Professional Lists.-Bankruptcies superseded.-Bankrupts.

LIST OF NEW PUBLICATIONS.

The General Turnpike Road Acts, with White, John, Barton-under-Needwood, Tatenhill, Stafford, Notes, Forms, and an Index. By J. Bateman,

Lewin, George Herbert, Raymond Buildings, Bowring, John, and Wm. Garrard, Exmouth Street, Clerk. Gray's Inn.

Cole, Richard John, Chertsey, Surrey. Dec. Baugh, Richard,' Great Russell Street, Bloomsbury, Draper.

Marcy, George, Wellington, Salop. Dec. 4. Cutler, Philip, sen., Ewell, near Epsom, Surrey, Miller. North, John, York. Dec. 11.

The Legal Observer.

SATURDAY, JANUARY 2, 1836.

66 Quod magis ad Nos
Pertinet, et nescire malum est, agitamus.

HORAT.

SIR EDWARD SUGDEN AND
CHANCERY REFORM."

We are happy to find that the subjects to which we have lately called the attention of our readers—the state of the Court of Chancery and the Appellate Jurisdiction of the House of Lords have been brought before the public in a pamphlet by Sir Edward Sugden. We are sure that he is perfectly

sincere when he says that he does not write as a party man, but as a lawyer, whose experience may entitle him, and whose love for his profession and the deep interest which he feels for the judicial institutions of the country induce him, to draw the attention of the Head of the King's government to the manner in which the judicial equity of this country is now administered," at the same time, unconsciously, the partisan will sometimes peep out. Sir Edward Sugden's object seems rather to expose the inconvenience and mischief of the present arrangement, than to propose any remedy for them. He admits that "all men appear to agree that the appellate jurisdiction requires revision;" but he objects to any plan which has as yet been brought forward for the alteration of the present system, neither has he any panacea of his own to propose, unless it be a recommendation that the Court of Review should be abolished, and a new Equity Court established in its stead. He acutely, and with an unshrinking hand, lays bare the evils of the existing commission. He commences by blaming Lord Melbourne for not having better arranged his legal forces. "The country had a right to expect you to be prepared to carry on the government upon

a sure footing; for your own successful efforts-I speak of your party generally--had prepared the way for your return to office, and you cannot therefore have been taken * * There are but two by surprise. * great duties which the state has to provide for our security against external aggression, and the due administration of the laws: for the latter your Lordship's party do not appear to have been prepared.”

We so fully agree with every word of the following remarks, that we are anxious to incorporate them in our pages; and this must be our excuse for the length of the extract. The Italics are our own.

risdictions and of the additional office which

"The arrangement which your Lordship made was objectionable on many grounds. The other occupations of the first and second Lords Commissioners, the nature of their juthey were called upon to fill, alike pointed out the impropriety of the appointments. The placing of the Great Seal in commission was of itself an act which nothing but an overruling necessity could justify. The public is not aware that any such necessity existed. There are few men of property upon whose most important interests Courts of Equity do fore looks with an anxious eye to the manner not at some time adjudicate; every man therein which the judicial duties are provided for. The important duties assigned to a judge sitting in appeal, point to the necessity of appointing to the office not merely a competent person, for if but one in whom the Bar has confidence; will not acquire that of the suitors. The law, as the Judge has not the confidence of the Bar, he he propounds it, should be the rule for all. The great object of an appellate jurisdiction is at once to satisfy the justice of the individual case, and to keep the precedents uniform, and afford a standard for the inferior jurisdictions, and a law is unsteadily administered, no man at the bar sure guide for the practising lawyer. Whilst the cares to give a decided opinion, because he cana "A Letter to the Right Honorable Vis- not depend upon the Judge, and he justifies himcount Melbourne, on the present State of the self to the solicitors and the clients upon that Appellate Jurisdiction of the Court of Chan-ground. Every thing upon which any possible cery and House of Lords. By the Right Hon. [doubt can be raised is thus forced into court, and Sir Edward Sugden." Murray: 1835. the very means adopted to ensure safety in the

VOL. XI.-No. 310.

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Sir Edward Sugden and Chancery Reform.

daily and concurrently exercised. The decision on the appeal, therefore, instead of settling the point of law, merely raises a contention between the two Judges, who may still, in their several jurisdictions, go on deciding according to their respective opinions, until a permanent and paramount Judge of Appeal settles the point. It really is establishing a perpetual see-saw between the two, instead of a controlling power over both. I have assumed that the two Equity Judges in reality decide the appeals from each other's decisions, because, although each has the assistance of the same able and enlightened Judge, yet, as he has had no experience in Equity, I suppose that he would in a great measure be guided by the Equity Judge with whom he sits.

particular case, increases the general mischief, Now no plan could be more open to censure. until the law, instead of a blessing, becomes a It has a tendency to place the two Equity curse to the people. To the first Judge of Ap-Judges in a continual conflict-to induce them peal in this country is assigned the highest sta- to affirm each other's decisions, from the dread tion, in order to give to his decisions all the of having their own reversed, or to reverse, in weight which power and dignity can add to order to place themselves on a level with the their intrinsic merits. It is the homage which other branch of the court where reversals have the State pays to the Law. Such a Judge may already taken place. It is no answer to these properly take all the aid he can acquire upon objections, that nothing of this sort may have particular cases, but the law will not be satisfac-occurred; that the characters of the learned torily administered unless his own opinion be the Judges afforded a sure guarantee that it would inost honoured, and that he act upon it so as to not happen; that a Judge would disregard his preserve one uniform rule. Fixation in matters judicial duty who should so act. I am speakof law, above all things, tends to prevent litiga- ing of human nature, and no man ought, untion, and to make a people contented. Now this necessarily, to be placed in a situation in which requires a singleness of mind and purpose, a uni-a conflict may arise between his duty and his ty which is not to be hoped for where the Great feelings. In another view, the appointment is Seal is put into commission, although where the still more objectionable; for a reversal by such first Commissioner is an Equity Lawyer of repu- a tribunal carries with it no higher authority tation, to whom the others will defer, the mis- than the original decision; each was prochief may be lessened; still it is a step injuri-nounced by a Judge of coequal jurisdiction ous to the particular suitors, and to the general administration of the law. The Commissioners are suddenly brought together, and, as the appointment is for a temporary purpose, their decisions carry but little weight with them. It is known that they are Judges of that Court but for a day. They can hardly venture to do more than satisfy the exigency of the moment. Their successor may unravel much of their labours. It is not a light calamity to have the law of the country unsettled and perfunctorily administered for several months. The putting of the Great Seal into commission is therefore of itself an evil; but this evil may be aggravated. "A century had elapsed since a Master of the Rolls had been appointed a Lord Commissioner. Of the four Commissions issued since 1725, in two the Chief Justice of the Common "There happens to exist a difference of Pleas was first Commissioner, and in the other opinion between the two Equity Judges upon two the Lord Chief Baron. The nature of the an important point of frequent occurrence; office of the Master of the Rolls rendered his viz. whether the trust for the separate use of appointment as a Lord Commissioner highly a married woman is valid beyond the particuobjectionable. In 1813 a Vice Chancellor lar marriage. This point came a second time was created, inferior in rank to the Master of before one of them in his own Court since the the Rolls, but co-ordinate with him in juris- commission issued, and he was asked from diction; each decides the cases before him, the Bar to make a decree contrary to his own not subject to the control of the other. The opinion, because, if he pronounced it accorddecisions of either are cited as authorities ing to his opinion, there would be an appeal which the other may adopt or reject, just as upon which the other Equity Judge would sit, he thinks them well or ill decided, and the and he would reverse the decree! Now look constitution has afforded a higher authority to for a moment at the situation in which the rectify their errors, and settle the disputed suitor might be placed. The Master of the points. This new appointment rendered it Rolls decides against the validity of the trust: still more objectionable to appoint the Master upon an appeal the Vice Chancellor, with the of the Rolls a Lord Commissioner, and the assistance of the third Lord Commissioner, objection would apply with at least equal force reverses the decision. The Vice Chancellor, to the Vice Chancellor. The present com- in his own Court, then decides the point in mission, your Lordship is aware, is constituted favour of the continuance of the trust; that of the Master of the Rolls, the Vice Chancel- decision is in its turn appealed from, and comes lor, and a learned Common Law Judge. Does on before the Master of the Rolls and the third this conjunction remove the objection? By Lord Commissioner; and the former Judge no means; for as it was foreseen that if they adheres to his opinion, so that there can be no sat in judgment upon their own decisions, order made. This is not an improbable case, they would hardly be prevailed upon to agree and it is not a satisfactory mode of settling to a reversal, however necessary, an arrange- the law of property. There were other reament was made that one of the Equity Judges sons against the plan of great weight: both of should sit with the Common Law Judge to the Equity Judges had, at the time of their apreview the decisions of the other Equity Judge.pointment, more business of their own Courts

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155

These observations deserve profound attention. The grievances complained of do not rest on party grounds: they are of the greatest moment to the suitor and the public at large-to say nothing of the profession- and call most loudly for redress.

before them than they could well manage. The Courts of the two Equity Judges, and of the number of cases before the Master of the Rolls third Lord Commissioner besides." at the end of Hlary Term 1835 was 193; the number before the Vice Chancellor at the same period was 242, both exclusive of petitions and motions. These numbers I take from the printed return to the House of Commons. They do not include causes, &c. which were abated or stood over, although they may come into the paper again at any moment, and should Sir Edward next turns to the state of the be treated as actual arrears. I may observe that the number of causes, &c. in the Court of Appellate Jurisdiction in the House of Lords. Chancery when the office of Vice Chancellor He is strongly opposed to any separation of was created, was only 218, and there was no the duties of the Lord Chancellor. He conundue pressure at the Rolls. It might easily siders that the effect of this will be to render have been foreseen that the additional duties the Lord Chancellor a mere political person, thrown upon these two Equity Judges by ap- and cites the opinions of Mr. Canning in pointing them Lords Commissioners, would 1813, and Lord Brougham in 1830, against increase the arrear; and accordingly, when the sittings closed for the long vacation, the the alterations. The sentiments of the latter number before the Master of the Rolls was 280, have however been very much varied on this before the Vice Chancellor 252; and the latter subject, and he has declared himself quite Judge had, besides, many heavy petitions, and as warmly in its favour as against it. No a very large arrear of motions. The numbers one ever supposes that the division of the which I have just stated were those actually duties is not accompanied with great diffiready for hearing. There were besides twenty

Sir Edward is equally opposed to turning the Privy Council into a court of ultimate appeal. I believe," he says, "it (the Judicial Committee) has worked very well for the immediate objects for which it was created, and that a great deal of business has been disposed of; but as a Court of Appeal, to sit on questions of Property Law, I think it objectionable, on account of the uncertainty of the persons who will sit in judgment." He prefers the House of Lords.

three causes, &c. abated and standing over be-culty: the question is, whether, seeing that fore the Master of the Rolls, and sixty-one the evils of the present system are admitted before the Vice Chancellor. On the 19th of by all, this be not the best remedy. this month there were waiting for hearing, 334 causes, further directions, and exceptions at the Rolls, and 326 before the Vice Chancellor, besides motions, &c.; and there were twenty-three causes, &c. abated and standing over before the Master of the Rolls, and sixtyfour before the Vice Chancellor; and the former learned Judge, notwithstanding all his diligence, had a good many judgments to deliver. This is a formidable quantity of business, and requires all the judicial hours which the Judges of the two Courts have it in their power to bestow, and they ought not to have other duties imposed upon them. The actual "The House of Lords must always afford an progress made during the whole of the last excellent place as a Court of Justice. If the term, and the sitttings after it to the 14th of audience is not large, yet the Court is open to this month, affords no hope that the arrear all, and the importance of the place, the distance can be subdued in a reasonable time, and the of the Counsel from the Judge, if I may so call current business be promptly attended to. him, and the power which all the Lords have of The Vice Chancellor was so much impeded by attending, afford an opportunity of being heard heavy petitions, &c. that he heard, during the to advantage, which no other place could give. above period, but thirty-five causes out of the But then, not only should the Lord Chancellor general paper. The Master of the Rolls heard have regularly other and great assistance in the eighty-seven. These learned Judges have, House in hearing appeals, but the forms of a much to their honour, given additional time to Court of Justice should be more strictly adthe suitors in their own Courts; but this, again, hered to. Noble Lords should not feel themleads to permanent mischief. In my appre-selves at liberty to occupy the attention of the hension no Judge in Equity can sit for more than five hours a day regularly with advantage to the public. There are few days which will not furnish materials for consideration out of Court, and more protracted sittings lead to hasty judgments, or to great delay in delivering them. The Lords Commissioners may well deserve the additional remuneration which they receive, but I refer to the subject only for the purpose of keeping in mind, that the cost to the public, all this time, is just the same as if they really had an efficient Judge of Appeal, and the full services in their own

Lord Chancellor with any other subject during the hearing; and, above all, the Lord Chancellor should give to the argument his undivided attention. I know that nothing discourages a counsel so much as the inattention of a Judge: it has a tendency to render him indifferent to his argument; for it is very distressing when one of great labour is thrown away; and if he persevere, it leads to repetition, which in its turn disgusts the Judge: and the Court and the Bar become mutually dissatisfied with each other. If a Judge give, as he ought to do, his b See 10 L. O. 1, 2.

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