The Jurist No. 78, NEW SERIES.-Vol. II. No. 1017, OLD SERIES.-Vol. XX. JULY 5, 1856. LAW PARTNERSHIP or EXCHANGE.-A Solicitor, residing within an easy distance of London, wishes to JOIN a LONDON SOLICITOR or FIRM of standing. The advertiser holds several appointments which he could introduce, and which, with his practice, could be easily carried on in London. Any Gentleman wishing to reside in a healthy part of the country would find this a desirable opportunity of doing so. A practice chiefly consisting of conveyancing preferred. Address, R. F., Mr. Moulton's, Law Stationer, Chancery lane. LAW PARTNERSHIPS confidentially negotiated in all parts of England, by Mr. L. LAIDMAN, Law Agent, No. 100, Chancery-lane, London. No commission charged unless a partnership effected. No entrance fee. Managing Clerks, suitable for every department, can be had-upon applicatión. 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Just published, by Authority, price 98. cloth boards, PROCEDURE in the STANNARIES of CORNWALL and DEVON. Containing the New Rules and Orders for Regu lating the Practice, both at Equity and Common Law, of the Court of the Vice-Warden of the Stannaries; with the recent Statutes for establishing and extending its Jurisdiction. Preceded by Observations on the Power of the Court in relation to Mining Associations and Partnerships in the Counties of Cornwall and Devon. London: H. Sweet, 3, Chancery-lane, Fleet-street; Stevens & Norton, 26, Bell-yard, Lincoln's-inn. PRICE 18. COOKE ON INCLOSURES.-THIRD EDITION. THE ACTS for FACILITATING the INCLOSURE of THE NEWS OF THE WORLD, Weekly Newspaper. · Price-Unstamped, 2d.; Stamped for Post, 3d. Sale, upwards of 155,000 Copies weekly. Its circulation is the largest in the world, thus offering immense advantages to Advertisers. Offices, 19, Exeter-street, Strand. CHANCERY FORM S.-Prepared and sold by JAMES SULLIVAN, 22, CHANCERY LANE. AFFIDAVIT. 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List of prices and directions for measurement, &c. sent on application. No. 78, VOL. II., NEW SERIES. Defendant to file Answer without Oath For Delivery of Bill and Papers, and to Tax To Discharge Lis Pendens To Enter Nunc pro Tune By Plaintiff to take Answer without Oath To Prove Documents To Refer Exceptions SOLD BY J. SULLIVAN, 22, CHANCERY LANE. GAZETTES.-FRIDAY, June 27. BANKRUPTS. JAMES BRAMWELL, Royal Exchange-buildings,_metal broker, July 7 at 2, and Aug. 5 at 1, London: Off. Ass. Edwards; Sols. Plews & Boyer, 14, Old Jewry-chambers. Pet. f. Jan. 17. HENRY HALL and CHESLYN HALL, New Boswellcourt, Lincoln's-inn, and Neasdon, Middlesex, cattle dealers, July 10 at half-past 11, and Aug. 15 at half-past 1, London: Off. Ass. Whitmore; Sols. Lawrance & Co., 14, Old Jewry-chambers.-Pet. f. June 12. JOSEPH TUCKER, Southampton, china dealer, July 7 at 1, and Aug. 5 at 2, London: Off. Ass. Lee; Sols. Parker & Lee, 18, St. Paul's-churchyard.-Pet. f. June 20. LOUIS GARDIE, Westbourne-grove, Bayswater, sculptor, July 7 at half-past 2, and Aug. 5 at 2, London: Off. Ass. Lee; Sol. Ody, 51, Lincoln's-inn-fields.-Pet. f. June 24. JOSEPH FREDERICK VARLEY, Oxford-street, tobacconist, July 7 at 2, and Aug. 11 at 12, London: Off. Ass. Pennell; Sol. Davis, 5, Arundel-street, Strand.-Pet. f. June 10. EDMUND RUDGE, Tewkesbury, Gloucestershire, tanner, RICHARD NELSON, Leeds, Yorkshire, tailor, July 10 and Aug. 8 at 11, Leeds: Off. Ass. Young; Sol. Granger, Leeds. Pet. d. June 24. SAMUEL ROGERSON, Salford, Lancashire, velvet trimming manufacturer, (trading under the firm of James Rogerson & Sons), July 7 and 30 at 12, Manchester: Off. Ass. Fraser; Sols. Owen & Co., Manchester; Faulkner, Manchester.-Pet. f. June 19. MEETINGS. John Inkersole, Sawbridgeworth, Hertfordshire, brewer, July 9 at 1, London, last ex.-T. Evans, St. James's-street and St. James's-place, Westminster, tailor, July 8 at half-past 11, London, aud. ac.-W. Turing Curtis, Great St. Helens, merchant, July 8 at 12, London, aud. ac.-Wm. Gascoine, Hitchin, Hertfordshire, butcher, July 9 at 1, London, aud. ac. -Wm. Phillips, Wallingford, Berkshire, builder, July 8 at half-past 11, London, aud. ac.-Harcourt Master Marley and Foster Reynolds, Old Broad-street, silkmen, July 9 at 1, London, aud. ac.-Wm. Schenk, Royal Exchange-buildings, Cornhill, London; Port Wallace, Nova Scotia; and St. John's, Newfoundland, merchant, July 8 at 12, London, aud. ac.John Brake the younger, Middleton, Northamptonshire, coal merchant, July 8 at 12, London, aud. ac.-Thomas Edward Irons, Reading, timber dealer, July 9 at 12, London, aud. ac. -Louis Adolph Huré, Albany-street, Regent's-park, cook, July 15 at 2, London, aud. ac.-Maximilian Lasker and Gustave Biller, New Basinghall-street, merchants, July 15 at 1, London, aud. ac.-George Frederick Owen, Lewisham, butcher, July 12 at 12, London, aud. ac.-Bernard Summers Ryder, Gough-street North, Gray's-inn road, paper stainer, July 15 at 12, London, aud. ac.-James Roberts, Blackwall, timber merchant, July 9 at 11, London, aud. ac.; July 18 at 1, div.-John Crow Twyman, Ramsgate, upholsterer, July 9 at 11, London, aud. ac.; July 18 at 1, div.-Jonathan Steele, Deptford, tar manufacturer, July 9 at 11, London, aud. ac.; July 18 at half-past 11, div.-Emile Dunin, Westbourneterrace, Hyde park, machinist, July 9 at half-past 11, London, aud. ac.; July 18 at half-past 11, div.-Isaac Firth, Manchester, victualler, July 10 at 12, Manchester, aud. ac.James Wovenden, Manchester, eating-house keeper, July 10 at 12, Manchester, aud. ac.-Hugh Hart, Hulme, Lancashire, timber merchant, July 9 at 12, Manchester, aud. ac.Wm. Threlfall, Addingham, Yorkshire, cotton spinner, July 21 at 11, Leeds, aud. ac. and fin. div.-James Thompson, Man 5 chester, gunpowder dealer, July 9 at 12, Manchester, aud. ac.; July 23 at 12, div. CERTIFICATES. To be allowed, unless Cause be shewn to the contrary on or before the Day of Meeting. Thomas Smith and Elijah Heafield, Stainsby-terrace, Stainsby-road, Poplar, builders, July 21 at half-past 1, London.-Joseph Archibald Joyce, Rood-lane, Fenchurch-street, merchant, July 18 at half-past 11, London.-Susan Stone, widow, Little Dean, Gloucestershire, innkeeper, July 22 at 11, Bristol.-John H. Blackwell, Smethwick, and George Bennet, Wombourn, Staffordshire, ironmasters, July 28 at 11, Birmingham.-Peter P. Buck, Jervaux Abbey, Yorkshire, cattle dealer, July 21 at half-past 11, Leeds. To be granted, unless an appeal be duly entered. George W. Vaters, Trowbridge, Wiltshire, currier.—Wm. Cruse, Glastonbury, Somersetshire, auctioneer.-John Griffith Goulstone, Knighton, Radnorshire, druggist.-James Reynolds Gummow, Wrexham, Denbighshire, builder.-R. Dickenson, Witcham, near Ely, Cambridgeshire, draper.-Augustus J. Phillips, Oakley-street, Chelsea, shipowner.-Charles K. Gill, Castle Hedingham, Essex, chemist.-Henry Collins, Ashford, Kent, carpenter.-Thomas W. Blott, Boongate, Peterborough, Northamptonshire, out of business. TUESDAY, July 1. BANKRUPTS. LEMUEL BROCKELBANK, Old Oak Common, Willes. den, late of John-street, Cambridge-heath, Middlesex, naphtha manufacturer, July 10 and Aug. 14 at 12, London: Off. Ass. Johnson; Sols. J. & J. H. Linklater & Co., 17, Sise-lane.-Pet. f. June 13. THEODORE DIEDRICH WILHELM CHRISTIAN SEYD, Finsbury-square and Wilson-street, Middlesex, private hotel keeper, (carrying on business under the name of William Seyd), July 14 and Aug. 18 at 1, London: Off. Ass. Nicholson; Sols. King & George, 35, King-street, Cheapside. Pet. f. May 21. ROBERT HUDSON, late of Great St. Helens, City, and now of Southampton-street, Strand, ship and insurance broker, (lately carrying on business with Ranson George Wilkinson, under the firm of Wilkinson & Hudson), July 14 at 12, and Aug. 11 at 1, London: Off. Ass. Nicholson; Sols. Norton & Co., New-street, Bishopsgate. — Pet. f. June 28. JOHN HEWITT the younger, late of Helvergate, Norfolk, and now abroad beyond the seas, miller, July 11 and Aug. 15 at 11, London: Off. Ass. Cannan; Sols. Lawrance & Co., 14, Old Jewry-chambers, Old Jewry.-Pet. f. June 21. HENRY AUGUSTUS HOPE, West-street, Smithfield, and Oxford-road, Islington, hay salesman, July Aug. 6 at half-past 1, London: Off. Ass. Stansfeld; Sol. Wood, 15, Bow-lane, Cannon-street West, City.-Pet. f. June 27. and Sol. EDWARD YOUNGE, Holt, Norfolk, stationer, July 16 at June 23. Sols. ISAAC THOMAS ROGERS, New Oxford-street, importer of American clocks, July 12 at 1, and Aug. 12 at half-past 12, London: Off. Ass. Edwards; Sol. Daniel, Albion. chambers, Adam street, Adelphi.-Pet. f. June 21. GEORGE JOSEPH GREEN, Birmingham, glass manufacturer, July 13 and Aug. 6 at 10, Birmingham: Off. Ass. Whitmore; Sols. Motteram & Knight, Birmingham.—Pet. d. June 30. THOMAS GOOLD, Birmingham, military ornament manu. facturer, July 12 at half-past 11, and July 31 at 10, Birmingham: Off. Ass. Whitmore; Sols. Wallington & Wright, Leamington; Motteram & Knight, Birmingham. -Pet, d. June 28. [For continuation of Gazette, see p. 309]. THE JURIST. LONDON, JULY 5, 1856. ...... 608 COURT OF QUEEN'S BENCH-(continued). Bennett v. Thompson.-(Sheriff's fees-Jury process Special jury Common-law Procedure Act, 1852, s. 108).... --- ...... COURT OF COMMON PLEAS. By W. PATERSON and W. MILLS, Barristers at Law. Revis v. Smith.-(Libel in an affidavit in a court of justice) EXCHEQUER CHAMBER. 613 614 By H. MACNAMARA and G. FRANCIS, Barristers at Law. ...... COURT OF EXCHEQUER. By W. M. BEST, Barrister at Law. Rackham v. Marriott. (Statute of Limitations · .... COURT OF ADMIRALTY. The Mangerton.-(Collision-Construction of the 296th 617 619 620 Table of Cases reported in The Jurist from April 12 to July 5, inclusive. open to some objection. At any rate, the task has hitherto been thought a difficult one; it has for a number of years engaged the attention of thinking men, who, like Lord Campbell, have pondered over it, and like We have now before us the report of the Select him have found themselves unequal to the execution Committee on Public Prosecutors*-the result of a of any practicable alteration. That learned judge, in large body of evidence from experienced witnesses who his evidence before the committee, stated that during have been examined before them. They propound as the whole of the seven years of his holding the aptheir unanimous opinion that the state of things dis-pointment of Attorney-General he had paid great closed in that evidence is very defective, and urgently requires amendment. The principal reasons which have induced them to come to this conclusion, and which have led to their suggestions for improvements, appear to be, first, the frequent failure of prosecutions in this country from the cases having been inefficiently prepared for trial, from witnesses being bought off by wealthy offenders, from misplaced humanity, and often personal delicacy towards parties, from bribery, from collusion, and from illegal compromises; secondly, the frequent preferring of indictments for perjury and conspiracy, for keeping gaming-houses and brothels, which are often set on foot with a view to the extorting of money, by which means the criminal law is perverted to very guilty purposes; thirdly, the assumption by policemen of the duties of public prosecutors; fourthly, the too great zeal which is exhibited by attornies employed by private persons, and sometimes by their counsel, to obtain the professional triumph of a conviction; and, fifthly, the opportunity which is given by the present system to a low class of attornies for getting into their own hands prosecutions, which are thereby mismanaged. The committee are moved by this state of things to propose an alteration of the system. We are at once ready to admit that they had a difficult task before them, and that it was almost impossible to propose any scheme which would not be * See the report, ante, p. 296. attention to the matter, with a view to seeing whether it was possible to introduce into England the system of a public prosecutor, but that there were most formidable difficulties which he was unable to surmount, and which he was afraid might still be insurmountable. The present Attorney-General also appears to feel great difficulty upon the subject. It will be remembered that some three or four years ago Mr. Phillimore, the chairman of the present committee, brought a bill before the House of Commons for the establishment of public prosecutors; but the scheme was generally supposed to be so impracticable, and the expenses so enormous, that it was almost immediately withdrawn. However, the learned gentleman persevered, and the present scheme is the result of that perseverance. The committee divide the subject into two parts-first, the preparation of cases for trial; secondly, the conduct of cases at the trial. They propose that the whole country should be divided into districts, which shall be as co-extensive as may be with the jurisdiction of the county courts, regard being had to the integrity of counties; and that to each of a certain number of such districts an agent, who must be an attorney of not less than seven years' standing, shall be appointed, with a salary of 700l. a year; and that it shall be the duty of these agents to take the necessary steps for the apprehension of offenders where no proceedings have been instituted, and for the taking them before a justice; and also, where proceedings have been taken, they are empowered to intervene, and conduct the prosecution to the close, and this, by leave of the Court, even where the prosecutor has employed an attorney of his own. They are to prepare and collect the evidence, to see that the indictment is properly framed and brought before the grand jury, to attend before them if required, to prepare the brief, and instruct counsel at the time of trial. It is then proposed that there shall be appointed for each circuit an advising counsel of not less than ten years' standing, who shall be the advising counsel for that circuit, to whom the district agent shall be able to resort in all cases of more than ordinary difficulty. These counsel are to be instructed to communicate with, and act under the directions of, the Attorney-General, by whom they are to be appointed, and are to receive a salary of 500l. a year, with liberty to carry on their ordinary practice. The committee then recommend that at the sessions, and at the assizes in ordinary cases, the choice of counsel should be left to the district agent, who shall deliver briefs to the counsel practising in the criminal court in each district, according to the best opinion he may be able to form of their fitness and competency, but with strict injunctions to the agent (and which it shall be incumbent upon the Attorney-General to see enforced) that the selection of counsel be honestly and conscientiously made, with a view to the public service, and not from any desire to promote the interest of any individual. In more difficult cases, in which it may be deemed necessary to employ a leading counsel, the advising counsel shall be employed ex officio. He is not to receive fees, but other counsel will still be so paid. Certain provisions are then proposed for the abandonment of prosecutions, payment of prisoners' witnesses, &c. Such is an outline of the report of the committee, and though fully inclined to give them all credit for good intentions, we are afraid that the scheme is an objectionable one. One evil involved in it is, that it proposes to create an almost complete monopoly of the business of the criminal courts. There is to be no case, whether light or heavy, which the district agent may not, if he chooses, take upon himself, whether the prosecutor wishes it or not, except where he has already employed an attorney; and even then the district agent is to be at liberty to intervene if he pleases, and, if necessary, to apply to the Court for leave to carry on the prosecution. So that practically it comes to this, that instead of the very considerable number of respectable gentlemen who act as magistrates' clerks, there will be one attorney in every county (for we cannot presume that the committee intend that one man should act for several counties) who is to do the whole, so that the magistrates' clerks will for the future have no business with the criminal courts, but will have to confine their attention to the proceedings at petty sessions. We cannot help thinking that this is somewhat unjust upon class of men of whom Lord Campbell speaks when he "There is, I really believe, almost universally, a respectable solicitor who acts as assistant and adviser to the magistrates." True, there is the business of managing the defences of prisoners, but that is a kind of practice which we know practically is but little carried on by the best class of country attornies. Under this system there will always be a suspicion of the says, a 5 district agent making business, against which the fact of his being paid by salary will be but a poor guarantie. We must say also that it is difficult to understand how the business at sessions or assizes is to be managed by a single individual who has so much to perform. He may deliver his bundle of briefs over night, but when the trials come on the next morning he will be wanted in the grand jury room and in the indictment room, and must attend to the working of his cases in two courts at once. The committee expect him to do all this, but every one who knows how necessary it is for the proper conduct of a case that the counsel should have some one at his elbow from whom he may get information upon points which spring up unexpectedly on cross-examination, will at once see how much inconvenience will arise from one man having to fulfil so many duties. Indeed, it seems impossible that they can be fulfilled effectively. Another serious objection is, that one man will have the power of patronising the Bar. We use the word advisedly: the grossest system of favouritism will exist in many counties in spite of the "strict injunctions" which are to be given to the agent, and which the Attorney-General is to see "enforced." We do not very clearly perceive how he is to know anything of the course of proceedings at the different sessions, Where there is only one court sitting, it will obviously be convenient for the agent to hand over all his briefs to the senior or most experienced counsel attending, or to two of them, where, as is generally the case, two courts are sitting at once. Such a system must be most injurious to the prospects of the junior members of the Bar, many of whom have no other field except sessions where they have a chance of practising their profession, or in any way of distinguishing themselves. They must be deprived of that share of the prosecuting business which they have been accustomed to enjoy, and thus sessions will cease to be a school for younger practitioners. Sir Alexander Cockburn seems to be aware of this, but says that he does not think such objections amount to very much in practice, because the whole of this scheme has existed in Ireland for many years. But we read in the evidence of the Right Hon. Joseph Napier, that the Bar "very rarely" attend sessions in Ireland. It is clear that many barristers will have no business at sessions except defences. We now come to the subject of the advising counsel. Such an appointment will also have a very injurious effect upon the junior Bar. Every one knows that there is a good deal of work at sessions which might be considered almost degrading if it was not regarded as a step towards the attainment of the better class of criminal business; but according to this scheme no one can ever get into that better class-we mean, leading in heavy cases-unless he is appointed one of the six or eight advising counsel, who are to do the whole of the leading business where two counsel are necessary. We can hardly believe that the committee intended that for the salary of 5001. a year the advising counsel, who we conclude is to be a gentleman who does not attend sessions, should be obliged to lead in every case, through the whole two or three circuits, in which it is advisable to have two counsel. It seems to us clear that a bar rister who is to do his duty ought not to be paid in that way; but however that be, the proposal, that in every some of the practices objected to, such, for instance, as the failure of prosecutions from witnesses being bought off. There will be the same facilities as now exist for this. Any defendant will have access to the witnesses precisely as he now has. If prosecutions are now trumped up by policemen before the magistrates, it may also be done before the district agent. He must have recourse to the police to obtain information as to offences having been committed, which information will never reach his ears if the offender is able to purchase their silence. It must be admitted that it is calculated to ensure prosecutions in some cases, in which, from the indifference of the person injured, no proceedings would at present be taken; but it may well be doubted whether some of those cases had better not be left in darkness, rather than that, by dragging forward transactions in which no public injury has been done, a respectable family may have a stain marked upon them which they have done nothing to deserve. We are quite willing to give credit to the committee for having carefully considered the subject, but we think that there are reasons for calling upon either House of Parliament to pause before embodying the report, as it now stands, in a statute, and thus making it the law of the land. Review. case where two counsel are to be engaged the advising counsel is to lead, appears to be extremely destructive of the interests of the Bar. Again: it may be asked, what is meant by being allowed to continue his "ordinary practice?" Is he to give prisoners his services when called upon to do so? Is he to give up business in the civil court in order that he may go 66 ex officio" into the criminal court to hold every leading brief there? These are questions which require consideration. We cannot but feel some compassion for those gentlemen of great abilities and great worth who will be deprived of all the leading prosecuting business in the different Crown courts in which they practise if this report should become the law of the land. Great stress seems to be laid by the committee upon the fact that prosecutions are managed by policemen. Very clear evidence as to the prevalence of this practice in Staffordshire and Somersetshire was given before the committee, who very properly found fault with it. Policemen and constables ought not to be allowed to interfere in any way, except in the apprehension of the prisoners, in the giving evidence upon the trial when they can do so, and in taking care that the witnesses are in attendance at the trial. They ought to be strictly prohibited from interfering in any way with the management of the case beyond this. The practice said to prevail in Somersetshire, of policemen coming to the sessions and delivering briefs to counsel without the intervention of an attorney, is not to be endured; in our opinion it incapacitates such policemen from giving fair evidence in the case. We also quite agree that it is very objectionable that low attornies should be allowed to hang about the courts, and get instructions from prosecutors to instruct counsel, in cases for which they care nothing, and of which they know nothing; but the cure for this is easy. The prosecutors generally are glad to know that the magistrates' clerk will take care that they shall have the assistance of counsel at the trial. We think that all prosecutions might be fairly prepared for trial by the magistrates' clerks, and in the counties with which we are best acquainted it is so. Great objections are entertained by many persons to the scheme on the ground of the tendency to destroy the independence of the Bar. It is said that where public prosecutors are appointed by the Crown, or by the Attorney-General, they are obliged to do the work which they are ordered to do, and may thus become too subservient to Government. It is somewhat difficult to see why the Attorney-a surface, and being filled with the decisions of every General should have the appointment of the advising counsel. It is said, indeed, that it ought to be so because they are to be his assistants, and to act under his immediate control; but that is no reason at all, unless they are to be removeable with him, which is not the case. The committee deserve great commendation for proposing to break through that which has always been a great imperfection in the administration of criminal justice in this country, namely, the necessity for a prisoner bringing his witnesses down to the place of trial at his own expense, and without properly attainable means for enforcing their attendance. We have now given a sketch of the proposed scheme. We think it objectionable in some respects, principally in regard to its practical working, but also we do not see very clearly how it is to prevent the occurrence of A Treatise on the Law of Damages, comprising their THIS is a book that has been long wanted. Court in every State of the Union. Massachusetts and The author in his Preface, after paying a well-me one of the great difficulties which he himself has met with has been to distinguish between the right to recover and the amount to be recovered. "The line," he says, "which divides these two branches of law some *Mr. Mayne's book contains 391 pages; Mr. Sedgwick's 650 pages. |