Imágenes de páginas
PDF
EPUB

The Legal Observer.

SATURDAY, JANUARY 23, 1836.

"Quod magis ad NOS
Pertinet, et nescire malum est, agitamus.

CHANCERY REFORM.

THE subject of Chancery Reform is daily receiving more and more attention, and will properly demand a considerable portion of the time of the legislature in the session about to commence. It is well understood that the recent arrangement of the Court of Chancery is only intended to be temporary; that however satisfactory it may be under existing circumstances, it is only a step towards the final settlement of the question. We very recently noticed the pamphlet by Sir Edward Sugden, relating to the state of the Court of Chancery; and we have now to bring before our readers another on the same subject, by a gentleman well entitled to be heard on it. It is our

HORAT.

to some of the details we shall proceed to advert; and "surely," he says, "the fulness of time for the alteration and reformation of the Court of Chancery has now arrived, when an accumulated arrear of 846 causes exists, an arrear never before known, and which there is not the slightest prospect that the present Courts will be able to subdue."

He first goes minutely through the state of the business for the last twenty years; and he shews the inability of one man to dispose of all the labours now imposed on the Lord Chancellor; and here we cannot do better than quote the following striking passage :

"My sole object in writing this Letter has been to discover a remedy for all these evils, and on that account it is that I have not alluded

duty to state the opinions of all parties: to or instituted any comparison between former and we shall now call attention to those Lord Chancellors, for what would such allusion of Mr. Lynch; and we are happy to or comparison avail to my purpose? If I find Lord Hardwicke hearing more causes, and find that they generally accord with our Lord Lyndhurst and Lord Brougham hearing own, which we have taken frequent op-nore appeals than Lord Eldon; if, on the portunities of making known. In our fifth volume, and more recently, in our present volume, we ventured to propose pretty much the same plan of Chancery Reform now advocated by the present writer; and we are glad that he has lent his authority to its support.

other hand, I find Lord Eldon hearing many more motions, (and many of these motions as important as causes,) and bankrupt petitions than any of the other noble lords ;-or if I find Lord Brougham hearing more appeals than Lord Brougham to have been more assisted in Lord Lyndhurst; if, on the other hand, I find the House of Lords than Lord Lyndhurst, and relieved from hearing bankrupt petitions, I should only establish this broad and general fact, that the evils belong to the system."

Mr. Lynch's opinions may be thus briefly summed up: he would separate the duties of the Lord Chancellor; he would create a Chief Judge in Equity; he would remodel But we shall give some few of Mr. the appellate jurisdiction of the House of Lynch's particulars of cases, which are well Lords; he would abolish the Court of Re-worthy of attention; and first, as to those view, and the Judicial Committee of the in the Courts of Equity: Privy Council.

[blocks in formation]

After

"The first was, Fournier v. Paine. the cause was set down to be heard on exceptions, and whilst waiting for the hearing, all the parties on the record died, and it became necessary to file three different bills of revivor. The other case was that of Townsend v. Campernowne. This was a suit which was commenced in the year 1817, in the Court of Exchequer, for the purpose of avoiding the delays

P

[blocks in formation]

of the Court of Chancery, and in this suit ten | the case of Green v. Jackson, of course, redifferent bills of revivor and supplement had mained undecided in the Court of Chancery. been filed. It is still depending. In a Court But early in the year 1834, the parties in Amof Common Law, a party commencing his ac-phlett v. Purke compromised, by dividing the tion in Michaelmas, or even in Hilary Term, property, which was considerable, between may have his final judgment in Easter Term. them. Lord Lyndhurst became Lord ChanIn a Court of Equity, a party seldom has his cellor in November, 1834, and early in Janufinal decree until the expiration of two or three ary, 1835, the appeal in Green v. Jackson was years. I am aware that a waggon cannot be heard before him, and he affimed the judgment driven at the same rate as a two-wheeled chaise, of Sir John Leach, and thereby, by inference, as was once well observed by Sir Vicary Gibbs; aflirined the decision of Sir John Leach in Ambut when the waggon has arrived at its place phlett v. Parke. of destination, I see no reason why it should not be unloaded."

Next, as to appeals to the House of Lords.

"The case of Cadell v. Palmer was called on for hearing on the 5th of March, 1830. Lord Lyndhurst was then Lord Chancellor, and it was represented to his lordship that this was a fit case in which to call for the assistance of the Judges; it stood over for that purpose. Your lordship would naturally suppose that it was heard the next week; or if not the next week, the next month; or if not the next month, the next year. No such thing. The case of Cadell v. Palmer was not thought of until the month of February, 1832, when the Judges attended, and Sir Edward Sugden and myself were heard in support of the appeal. Four o'clock having arrived, the counsel for the respondent had no opportunity of proceeding on that day. Your lordship would, no doubt, suppose the cause was heard the next day; or if not, during the next week; or, at all events, within the month. No such thing; it was not heard until the next year, February, 1833, when the Judges again attended, and the cause was finally heard.

"In the case of Robley v. Brooke, briefs were delivered in the month of August, 1831, and the cause was then expected to be heard in a day or two; but it was not heard until April,

“This case shows how uncertain the law is, both in the Court of Chancery and House of Lords; and to what is this owing but to the uncertain tenure of the office of Lord Chancellor, as well in the House of Lords as in the Court of Chancery. There are strong grounds in favour of both decisions; but I mention the case for the purpose of showing the delay and uncertainty which at present exists in the hear ing and decision of causes. These cases affected property. I will now mention one which af fected the liberty of the subject. It is that of The King v. Rowe. The defendant had been indicted and found guilty: he moved in arrest of judgment, and from the decision of the Judges in Ireland on that motion, he appealed to the House of Lords. His appeal, which did not stop the execution of the sentence passed upon him, was pending nearly four years, and during that time he was incarcerated. The appeal was successful, and the decision of the Irish Judges set aside; so that this individual suffered an illegal imprisonment of nearly four years, in consequence of the delay in hearing appeals in the House of Lords.”

cient; and urges the separation of the duties of the Lord Chancellor as the only effectual remedy; and then proceeds thus :

Mr. Lynch then discusses the attempts hitherto made to relieve the existing evils ; the Chancery Commission in 1824; the bill for appointing an additional Equity Judge, brought in by Lord Lyndhurst; the 1833. Briefs were likewise delivered in the cause of Lewis v. Morgan in the same month establishment of the Court of Review; the of August, 1831, but this appeal was not heard appointment of a Deputy Speaker; and until 1834. In like manner briefs were deli-pronounces them, with justice, to be insuffivered in the case of Bulkeley v. Wilford, in the year 1831, and this appeal was not disposed of till 1834. The case of King v. Lorton was ready for hearing in the year 1831, and it is not yet heard. I cannot omit mentioning the case of Green v. Jackson. The bill in that cause was filed in 1819, and in 1828 it was about to be heard for the second or third time, on further directions, before the Master of the Rolls, when notice was taken of it in the House of Commons, by Mr. M. A. Taylor, the late member for Sudbury. It was so heard in the month of June in that year; but an appeal was lodged from that decision to the Lord Chancellor, which was not heard until the year 1831, when the Lord Chancellor said he would not finally decide it until the case of Amphlett v. Parke was decided in the House of Lords; in which case there was an appeal then depending from a decision of the Lord Chancellor. The case of Amphlett v. Parke remained undisposed of in the House of Lords in 1834; and

"The other features of the plan which I humbly submit to your lordship are these,that there should be always during the whole juridical year a Court sitting in the House of Lords, consisting of the Lord Chancellor and three other learned individuals; I would have the Lord Chancellor to sit in the House of Lords as Judge of Appeals-but not alone; I would have him assisted by three of the best lawyers that can be found-taking it for granted the Lord Chancellor will be an equity lawyer, because the number of appeals from Courts of Equity is much greater than from all the other Courts. The other three learned lords should be, one an equity lawyer, one a common law. yer, and one a civil lawyer. But if the Lord Chancellor should not be an equity lawyer, then two of the three others should be equity

Chancery Reform.- Changes in the Law.

203

lawyers. This Court should be the only Court | have shown that the Lord Chancellor should cease to be a political character; that the appellate jurisdiction of the House of Lords requires to be reformed; that the Lord Chancellor should be at the head of that Court, but that he should receive regular assistance, as I have stated."

of Appeal for England, Ireland, Scotland, and the Colonies, and from the Ecclesiastical Courts. It should have a distinct Bar. The costs should be subject to taxation, and put upon a different footing from that on which they stand at present. The Court ought to have the power of calling in the assistance of the Equity and Common Law Judges."

The arguments for a Court of Appeal, consisting of several Judges, are so forcibly put, that we cannot resist giving them.

We have now, we think, given enough to make any person who is interested in the subject, desirous of seeing the full explanation of Mr. Lynch's views. We can conscientiously declare his pamphlet to be clearly, ably, and impartially written, abounding with facts in support of the propositions advanced, and in our opinion highly creditable to its learned author.

CHANGES MADE

LAW

IN THE DURING THE LAST SESSION OF PARLIAMENT. (1835.)

HIGHWAYS.

5 & 6 W. 4, c. 50.

THIS is "An act to consolidate and amend the Laws relating to Highways in that part of Great Britain called England." It passed the 31st August, 1835.

The following is the substance of the enactments, with some of the clauses, more important than others to the practitioner, stated fully.

1. Repeal of 6 G. 1, c. 6, in part, except as to London; 18 G. 2, c. 33, except as to London; 24 G. 2, c. 43, in part, except as to London; 30 G. 2, c. 22, except as to London; 13 G. 3, c. 78; 34 G. 3, c. 64; 34 G. 3, c. 74; part of 42 G. 3, c. 90; 44 G. 3, c. 52; 54 G. 5, c. 109; and 55 G. 3, c. 68.

"It is monstrous to think that subjects of such importance in point of amount, of such intricacy as to fact, and such difficulty as to law, should be left to the decision of one man, be his talents ever so exalted, his learning ever so profound, his experience ever so extensive, his industry ever so unceasing: still, being but a man, liable to error, subject to human infirmities, his attention may not always be at his command; his thoughts may be wandering at the moment when some important point in the case is submitted to him by the counsel, and upon which the whole of the merits may rest. How much is the danger of all these possibilities increased, when we reflect that the Lord Chancellor is also a political character; that in the latter capacity he has other functions of a nature more urgent, and often not less important than those which his solemn duty of a judge calls upon him to discharge;-that his mind bowing under the weight of the grave deliberations, which are engendered by intricate and conflicting rights, is on a sudden to be distracted from the subject of his contemplations, and to be tormented by the feverish cares to which some unforeseen political event has given rise. Is it fitting is it consistent with the tone and spirit of other English institutions, that the head of the law should be withdrawn in the midst of the hearing of a cause, to attend the Cabinet? That he should be interrupted, perhaps at a critical moment, by the arrival of the ministerial box, conveying to his lordship the 3. Provided that nothing herein contained unpleasant intelligence that there is a split in shall extend or be deemed or construed to inthe Cabinet, or that there is some defection of terfere with any acts done or contracts or his party. My lord, the picture is almost lu- agreements heretofore made under the authodicrous, but it is not ideal, and its consequences rity of any of the said recited acts, or to extend are too serious for mirth. How much are all to prevent the suing for or recovery of any pethese difficulties increased, when we reflect nalty incurred by any offence committed that the Lord Chancellor may be a person en- against the provisions of the said recited acts tirely ignorant of the principles and practice or any of them previous to the repeal of the of a Court of Equity, and may never have been said acts in and by this act, or to prevent or in a Court of Equity before the day he entered defeat any prosecution commenced or to be it to take the oaths of office? Whatever differ- brought for such offence; but all penalties ence of opinion there may be in respect of a and forfeitures incurred may be sued for and Court of Equity, surely there can be no doubt recovered, and all contracts and agreements that more than one Judge should sit in the may be enforced, and all encroachments, nuiCourt of last resort.-Observe here an incon-sances, and other offences made or committed sistency, not less glaring than those I have be- previous to the repeal of the said acts, against fore pointed out. In the Courts of Common the provisions of the said acts or any of them, Law there are four Judges. How is it that the may be abated or prosecuted by the surveyor public have more confidence in the judgment appointed under this act, in the same manner of those Courts, and that there are fewer writs to all intents and purposes as if this act had of error than there are appeals? It is because not been passed. those Courts consist of more than one Judge, 4. Present surveyor to continue until a surand all the Judges are permanent. I trust Iveyor is appointed.

2. Not to revive repealed acts.

204

5. Interpretation clause.

Changes in the Law.

cessor or successors, or that the surveyor is dead, or has ceased to possess the qualification, or is or has become disqualified in any manner herein mentioned, or that he has neglected to act, or refused to carry into operation the duties imposed upon him by this act, it shall and may be lawful for such justices, and they are hereby authorized and required, by writing under their hands, at their next succeeding

6. That the inhabitants of every parish maintaining its own highways, at their first meeting in vestry for the nomination of overseers of the poor in every year, shall proceed to the election of one or more persons to serve the office of surveyor in the said parish for the year then next ensuing: provided that any outgoing surveyor shall continue to act until his successor shall be appointed, and shall be re-special sessions for the highways, to dismiss eligible, and may be re-elected, and shall in such surveyor so neglecting to act or refusing such case continue to act and remain in office, to carry into operation the duties imposed any thing herein contained to the contrary upon him by this act, and to appoint any pernotwithstanding; and in such case notice of son whom they may think fit to be a surveyor such election shall be given by the chairman to for such parish till the annual meeting then the person elected and to the outgoing survey-next ensuing for the nomination of overseers or provided that in any parish where there is or for the election of surveyors as aforesaid, no meeting in the year for the nomination of and with or without such salary, as to the said overseers of the poor, the inhabitants contri-justices shall seem fit and proper; and the buting to the highway rate shall meet at their usual place of public meeting upon the 25th of March, or if that should happen to be a Sunday or Good Friday, then on the day next following, or within fourteen days next after the said 25th of March in every year, to elect one or more presons to serve the office of surveyor for the said parish; which surveyor shall repair and keep in repair the several highways in the said parish for which he is appointed, and which are now or hereafter may become liable to be repaired by the said parish.

7. That any person living within the parish or any adjoining parish, and having an estate! in houses, lands, tenements, or hereditaments lving within such parish, in his own right or in right of his wife, of the value of 107. by the year, or a personal estate of the value of 1004. (such person not living within the parish being willing to serve the office), or being an occupier or tenant of houses, lands, tenements, or hereditaments (whether resident within the parish or within any adjoining parish) of the yearly value of 207. shall be eligible to be elected a surveyor for the purposes of this act Provided that no person who is now exempted by law from serving the office of overseer of the poor shall be compellable to serve the of fire of surveyor: provided that any person who may be chosen and elected to serve the said otice of surveyor may provide a sufficient deputy, such deputy to be approved of by the justices at a special sessions for the highways, who shall by writing under their hands testify

said surveyor, when so appointed, shall be invested with the same powers, and be subjent to the same duties, forfeitures, and penalties, as any surveyor elected by the inhabitants of any parish as aforesaid would have been.

12. That when a parish is situated in more than one county, division, or liberty, the surveyor so to be appointed as last aforesaid shall be appointed by the justices at a special sessions for the highways assembled in that coun-ty, division, or liberty in which the church of the said parish shall be situate.

13. Parishes may direct application to be made to justices at sessions for forming them into districts.

14. Justices at sessions may unite such parishes into districts, and select and appoint a district surveyor.

15. Names of parishes and of dictrict surveyor to be recorded, and a copy thereof sent to each churchwarden, &c. Parishes when united to form a district for three years, and until twelve months after any one parish shall give notice of intention to cease to form one of said district.

16. District surveyer to have power, &c. of surveyor, except in levying rate.

Salary of district surveyor how to be paid. 17. When parishes are united, a surveyor to be appointed to make rate, &c.

18. That in any parish where the population by the then last census, taken from the returns made to parliament, exceeds the number of five thousand, if it shall be determined by a majority of two-thirds of the votes of the vestrymen present at such meeting as aforesaid, to form a board for the superintendence of the 9. Surveyor may be appointed with a sal-highways of the said parish, and for the pur

their consent thereto.

8. Penalty on surveyor not acting when chosen.

ary.

10. Surveyor, on verifying his accounts, to state the name of his successor.

pose of carrying the provisions of this act into effect, it shall be lawful for the said vestry to nominate and elect any number of persons, 11. That in case it shall appear on oath to not exceeding twenty nor less than five, being the Justices at a special sessions for the high-respectively householders and residing in and ways, that the inhabitants of any parish have assessed to the rate for the relief of the poor neglected or refused to nominate and elect a of the said parish, and also liable to be rated surveyor or surveyors in manner and for the to the repair of the highways in the said papurposes aforesaid, or that the outgoing sur- rish under and by virtue of this act, to serve veyor, except he had been directed by the in- the office of surveyors of the highways for the habitants so to do, has delivered no statement year ensuing; and such persons to to be noof the name and residence of his or their suc.minated and elected as such surveyors or any

[blocks in formation]

pair the walls, banks, or fences of the raised causeways and raised approaches to any such bridge, or the land arches thereof.

venting nuisances to extend to county bridges 22. Powers for getting materials and preand roads at the ends thereof.

shall make the same in a substantial manner

three of them, shall and are hereby authorized to act as a board, and to be called "The Board for Repair of the Highways in the parish of as the case may be), and to carry into effect the powers, authorities, and directions in this act contained; and such board are hereby authorised to appoint a col23. That no road or occupation way made lector, or any number of collectors, of the rates to be made under the authority of this or hereafter to be made by and at the expense act, and also to employ a person of skill and of any individual or private person, body politic experience to act as an assistant surveyor to or corporate, nor any roads already set out or the said board, and also a clerk to attend the horsepath in any award of commissioners under to be hereafter set out as a private driftway or said board, and to keep the accounts and minutes of the proceedings thereof; such assist- an inclosure act, shall be deemed or taken to ant surveyor and clerk to be paid such reasonbe a highway which the inhabitants of any able salaries out of the said rates as the said parish shall be compellable or liable to repair, board shall determine; and upon such board unless the person, body politic or corporate, being so nominated and elected as aforesaid, of the public shall give three calendar months? proposing to dedicate such highway to the use all and every the powers and authorities given and created by this act, and granted to or vest-the parish of his intention to dedicate such previous notice in writing to the surveyor of ed in the vestry, and in any person or persons highway to the use of the public, describing its as surveyor, shall, for the purposes of the pa- situation and extent, and shall have made or rish so nominating and electing such board, be and the same are hereby declared to be vested and of the width required by this act, and to in the said persons so to be elected, or any the satisfaction of the said surveyor and of any three of them acting as such board as aforesaid; and such persons, or any three of them which such highway is situate in petty sessions two justices of the peace of the division in at a meeting to be convened for that purpose, assembled, who are hereby required, on remay and they are hereby authorized to nominate and appoint a fit and proper person to be ceiving notice from such person or body politic treasurer for the deposit of the monies to be or corporate to view the same, and to certify collected for the purposes of this act, and to tial manner, and of the width required by this that such highway has been made in a substantake from such person good and sufficient security for the monies to be deposited in his act, at the expense of the party requiring such hands as aforesaid; and all monies to be drawn view, which certificate shall be enrolled at the from such treasurer for the purposes of this quarter sessions holden next after the granting act shall be drawn by drafts or cheques to be thereof, then and in such case, after the said signed by the said persons so to be nominated highway shall have been used by the public, and elected as aforesaid, or any three of them, said person, body politic or corporate, for the and duly repaired and kept in repair by the at some one of their meetings to be held under this act, and such drafts shall be respectively space of twelve calendar months, such highway signed and entered in their books by the said shall for ever thereafter be kept in repair by the clerk to be appointed as aforesaid: Provided Parish in which it is situate: Provided neveralways, and it is hereby declared, that upon said the surveyor of the said parish shall call a theless, that on receipt of such notice as aforethe expiration of the year for which such board shall be elected as aforesaid, and before or on rish, and if such vestry shall deem such highvestry meeting of the inhabitants of such pathe day for the nomination and election of persons as surveyors under the authority of this way not to be of sufficient utility to the inact, the said board shall and are hereby direc-habitants of the said parish to justify its being ted to present to the vestry of the parish for which they shall have acted, copies of all their accounts, and also of the minutes of their proceedings during the preceding year.

19. Board may hire or purchase premises. 20. Penalty of 57. on surveyor, &c., for lect of duty.

kept in repair at the expense of the said parish, any one justice of the peace, on the application proposing to make the new highway to appear of the said surveyor, shall summon the party before the justices at the next special sessions neg-sion in which the said intended highway shall for the highways to be held in and for the divibe situate; and the question as to the utility as aforesaid of such highway shall be determined at the discretion of such justices. 24. Direction posts to be erected. 25. Power to use adjoining ground as a temporary road.

21. That if any bridge shall hereafter be built, which bridge shall be liable by law to be repaired by and at the expense of any county or part of any county, then and in such case all highways leading to, passing over, and next adjoining to such bridge shall be from time to time repaired by the parish, person, or body politic or corporate, or trustees of a turnpike road, who were by law before the erection of the said bridge bound to repair the said highways: Provided, that nothing herein contained shall extend or be construed to extend to exonerate or discharge any county or any part of any county from repairing or keeping in re

26 Surveyor to remove snow, &c. 27. Surveyor to make rate. Rate to be allowed by justices.

28. Surveyor may inspect rate-book, and obtain copies or extracts.

29. Form and amount of rate.

30. Surveyor to have power to enforce composition in certain parishes.

« AnteriorContinuar »