CONTENTS OF VOLUME XLII.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, MAY 3, 1851.

TO OUR

legal profession, taken as a whole,—consci

READERS AND SUBSCRIBERS. entiously convinced that, from the noble

and learned occupant of the woolsack who lately received such a remarkable and

professional brethren to the humblest writer in the smallest office, all are alike bound to unite in increasing the value and usefulness of the profession, by maintaining its honour and character.

THE memorable and exciting incidents well-merited testimony of the respect of his connected with the opening of the Great Exhibition of the Industry of all Nations, can in few instances relieve from the performance of individual duties, and does not supersede the obligation of recalling the attention of our readers to the circumstances under which the present Volumethe forty second of a series-commences.

We must, hovever, continue to bear in mind, that all the other legal periodicals are under the control of members of the Bar, The Legal Observer, as most of our and although for the most part they deal readers have been informed, was established fairly with the attorneys and solicitors, they above twenty years since, chiefly for the pur- always (as might be expected) "stand by pose of collecting, explaining, and giving effect their order" whenever a question arises into the opinions of the members of the legal volving the immediate interests of the Bar. profession upon all matters affecting their It is but equal justice, therefore, that our ten feelings or interests. When the publica- thousand brethren of the junior branch tion was started, the profession was without should be fully and zealously represented. a representative amongst the periodical Assuring our readers, that the future press, except one quarterly Magazine. conduct of this publication will be governed Since that period, several journals, with by the same principles which have hereto somewhat analogous objects to our own, fore influenced those to whom its managehave from time to time sprung up. ment has been entrusted, and that its Many of these have disappeared, whilst columns will continue to be open for the others are still in active existence. The candid and temperate discussion of every latter fact affords pregnant proof, that the question affecting the interests of the proconception was useful and not undeserving fession, -we must urge upon our friends, of encouragement; and if, sharing in some both in town and country, the necessity of of the labours of the same field, our continuing their frequent communications contemporaries have, as we readily admit, upon the various topics of alteration or brought much energy and ability to bear amendment, whether proposed on the part upon the original design, we can afford of the profession itself, or by the large class to regard their success with feelings the of persons now incessantly engaged in urgopposite to those of jealousy or distrust. ing forward so many kinds of reform, alike It would be vain, in these days, to claim in the constitution and the practice of the any merit, or expect any indulgence on the Courts. We shall thus be the better enground of antiquity. We disclaim any such abled, from the result of large practical exidea, and only ask our readers to believe perience, to support those measures, which that we have endeavoured honestly and in the end will be beneficial both to the consistently, to the best of our judgment public and the profession. and ability, to promote the interests of the VOL. XLII. No. 1,208.

We pass now to matters involving a con

B

2 & To our Readers and Subscribers.-Amalgamation of the Courts of Law and Equity. sideration of one of the most remarkable" From this brief outline it is clear that the

projects that has hitherto been proposed in reference to the administration of justice the amalgamation of the Courts of Law and Equity, to which we must devote ase parate articles qui vigig of mit

AMALGAMATION OF THE COURTS
WOU OF LAW AND EQUITY.

ALL are aware that it has been resolved to modify, if not altogether to abolish, the

ancient

distinction between law and equity arose not from any recognition of its abstract propriety, but because the Courts of Law and the Legisof common law that expansion which the adlature had alike omitted to give to the system vance of civilization imperatively required; and it is equally clear that by the substitution of specific remedies, the nature of equitable jurisprecedent for discretion, of general rules for diction has been entirely changed from what it originally was in early times. If, then, these two jurisdictions have succeeded in working together for the promotion of substantial jus

procedure ed intice, this result must be attributed, not to cal

the Courts of Common Law. of procedure adopted in the Equity has already undergone a vision,

The mode

culation or design, but to a fortunate accident.":

་ །

Courts of The practical advantages and disadvanlimited re-tages arising from the separation of jurisand it is suggested by persons in diction are thus enumerated and contrasted; authority, that the constitution of those whether fairly or otherwise let the reader tribunals requires alteration. Beyond this, judge,

a considerable portion of the business for

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The advantages are only two-first, the merly transacted by the Courts of Law has power to preserve intact, the ancient forms of been transferred to the County Courts. It our common law; and, secondly, the superior is also proposed to endow those institutions skill attainable respectively by the judges and with an extensivé Equity jurisdiction, and practitioners in Courts of Law and Equity, in to employ them, to the exclusion of existing consequence of the division of labour. Courts in distributing the assets of bankThe principal disadvantages of the division. of law and equity are the following:rupts and insolvents. Many of these pro1. The line which separates the two jurisjects, however, will be inapplicable and dictions is so uncertain, that in many cases rendered wholly unnecessary, if the more preliminary investigation of great nicety is recomprehensive reform, sanctioned by the quired before it can be ascertained whether the Society for Promoting the Amendment of remedy should be sought in law or in equity. the Law, should meet with the approval of "2. In many cases a complete remedy canparliament. zuobba rundt genot be had without having recourse to both It appears that, under a code which Courts, and thus bringing two lawsuits instead exists in the State of New York, the principles of Law and Equity are administered by the same tribunals, and the Law Amendment Society, taking the New York system as a model, have adopted an elaborate, and, it must be admitted, an ably drawn report, in which a change greater than all that has yet been suggested in the administration of our laws, namely, the abolition of the die tinctions so long existing between Courts of Law and Equityis earnestly smended as a practical measure,

nous

f

of one.

"3. Courts of Law are compelled to decide without reference to equitable principles, and consequently to do injustice with a full ledge of the fact, and an anticipation subsequent overthrow of their judgment by the interference of a Court of Equity.eds aft

the

4. Courts of Law and Equity in many instances administer the same law, and thus a party is liable to be, twice, xexed for the name matter, and to have the judgment of a Court of in his favour rendered valueless by the decision of the Chancellor on the same Fadverse point. 5.The existence of two distinct systems of pleading and practice is of itself a great evil

6 Courts of Equity are compelled to decree that the parties themselves should carry their trouble and expense. eoque brodars orders into effect, which occasions much endless

des The report, on which this recommenda tion is founded, and to which we now propose to direct attention, is too volumito allow of out tine: printing it extenso, The subject is thus divided 1st, The causes and nature of the distinction between Law and Equity next, the practical ad-in detail the alleged mischiefs and inconAfter proceeding to consider somewhat avantage and disadvantages which flow from veniences arising from the separate adminiin detail the alleged mischiefs and inconthat distinction; and lastly, the practicability stration of Law and Equity in our Courts of band expediency of adopting some plan where

6འདུ་

that distinction can be safely abolished. Justice, the remedy, is discussed, and it is The inference drawn from a consideration supposed it can only be arrived at by adopt-196 the first division of the subject is thus ang the equitable procedure, the legal proof put by the framers of the report: beedure, or by framing new procedure.

Amalgamation of the Courts of Law and Equity-Review Tilsley's Stamp Laws. T 3

After adverting to the relative merits of tion of its merits will therefore be convenithose three plans, the decision of the Com-ently postponed until the plan is fully, mittee in favour of the latter is thus developed. If the confidence expressed by: expressed :its proposers, as to its expediency and "It is therefore the unanimous opinion of practicability, be well founded, we shall only the Committee that, excepting the administra- add, that the pigmy improvements sugtion of the estates of deceased persons which gested in various branches of the law can deemed worthy of consideration,

they think, in accordance with the report of a hardly would be way

former Committee, should be transferred to as

the Bankruptcy Courts, and except the com- and give place to the new code it is now mon law jurisdiction of the Chancellor and his

1 *

NOTICES OF NEW BOOKS,

jurisdiction as representative paria patria, the proposed to construct.
whole jurisdiction of law and equity ought to
be invested in the same Court, that the dis-
tinction between the two should be abolished,
the equitable principle in cases of conflict re-
placing the legal, and that this single code can
and ought to be carried out under an uniform
system of procedure."

The Committee wind up their report by recommending the Society to adopt the following resolutions, and, as already intimated, those resolutions were agreed to at a meeting presided over by Lord Brougham, and without a dissenting voice :

"Resolved, with reference to the separate jurisdiction of law and equity as recognized in this country,

"1. That justice, whether it relate to matters of legal or equitable cognizance, may advantageously be administered by the same tribunal.

"2. That where the principles of law conflict with those of equity, the latter shall prevail to the exclusion of the former.

"3. That all litigation, whether it relate to matters of legal or equitable cognizance, may advantageously be subjected to the same form of procedure.

4. That the rules of procedure be embodied

in a code."

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Equity Fund, and Judgmen

9.11

The New Stamp Act, 13 and 14 Fict. c. 97, with Notes and Explanatory Observations, and Tables of all the Stamp Duties, payable after the 10th October, 1850 including the New Law Fund, Registry Duties in Ireland. Together with a Digest of all the Cases, not included in the Treatise on the Stamp Laws. By HUGH TILSLEY, assistant Solicitor of Inland Revenue, Third Edition, Revised and Enlarged. This work forms a Supplement to the second edition of the Treatise on the Stamp Laws by the 1. same Author. London: Stevens and Norton, 1851.

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This new edition comprises numerous prised in the former editions,-particularly notes of great value, which were not comunder the heads of Agreement; Bills of Exchange; Covenant; Foreign Stamp Laws; Lease; Receipts; and Legacy Duty-all which the Practitioner should

carefully perused Kanekont

On the 15th Section, enabling parties who differ from the Board of Inland Revenue as to the duty to be affixed, to state Exchequer, Mr. Tilsley makes the followa case for the opinion of the Court of ing noted gatazo paol

The extent and practical importance of the change thus recommended causes all the other plans of reform and improvement now under discussion to seem insignificant. Accustomed to regard the established system as well calculated in the main to promote the ends of justice, though conceding that, in common with all human institutions, It has been observed, that the tribunal, it is far from perfect and would admit of established by the preceding clause, is not one much improvement, the proposal of the Law which will enjoy the confidence of the profesAmendment Society produces that sensation sion, or be much resorted to. Seeing that the which is familiarly expressed by saying, ment, but by a member of the profession, at the provision was introduced, not by the Govern"it deprives us of breath." No one, apprehend, supposes that the public, or the ing to represent, the whole body, the remark we instance of a society representing, or professlegislature to say nothing of the profes- occasions a little surprise. The suggestion sion-are prepared for such a sweeping would seem not to be grounded in opinion; change. Indeed, this seems to be felt by and, as relates to the want of confidence, it is the proposers of the scheme, who have an scarcely intelligible. The use of the term is a nounced that the report, of which we have in the certificate, furnished by means of the solecism. Unlimited reliance may be placed put our readers in possession of the outline, stamp, whether the Board's decision be volunis to be followed by a series of reports on tarily submitted to or corrected by the superior the same important subject. A considera-tribunal, and whether the judgment be accord

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Review: Tilsley's New Stamp Act, 13 & 14 Vict.

ing to or against the law; the value of such denoting stamp on counterparts of deeds, certificate, therefore, is inestimable. How far and it appears that a mistake prevails in the view, which is altogether opposed to the the profession, that the Commissioners reexperience of the writer, is correct, may be ascertained by a reference to the instances inquire the original deed to be produced which the power conferred on the board has stamped and executed at the time of affixing been made available. They already, within the denoting stamp. Mr. Tilsley says,little more than four months, number upwards of two hundred."

"This provision, as to the denoting stamp, the propriety of which, more particularly in the The member of the profession who intro- instance of duplicates, is obvious, of necessity duced the provision was Mr. Mullings, volving, as it does, the production of the two occasions some practical inconvenience; inM.P., for Cirencester, at the instance of the instruments at the Stamp Office after execuIncorporated Law Society. We had not tion; which it may, perhaps, be, in some cases, previously heard that the profession enter- considered worth while to avoid, by stamping tained any doubt of the utility of this en-each as an original. It has been suggested, actment, and have reason to know that it was proposed, with the sanction of the Provincial Law Societies, with whom the Incorporated Society was in constant communication on the amendments in the Stamp Laws.

how ever, that this will not obviate the difficulty; the provision alluded to, being in its terms, peremptory; rendering it compulsory, in every case where the duty on the original is duty), to have the denoting stamp on the du5s. or upwards (not including any progressive plicate or counterpart. That this was not the Mr. Tilsley is accustomed to collect all intention of the enactment is certain; nor, it is the decisions of the Courts upon any ques-apprehended, can it be the legal effect of it. tion arising out of the Stamp Acts, and since our notice of the First Edition of his Treatise, he has added the following:

"An attorney who had not taken out his certificate since 1841, and whose admission, therefore, at the time of the passing of the 6 & 7 Vict. c. 73, was, by the operation of the 37 Geo. 3, c. 90, s. 31, null and void, applied for re-admission, or for an order authorizing the registrar to renew his certificate. It was suggested by the counsel whether re-admission was not absolutely requisite; but the Master informing the Court that the practice, in such cases, was merely to renew the certificate, Mr. Justice Patteson, fearing that an order for readmission might be considered as affecting the positions of those who had, under the same circumstances, merely taken out certificates, granted a rule in the usual form.'

The object was, to prevent fraud by the use of an instrument impressed with a stamp of low value in the place of one requiring, probably, a large amount of duty, which might never have had any existence; representing the former to be a duplicate or counterpart; and, thus, evade the duty chargeable in respect of the transac tion effected. But no such evasion can take place where the instrument, whether original or otherwise, is stamped with the full duty, as an original. At all events, the difficulty can only arise in the case of a counterpart. Where both are executed and stamped, as originals, it cannot be objected that one is a duplicate. The denoting stamp will not, however, be withheld, in any such case, if it be required.

"The inconvenience has been complained of as being increased by the regulation requiring the production of both the original and counterpart at the same time; a thing, in some "An attorney, who is without his certificate, instances, almost impracticable; as, frequently, is disabled from suing for fees, only in respect lessees can scarcely, it is said, be prevailed of business done in some suit or proceeding in upon to part with their leases, after having one of the Courts mentioned in the 6 & 7 Vict. executed the counterparts; that this difficulty c. 73. In an action by an attorney for his bill is, more particularly, experienced when money, of costs, the defendant pleaded, that, as to a to pay the fine, has been borrowed on the secertain portion, it was composed of fees, &c., curity of the lease, which, after execution, is alleged to be due for business done by the immediately handed over to the mortgagee. plaintiff, as an attorney, whilst he was without The Commissioners do not, however, require this a certificate; to which the plaintiff demurred, to be done. The lease, or other original instruspecially, assigning for cause that it was not ment, when executed by the lessor, or grantor, alleged that the business was done in or relat-may be exhibited alone; a memorandum of ing to any proceedings in any Court whatsoever. The demurrer was allowed.":

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the date, parties, stamp, &c., being left at the office with the person to whom it is shown; and the counterpart, or duplicate, may, at a future period, be produced for the purpose of having the denoting stamp impressed."

This information will be very satisfactory, and seems to go far in removing the inconvenience complained of.