New Order in Chancery. Repeal of the Attorneys' Certificate Duty. 25 tion, or take any proceedings, until such notice homines tot sententiæ," U. Z. L. may deem it has been given. 5. That all motions, petitions, and further | proceedings in causes in the Lord Chancellor's Court, except any motions or proceedings which are now part beard, shall be had before the Judges to whose Court the same shall, under the provisions of these orders, be attached, unless removed therefrom by any special order of the Lord Chancellor. a privilege to be allowed to pay, but the large majority of his brethren are, I am sure, unambitious of such a distinction, and if the impost be indeed an honour, it is like Malvolio's greatness" thrust upon them." In his next paragraph, U. Z. L. inforins us that he thinks Adam Smith complained that not one in twenty who were in the proU. Z. L. had thought a little more before he fession, were capable of pursuing it." Sir, if penned this passage, he would not have mirepresented Adam Smith, or occasioned me much trouble in searching for a dictum which 6. That all notices of motion not in any the "Wealth of Nations" I am confident, cause, and all petitions not in any cause, which | does not contain. Adam Smith nowhere asare presented to the Lord Chancellor, shall beserts that "not one in twenty of our profession marked with the title of one of the Vice Chan-are capable of pursuing it;" but he does main We understand that the Orders of August last, which were intended to come into operation immediately after the present Term, will be suspended. ED. REPEAL OF THE ATTORNEYS' CER- tain, what is much more important to the proper determination of this question, "thata tax upon the profit of any particular employment, when not proportioned to the trade of the dealer, favours the great, and occasions some oppression to the small;" and he adds, (choosing by the way, the very example fixed upon by U. Z. L.) "that if this shop tax, which was originally intended to have been the same in all shapes, had been considerable, it would have oppressed the small, and forced almost the whole retail trade into the hands of the great dealers." So much for the professor's evidence; now for the Chancellor of the Exchequer, who gratified the lynx-eyed attorneys of his day, and supplied the wants of the country by laying on this much vilified duty." The attorneys' certificate duty, which U. Z. L. applauds, was most reluctantly imposed by Mr. Pitt in 1784, as a tax by no means unobjectionable, but renTo the Editor of the Legal Observer. dered nesessary by the exigences of the times; as Sir, a war tax, to be abolished when the war should In your last number I observe a defence of cease; while its proposer, so far from wishing to the "Attorneys' Certificate Duty," by a cor- gratify the lynx-eyed attorneys' either in the respondent, who subscribes himself U. Z. L., house or out of doors, refused to accede to the and is, I believe, an old antagonist of mine, propositions of those gentlemen, who, from for if I mistake not, when you "obliged him resentment' proposed a duty of 20/. or 301, and by inserting a paper in favour of this duty," fixed it at the annual sum of 57. adding a small you, with equal courtesy, published my reply tax on every warrant issued, that "Attorneys in your number for 26th November, 1836. might contribute in proportion to their business, As U. Z. L. has, after so long an interval, re-and the tax be freed from partiality.” c newed the controversy, permit me to crave room for a few strictures on his last communication. He has found out that you, Sir, are a "repealer," and like "Lambro," Lord Byron's celebrated "sea-solicitor," is "much more astonished than delighted" at the dis- | covery; I, Sir, on the other hand, an not at all surprised at your accession to our ranks, though I am truly grateful for your assistance, and trust that you will not relinquish your exertions until this unjust and most obnoxious impost is abolished. U. Z. L. denies "that there is any semblance of degradation in the imposition of this duty;" be it so. Our complaint is not that we are insulted, but that we are unequally and unjustly tared; the question is not one of professional dignity, but of finance; the payment of an annual duty of 12. to government, is in itself neither creditable nor disgraceful, "quot For the next thirty years this duty remained fixed at 57. annually; but in 1804, Mr. Addington doubled, and imore than doubled its why? because the Habeas Corpus act was suspended, and Martial Law proclaimed in Ireland, while Napoleon, who had that year added 400,000 men to his immense army, threatened us with immediate invasion. It became necessary therefore to sacrifice something, that we might preserve the remainder of our property; and the profession almost without a murmer submitted to the double burthen. The war, however, terini a Wealth of Nations, Book V. chap. 2, art. 2. b Ibid. Hughes' Continuation History of England 8vo. edit. Vol. 3, p. 254, and Hans. Parls. Deb. Vol. 25, pp. 786, 814. I have cited these authorities more fully in my former letters, and forbear to recapitulate them here. 26 Repeal of the Annual Certificate Duty.-Moot Points. are trifling when compared to ours; for these gentry we are not concerned: let them fight their own battles with the Chancellor of the Exchequer; it is enough for us to act upon the motto of your magazine,-"Quod magis ad nos pertinet agitamus." nated, and six-and- twenty years of peace have | sellers," the expenses of their annual licences succeeded to the glorious victory of Waterloo; yet the attorneys' certificate duty still continues fixed, not at the original sum which Mr. Pitt reluctantly proposed, but as it was doubled in 1804 by Mr. Addington. Now, sir, what inference must the profession draw from the treatment they have experienced from the financiers? Should it be," contribute freely towards the exigencies of the state, whose rulers will relieve you when their peril shall have passed away?" or must we, in the bitterness of our hearts, adopt the sterner maxim comprised in two short words principiis obsta.' 66 'But,' says U. Z. L., 'the war in which all classes and interests concurred;-(this again, sir is not a fact, but an assumption :-let it pass, however-) this war not only developed the magnitude of our manufacturing and commercial resources, but had an important influence on the profession, by inducing those engaged in such pursuits to seek the improvement of the position of their sons by making gentlemen, in other words, attorneys of them," that is to say, these rich plebeian merchants and manufacturers obtained professional, as they might at the Horse Guards have obtained military, rauk, by purchase;' from gens de commerce they became noblesse de la robe,' and all these advantages they gained for the annual stipend which made Mr. Sampson Brass of Bevis Marks a gentleman; to this argument U. Z. L. is welcome-valeat quantum. One word more, Sir.-U. Z. L. cavils at your calculation of professional profits, and by implication argues that you under-estimate their minimum, if you compute it at 1000. per annum. Would to heaven, that U. Z. L. were accurate in his calculation; I suspect 2001. to 250%. would exceed our average profit. But let Adam Smith be re-examined before your readers are called on for their verdict"Compute (says the Philosopher)d in any particular place what is likely to be annually gained, and what is likely to be annually spent, by all the different workmen in any common trade, such as that of shoemakers or weavers, and you will find that the former sum will generally exceed the latter. But make the same computation with regard to all the counsel and students at law in all the different Inns of Court, and you will find that their annual gains bear but a very small proportion to their annual expense, even though you rate the former as high, and the latter as low, as can well be done." Temple, 8th November, 1841. MOOT POINTS. WOMEN. LEGALIS. The following opposite opinions as to the proper construction of some of the clauses of the Fines and Recoveries Act, have lately been much discussed. In the meantime, the "lynx-eyed attorneys" of 1804, acquiesced in the annual duty of 51., being "of opinion that it was desirable, and would operate as a check upon the professional ACKNOWLEDGEMENT OF DEEDS BY MARRIED increase." Poor mistaken individuals! why, even a certificate duty of 127. per annum, has, as U. Z. L. acknowledges, "long since ceased to operate as a prevention to admission." On what ground are we then singled out as the objects of exorbitant and unjust taxation? 1st. It has been contended that sec. 77, which Has the duty diminished our numbers? No, enacts that it shall be lawful for every married like the Hebrews under the Egyptian task-woman in every case (except that of being tenant masters, we increase and multiply in spite of in tail &c.) by deed to dispose of lands of any the oppressor. But "it is a war tax "-Ex- tenure, and so forth, must be considered merely cellent! why the war annually employed hun- as the enabling clause, substituting a more dreds of military and naval officers, who have simple mode of assurance for the fine now since the peace flocked into our profession, abolished; and not as restraining or abridging and the tax is continued, when, after six-and- any power previously possessed by a married twenty years of peace, as our numbers annually woman, nor as adding the ceremony of examiincrease, our individual profits lessen. Let me nation and acknowledgement, in any case appeal from U. Z. L., the controversialist, to where, before the act, a fine was unnecessary; U.Z. L. the man of sense and moderation, but that as regards all such previously existing and bidding him apply the old convivial maxim, and independent powers, whether given by the more the merrier, but the fewer the act of parliament or created by deed or will, better cheer," leave it to his candour to de- this section of the act must be considered as cide whether the attorneys' certificate duty cumulative only. should be abolished or retained. denied, and sect. 77 standing by itself, ad2nd. Supposing such a construction to be mitted to apply to every deed to be executed by a married woman, that even then the following sect. 78, gives the effect above contended for, by providing that the powers given to a married woman by this act, shall not interfere with any power which, independently of this act, may be Yet again, U. Z. L. regrets that in your previous argument you have adverted to the exemp: tion from certificate duty which the clergy and the bar enjoy. Long may they enjoy it, and speedily may we participate in their immunities! We seek not to burthen them, but to free ourselves and our successors from oppression. As to the "auctioneers, the horse-dealers, the hawkers, the pawn-brokers, and the liquor-d Wealth of Nations, book 1, chap. 10, part 1. Selections from Correspondence.-Superior Courts: Rolls. vested in or limited or reserved to her, so as to prevent her from exercising such power." In opposition to these opinions, it has been urged: 1st. That the intention of the Fines and Recoveries act was not merely the substitution of a more simple mode of assurance for the fine, but also to give to married women an additional protection against the influence of their husbands in the disposal of their property, even in those cases where powers have been entrusted to them by parliament or private individuals, SUPERIOR COURTS. Rolls. TRUSTEES,-INDEMNITY OF. 27 Trustees are not entitled to retain an appointed portion of a trust fund, as a seçurity for costs and expences, where the remainder is likely to prove an adequate indemnity. The petition in this case was presented by one of the children of the late Mr. Simpson, in the pleadings named, and it prayed a transfer to him of the portion of the trust fund standing to the credit of the cause, which had 2d. That sect. 78, does not apply to general powers given to married women by acts of parliament, nor to any special powers created since the commencement of the Fines and Re-been appointed in his favour. coveries Act. A COUNTRY ATTORNEY. SELECTIONS FROM CORRESPONDENCE. SERVICE OF CLERKSHIP. Mr. Editor. دو It appeared, that on the marriage of the petitioner's mother with the late Mr. Simpson, a settlement was executed, by which the property in question was vested in trustees, upon trust to pay the interest and dividends to the mother for life, with a power of appointment in favour of her children. There were three children of the marriage, of whom the petitioner was one, and she having exercised her power of appointment in his favor to the extent of one-third of the settled property, he now sought, with her consent, to have the amount of it paid over to him. Sometime after the death of Mr. Simpson, Mrs. Simpson intermarried with the late Admiral Maitland, and on the occasion of this second marriage, a further settlement was executed, by which her life-interest under the first settlement was assigned to a trustee upon the trusts contained in the latter deed; and the application was opposed by this trustee, on the ground that a suit was now pending in the Court of Chancery, in which he had incurred considerable costs, and that if it proceeded, he might become liable to very heavy charges, from which he I have just read a letter signed "A Country Articled Clerk." No doubt the writer feels the inconvenience to which many of the country articled clerks are subjected, viz. "that of seeing little or nothing but conveyancing busiThis is ness during the period of clerkship.' unfortunate, but I can assure him the articled clerks here, who in some, even large offices, see nothing but common law and chancery practice, and are scarcely called on to draw a single deed, would be glad to see a portion of that conveyancing, which he very rightly considers of the greatest importance. I have an articled clerk, who, as my small business consists of common law and some chancery, with but little of conveyancing, will be much at a loss as to the practical part of the last-mentioned branch of law. I endeavour to assist him by getting him to read the best conveyancing be ascertained. books I can procure, and in the vacation, he Pemberton and Sidebottom for the petitioner, does, I trust, spend whole days at this employ-contended, that the annual amount payable to In 1834, Jane D. mortgaged certain lands to her brother, Joseph D., for 500 years for securing 800., and in the following year, by her will duly executed, she devised the same lands to her two brothers-Joseph D. (the mortgagee) and Augustus D., as tenants in common in fee. Did this devise of the reversion merge the term of 500 years, either at law or in equity? or is it still subsisting? And is Joseph D., the mortgagee, entitled to receive the whole, or only half of the mortgage money? I have not been successful in finding any case in point. A. M. C. was entitled to be indemnified out of the trust funds, and that no portion of them ought therefore to be parted with until these claims could Mrs. Maitland being 430., there would be ample security, after payment of the amount sought to be transferred, for any claims to which the respondent could be rendered liable; and as a proof that he himself entertained this opinion, he had never sought to prevent the payment of the dividends to Mrs. Maitland, although the litigation to which he referred had been pending for several years. Kindersly and Hallett, contrà, urged, that as trustee their client had a lien upon all the property conveyed to him by the second settlement, and that as Mrs. Maitland was now advanced in years, the whole of her life interest could not be deemed more than a sufficient security for the expences to which he might become liable. The Master of the Rolls said, that the objection made by the trustees, if well founded, would extend to prevent even the receipt of the income of the trust property by the widow, 28 Superior Courts : Queen's Bench. which it was clear she had never contemplated, notice of action, which was objected to on the as she had received such income without any ground that it did not state the place in which question. Trustees were entitled to be indem- the assault was committed. The objection nified from costs and expences, but they could | was held fatal. The plaintiff's counsel then not be allowed to prevent the enjoyment of contended that there need not be in this case the trust property on account of such claim; any other proof of a notice of action than that and as the funds appeared to be ample after afforded by the fact that the defendant had satisfying the petitioner's claim, the prayer of made a written tender of amends, in which the the petition must be granted. If it were notice of action was set out at length and in thought necessary, an application might be the matter stated in that action, the defendant made to stay the further payment of the an- tendered the sum of 50l. as amends. This nual income arising from the trust property. tender was submitted to be a waiver of the Pemberton and Sidelbottom, for the petitioner ; notice. The learned Judge, however, was of a Kindersly and Hallett, for the trustee. different opinion, and the defendant had a Ex parte Simpson, Nov. 4, 1841. verdict. Queen's Bench. [Before the four Judges.] PRACTICE. A writ of capias had issued out of the Common Pleas, under the authority of a decree in the Court of Chancery, on the 1 & 2 Vict. c. 110, s. 18, and the defendant was arrested on it. The defendant was then detained on a writ issuing out of this Court. The Court would not, upon a motion to discharge the defendant from custody on the detainer, decide in the first instance whether the arresting writ was rightly issued, but referred the party to the Court out of which that writ issued. Mr. Pearson noved for a rule to discharge the defendant from the custody of the marshal as to this action. He founded his notion on an affidavit which stated that the defendant was arrested upon a capias which had issued out of the Court of Common Pleas, on the authority of a decree or order of the Court of Chancery, for the payment of certain costs declared in that order to be due from the defendant to a person therein named. capius was issued under the provisions of the 1 & 2 Vict. c. 110. After being thus arrested, he was detained on several other writs, one of which was the writ which had been issued in this cause. The original arrest was illegal; the section of the statute did not authorise it to be issued in such a case, and consequently the defendant was entitled to his discharge on this detainer. He was stopped. The Per Cur.-We cannot discuss in the first instance the legality of this arrest, which has been made under a writ from the Common Pleas. The application must be made to the Court out of which the writ whereby the arrest was made originally issued. Rule refused. Wright v. Sandford, M. T. 1841, Q. B. F. J. MAGISTRATE.-NOTICE OF ACTION. Where a statute gives a magistrate the right to a notice of action, the mere fact that he has tendered amends will not dispense with the necessity of proving the notice. Trespass and assault against a Magistrate. At the trial of the cause, the plaintiff put in a Mr. Peacock now moved on both grounds to set aside the verdict and have a new trial. He cited Cole v. The Bank of England.a Per Cur.-It is clear that where a statute gives a magistrate a right to be served with tendered amends will not dispense with the notice of action, the mere fact of his having necessity of proving the notice. The statute requires that there shall be such notice; and it must be distinctly proved to have been given. Rule refused.-Martin v. Uppcher, M. T. 1841. Q. B. F. J. A proceeding against an ecelesiastical person Where, therefore, the Archbishop of York, Quære, whether it would lie if the commissary [Concluded from p.12.] and Mr. Cockburn, in support of the rule.Mr. Creswell, Sir W. Follett, Dr. Adams, he has here claimed to exercise. The Archbishop of York has no such power as place, such a power is opposed to the constiIn the first tution of the church of England. In the next, it is opposed to the particular constitution of the cathedral church of York. The power of privation; for that purpose there must be a the ordinary, as visitor, does not extend to deregular process, and the charge must be made and proved, and the answer heard in the ordinary and regular manner. A visitation is not bears all the marks of a criminal proceeding of a criminal proceeding, yet here the decision the highest nature; the dean is sentenced to be degraded from the dignity and place of dean, and to be deprived of every other ecclesias a 2 Perry & Dav. 521. Superior Couris: Queen's Bench. 29 to give him information as to the state of his diocese; but if he intends to act on that information, especially in the way of deprivation, he must go to the accustomed judicial place, to the proper ecclesiastical Court, and there require the person to answer the accusation. Ayliffe,b Rogers, and Burns,d all shew that a party cannot be deprived except by a judicial proceeding; and the same doctrine is laid down in Ex parte Williams. The only case in which a bishop, as visitor, has the power of deprivation, is that where he is also the founder. Here he does not possess that character, and the fact that when founder he may on visitation proceed to deprive, shews that when he has no such character he cannot claim to exercise that power. It was in the character of founder that in Walrond v. Pollard, the bishop had proceeded to deprivation. But even in that case the bishop was afterwards held to have exceeded his power, for actions were brought against the lessees who held leases granted by the dean, that had been deprived, and the judgment of the Court was in favour of the validity of the leases. So that it is clear that the general right now claimed by the bishop cannot be supported. But even if it could, that general right could not be appealed to in the present case, for with regard to the cathedral church of York, it has been extinguished by the composition of William de Melton. No doubt exists that the composition was duly and regularly made at the time, and that for some time it was acted on, and it put an end to some unseemly disputes between the dean and chapter, and the archbishop. But it appears that it had not been formally signed and sealed by the archbishop, and he afterwards took advantage of this irregularity to deny its validity. The fact that some bishops have had power enough to dispense with observing this composition, does not shew that it has no binding force, or that it cannot be enforced upon an appeal to the proper tribunals. Then comes the third point as to the effect of the statute of Victoria. It is clear that these proceedings are illegal under that statute. The 23d section enacts "that no cri tical preferment in the church of York. The Report of the Ecclesiastical Commissioners is wholly opposed to the present proceeding of the archbishop; and that report is signed, among others, by Lord Tenterden, Lord Wynford, the Archbishop of Canterbury, and the most eminent Judges of the Ecclesiastical Courts. That report first shews that there was not then any such power in the bishop as is now claimed, and that there cannot be at one and the same time a deprivation for the contumacy of not appearing to answer a charge, and a de privation in respect of the charge itself. The first step required for such a purpose is the exhibition of articles; no articles have been exhibited here. Yet in a regularly conducted proceeding they are absolutely necessary, that the party inculpated may have an opportunity of objecting to their admissibility before being called on to answer them. Whatever charge was made in this case, was made ore tenus, and consequently no opportunity of that kind was afforded to the dean. If any objection had been made, it would have been against articles that did not appear, and against evidence that did not appear on the face of the proceedings of any ecclesiastical Court. If the bishops from ancient times have possessed the great powers now claimed for them, how absurd it was for the Ecclesiastical Commissioners to speak of the deficiency of means of superintendence over the clergy! how needless to recommend that new powers should be conferred on the bishops for that purpose! and how ridiculous the labour of the legislature in passing the act 3 & 4 Vict. c. 86, to confer these powers on the bishops! The fact that that statute has been passed is a legislative declaration that till it did pass the bishops had no power to do what has been tried to be done in this case. The bishop could not, before that statute, do any thing in his visitation but enquire. He possessed no power to adjudge and to punish. He may still enquire, but he is bound, even with the additional powers conferred on him by statute, to take proceedings in a regular and formal manner before he can adjudge. The bishop here has acted on the information obtained by him at the visitation-minal suit or proceeding against a clerk in holy he has acted on it at once. Instead of doing that, he ought to have reduced the information into the shape of articles, which ought then to have been exhibited in the regular manner in the proper episcopal court. The case of Walrond v. Pallard,b has been cited as shewing that the dean and chapter are visitable of the bishop of mere right, and certainly, in that case, that expression is used; but the Ecclesiastical Commissioners shew that that resolution was taken in an erroneous view of the law, and arose from the fact that such a power had once been claimed by the Crown, and was used immediately after the Reformation, but had never been exercised since that period, as in truth it had no good foundation in law. Visitations are only for enquiry; they resemble an inquest, and the bishop may appoint persons a 3 Dyer, 272 b. b 206-209. orders, shall be instituted in any ecclesiastical Court, except as is hereinbefore provided." This is a criminal proceeding, and the form of it is not according to the provisions of the statute. [Lord Denman, C. J.-What is your answer to the argument on the other side, that the prohibition cannot issue as the proceedings are at an end by the sentence?] The proceedings here are not at an end. The Court has merely adjourned. Before the sentence was pronounced, an application was made to the Lord Chancellor for a prohibition, which was expressly refused by his Lordship, on the ground that he could not presume that the commissary would illegally exercise his power, c On Ecclesiastical Law, tit. Deprivation, 302, and Visitation, 834. d Tit. Deprivation. |