhold Act, 1852," or in an Act of the 16 & 17 Vict., intituled "An Act to explain and amend the Copyhold Acts," whenever a right of renewal of any lands held for a life or lives or for years by copy of Court Roll from or under any ecclesiastical corporation shall be disputed by such ecclesiastical corporation or by the Church Esstates' Commissioners, or whenever the person or persons claiming to be interested in any such lands shall be desirous of having the right of renewal decided by a competent tribunal, then and in either of the said cases it shall be lawful for such person or persons to cause an action to be brought in any of her Majesty's Superior Courts of Law at Westminster, in which action such person or persons shall be the plaintiff or plaintiffs, and the Church Estates' Commissioners, together with the ecclesiastical corporation from or under whom such copy hold or customary lands shall be held, shall be the defendants, and in which action the plaintiff or plaintiffs shall deliver a feigned

3. In any case in which the legal estate and interest under any lease or grant made by any such ecclesiastical corporation may be vested in any person or persons in trust for any other person or persons, according to the limitations of any will or settlement, where such will or settlement contains a direction or power to such trustees to raise money for the purpose of procuring a renewal of such lease or grant, it shall be lawful for the same trustees to raise money for the purpose of purchasing the reversion of or otherwise enfranchising the property comprised in such lease or grant, in the same manner, and subject to the same conditions, mutatis mutandis, so far as the same may be applicable to the case, as may be specified in such will or settlement with reference to the raising of money for the purpose of renew-issue whereby such disputed right may be tried, ing such lease or grant.

and shall proceed to a trial at law of such issue 4. In every case where a treaty shall have at the Sittings after the Term or at the assizes been entered into, under the provisions of this then next or next but one after such action Act or of the said recited Act, for the sale, shall have been commenced, to be holden for purchase, or exchange of any episcopal or ca- the county within which the lands, or the pitular estate in England, or of any interest in greater part thereof, are situated, with liberty, such estate, it shall be lawful, by the consent nevertheless, for the Court in which the same of both parties to such treaty, and with the shall have been commenced, or any judge of any approbation of the Church Estates' Commis- one of her Majesty's Courts of Law at Westsioners, to refer to arbitration the finding of minster, to extend the time for going to trial the annual value of such estate, and of the therein, or to direct the trial to be in another value of the fee simple thereof, or either of such county, if it shall seem fit to such Court or values, subject to the exceptions and reserva- Judge so to do, and the defendants in any such tions, if any, to be excepted and reserved there-action shall enter an appearance thereto, and out, and that such finding shall be adopted in accept such issue; but in case the parties shall computing the terms of such sale, purchase, or differ as to the form of such issue, or in case exchange, regard being had, in the final settle- the defendants shall fail to enter such appearment of such terms in every such case, to the ance or accept such issue, then the same shall just and reasonable claims of the present be settled under the direction of the Court in holders of land under lease or otherwise, which the action shall be brought, or by any arising from the long-continued practice of Judge of one of her Majesty's Courts of Law renewal, and that in every such case one ar- at Westminster, and the plaintiff or plaintiffs bitrator shall be appointed by the Church may proceed thereon in like manner as if the Estates' Commissioners, and one by the lessee defendants had appeared and accepted such or intending purchaser, and the two arbitra- issue; and the parties in such action shall protors so appointed shall, before they proceed in duce to each other, their respective attorneys the matter referred to them, appoint an umpire or counsel, at such time as any Judge may or third arbitrator, and the proceedings upon order, before trial, and also to the Court and such arbitration shall be conducted in like jury, upon the trial of any such issue, all manner, and subject to the same rules and books, deeds, court rolls, papers, and writings,

New Stututes effecting Alterations in the Law.

7

terriers, maps, plans, and surveys, relating to apportionment of moneys between the Church the matters in issue, in their respective custody Estates' Commissioners and ecclesiastical coror power; and it shall be lawful for the Judge porations, and to the application thereof, shall by whom any such action shall be tried, if he be construed to relate to all lands and other shall think fit, to direct the jury to find a ver- hereditaments, and to every estate or interest dict, subject to the opinion of the Court upon therein, which may have been or which may be a special case; and the verdict which shall be acquired by any ecclesiastical corporation by given in any such action, or the judgment of purchase or exchange under the provisions of the Court upon the case subject to which the the said recited Act, so as to authorise the lastsame may be given, shall be final and binding mentioned Commissioners to require the payupon all parties thereto, unless the Court ment to them by the ecclesiastical corporation wherein such action shall be brought shall set primarily interested in such lands or hereditaaside such verdict, and order a new trial to ments of a sum of money equivalent to the surbe had therein, which it shall be lawful for the plus share thereof. said Court to do if it shall see fit: Provided always, that after such verdict given, and not set aside by the Court, or after such decision of the Court, the said ecclesiastical corporation and the Church Estates' Commissioners shall be bound by such verdict or decision; and the costs of every action, and of obtaining a decision thereon, shall be in the discretion of the Court in or by which the same shall be decided, which may order the same to be taxed by the proper officer of the Court, and the like execution may be had for the same as if such costs had been recovered upon a judgment of record of the said Court: provided also, that in every case in which the costs or any part of the costs of or incident to any action to be brought under the provisions of this Act shall become payable by the defendant in such action, it shall be lawful for the Church Estates' Commissioners, and they are hereby required, to pay such costs out of any surplus moneys coming or which have come or may come to their hands in repect of the estates of such corporation, under the provisions of the said recited Act or this Act.

8. The proviso contained in the first section of the said recited Act, with reference to the sale or exchange of tithes or tithe rentcharges, or land or hereditaments allotted or assigned in lieu of tithes, shall be and the same is hereby repealed; and all the moneys so paid or to be paid over to the Ecclesiastical Commissioners for England under the foregoing provision, which may have been produced by the sale, purchase, or exchange of tithes or tithe rentcharges, or land or hereditaments assigned or allotted in lieu of tithes, which formed part of the endowment of any ecclesiastical corporation prior to the passing of the said Act, shall be subject to the provisions relating to local claims which are contained in the 67th section of the Act passed in the 3 & 4 Vict. c. 113; and in every case in which any money shall as aforesaid be paid over to the Ecclesiastical Commissioners for England in respect of surplus, the last-mentioned Commissioners shall, in the annual report to be next thereafter made by them to the Secretary of State, specify the period at which, at the time of the settlement of the terms of the sale, purchase, or exchange in respect of which such payment was made, it was estimated that any and every then subsisting lease or grant of the tithes or land thereby dealt with would have expired.

6. The provisions contained in the sixth section of the said Act, relative to the investment and application of the moneys which are to be paid into the Bank of England as thereby directed, shall be subject to the following pro- 9. In all dealings between the Ecclesiastical visions; that is to say, the provisions contained Commissioners for England as to lands now in the eighth section of the said Act which di- vested or which shall hereafter become vested rect the Church Estates' Commissioners to re- in them and the holders of such lands, it shall quire certain payments to be made to them by be lawful for the parties to refer to arbitration or on behalf of persons being ecclesiastical the finding of the annual value and of the value corporations sole or members of the ecclesi- of the fee simple thereof, subject to the excepastical corporation aggregate shall be extended tions and reservations, if any to be excepted so as to authorise and require the same Com- and reserved thereout, and such finding shall missioners to apportion every sum of money be adopted in computing the terms of the sale, paid or to be paid into the Bank of England purchase, or exchange of such lands or of any under the provisions of the said Act or of this interest therein, regard being had in the final Act so as to set apart for the permanent en- settlement of such terms in every such case to dowment of such corporation sole or aggregate the just and reasonable claims of such holders a share of such sum of money sufficient to se- of land under lease or otherwise arising from cure to such corporation a permanent net income the long-continued practice of renewal, and the equal to that which, if the said Act or this Act said last-mentioned parties shall for the purhad not been passed, would have been received pose of such arbitration be subject to the proby such corporation from the property by the visions herein before contained as to the apenfranchisement whereof such money was pro-pointment of arbitratiors and the payment of duced; and the Church Estates' Commissioners shall pay over the remainder of such sum of money to the common fund of the Ecclesiastical Commissioners for England.

7. The foregoing provisions relative to the

costs.

10. The Ecclesiastical Commissioners for England shall with reference to their dealings with lands vested in them state in their reports the like particulars which the Church Estates

8

Act.

New Statutes.-Review: Kerr's Common Law Procedure Act, 1854.

Commissioners are by the said recited Act re-improvements in the Rules of Evidence, quired to state in their reports with reference which are comprised in sections 19 to 32 to lands dealt with by them under the same inclusive, and they are declared applicable 11. In computing the due regard to be paid Kerr, in his introduction to the Act, states to all our Courts of civil jurisdiction. Mr. to the just and reasonable claims of the present holders of lands under lease or otherwise aris-the alterations which have been made of ing from the long continued practice of re- late years, and explains the scope and newal, the basis of compensation may, at the object of the further changes effected by discretion and with the approval of the Church the present Act. He notices, in particular, Estates' Commissioners, be that laid down by the admissibility of witnesses interested in the Episcopal and Capitular Revenues' Com- the result of the action, and the mode of missioners in their report of 1850, or according their examination; the power of receiving the affirmations of witnesses instead of 12. In all computations in any way depend- oaths; the right of discrediting a party's ent on the duration of lives, the expectation of own witness; the facilities in proving statelife shall not be calculated according to the ments contradictory of adverse witnesses; tables commonly known as the Northampton the cross-examination of witnesses regarding Tables, nor upon tables less favourable to the previous statements in writing; the proof expection of life than the life tables which are appended to the Twelfth Annual Report of the Registrar-General of Births, Deaths, and Marriages in England, nor than any tables which may be from time to time issued by the same authority.

to the recommendations laid down in the Lords' report on the same subject in 1851.

13. The provisions contained it the 11th section of the said Act with reference to the interpretation of the words and expressions therein specified shall apply to the same words and expressions whenever they occur in this Act, and the said Act and this Act shall be read and construed together as one Act.

NOTICES OF NEW BOOKS.

The Common Law Procedure Act, 1854, (17 & 18 Vict. c. 125,) with Practical Notes: an Introduction, explaining the Nature and Extent of the Equitable Juris diction conferred on the Superior Courts of Common Law; the Changes effected in the Law of Evidence; and the Alterations in Practice introduced by the Statute: and a Copious Index. By ROBERT MALCOLM KERR, Barrister-atLaw. London: Butterworths. 1854. Pp. 124; lxxxvii.

We noticed in our Number for the 21st October, the greater part of the amend ments in the law effected by the Common Law Procedure Act of last Session, as expounded in Mr. Malcolm Kerr's valuable work, namely:-Specific Performance of Contracts; Injunctions; Discovery; Equitable Defences; Compulsory Arbitrations; and Proceedings on and after Trial. We have now to consider the alterations that have taken place in the Law of Evidence,in the power of attaching Debts in Execution-in the Summary Proceedings of the Court, and the Amendments in Procedure. The new Act has made several important

of the previous conviction of a witness of some offence implying want of probity or veracity; dispensing with the evidence of attesting witnesses; the comparison of disputed handwriting; and the privilege of paying into Court any deficient stamp duty with the penalty at the trial.

amendments in the administration of jusThese are comprehensive and valuable tice in the Superior Courts, and cannot fail, we trust, in restoring to those tribunals that respect which was partly impaired by the delay and expense which formerly existed.

The enactments on these subjects are, in substance, as follow :-As to the

LAW OF EVIDENCE.

If any

1. Affirmations in lieu of oaths. person called as a witness now refuses to be sworn from alleged conscientious motives, the Judge may, upon being satisfied of the sincerity of the objection, permit the witness, instead of being sworn, to make a solemn athrmation or declaration; which, it is enacted, shall be of the same force and effect as if the witness had taken an oath in the usual form (s. 20).

2. Contradicting a party's own witness. A party producing a witness is not to be allowed to impeach his credit by general evidence of bad character, but he may, if the witness in the opinion of the Judge proves adverse, contradict him by other evidence, or, by leave of the Judge, prove that he has made at other times

a statement inconsistent with his present testimony. But before such last-mentioned proof can be given, the circumstances of the statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement (s. 22).

3. Proof of contradictory statements.-If a witness, upon cross-examination as to a former sent testimony, does not distinctly admit that statement by him, inconsistent with his prehe has made such statement, proof may be

Review: Kerr's Common Law Procedure Act, 1854.

5

given that he did in fact make it. But before or (as the case may be) the deficiency of the such proof can be given, the circumstances of stamp duty, and the penalty required by Stathe statement, sufficient to designate the par- tute, together with the additional penalty of 17., ticular occasion, must be mentioned to him, has been paid (s. 28). and he must be asked whether or not he has made such statement (s. 23).

4. Production of contradictory statements. A witness may now be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subjectmatter of the cause, without such writing being shown to him. But if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of contradieting him (s. 24).

The Judge may also, at any time during the trial, require the production of the writing for his inspection, and make such use of it for the purposes of the trial as he thinks fit (s. 24). 5. Proof of conviction of offence.-A witness may be questioned, as he has hitherto been, as to whether he has been convicted of atry felony or misdemeanor; but if, upon being so questioned, he either denies the fact or refases to answer, the opposite party may prove such conviction (s. 25). The denial of the witness or his refusal to answer is no longer conclusive. On the contrary, it exposes his whole evidence to the imputation of being false if a conviction be proved. On the other hand, if the fact of the conviction be admitted by the witness, the examination can go no further, and the admission will afford ground for a presamption, that in other matters the witness has spoken the truth, since he has not hesitated to confess an error in his previous life.

The officer of the Court must give a receipt for the amount of the duty or deficiency which the Judge determines to be payable, and also of the penalty, and thereupon the document will be admissible in evidence, saving all just exceptions on other grounds (s. 29).

There is a class of documents which cannot be stamped after execution, even on payment of a penalty. It is thought that these instruments, if they could be stamped when the necessity arose, would not in gewithin the number of documents made adneral be stamped at all. These are not missible by the above enactment, which, it is expressly provided, is not to extend to any document which cannot now be stamped after the execution thereof (s. 29). EXECUTION BY ATTACHMENT FOR DEBTS.

A Judge may now, upon the exparte application of any judgment creditor [upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and that any other person is indebted to the judgment debtor, and is within the jurisdiction], order that all debts owing by such third person (who is called the garnishee) to the judgment debtor shall be attached to answer the judgment debt (s. 61).

The judgment creditor, or his attorney, may, however, be unable to make the affidavit necessary to obtain an order for the attachment 6. Attesting witnesses.-When the genuine- of the debts owing and accruing to the judgness of a document is not in dispute, the parties ment debtor. If so, a discovery may be obought not to be limited to any particular wit-tained from the judgment debtor of what proness to prove the execution. When the ge-perty he has capable of being thus taken in nuineness is in dispute, the party producing it execution; for any creditor, who has obtained will be sure to call the attesting witness, as his absence would tend to throw the greatest discredit on the instrument. It is, therefore, no longer necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite. Such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto (s. 26).

7. Comparison of hand-writing.-Comparison of a disputed writing with any writing proved to the satisfaction of the Judge to be genuine, may now be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness, or otherwise, of the writing in dispute (s. 27). 8. Stamp duty. - Upon the production of any document as evidence at a trial, it is now the duty of the officer of the Court, whose business it is to read such document, to call the attention of the Judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, is not to be received in evidence until the whole

a judgment in any of the Superior Courts, may apply to the Court or a Judge for, and the Court or such Judge may make, a rule or order, that the judgment debtor should be orally examined as to any and what debts are owing to him (s. 60).

dered to take place before a Master of the This preliminary examination may be orCourt, or before such other person as the Court or Judge may appoint (s. 60). The production of books and documents may also be ordered.

Upon the discovery had by such examination, which is to be conducted in the same the cause, the necessary affidavit may be made, manner as the oral examination of a party to and the order for attachment obtained.

The proceedings against the garnishee are to be as follows:

:

The order for attachment being obtained must be served on, or a notice thereof given to, the garnishee; for the service of the order or such notice thereof given in such manner as