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SPECIAL CASES AND DEMURRERS
CUR. ADV. VULT.
Walker v. Bartlett
| Anelay o. Lewis
Shepherd v. Conquest. Those marked thus * are Special Cases, and thus t Demurrers.
For JUDGMENT. +Fenton & an, o. Mayor, &c. *Clayton v. Fenwick of the Borough of Preston
Court of Erchequer. *Anderson & an. v. Baigent *Traherne & ors. v. Gardner
SITTINGS-HILARY TERM, 1856. +Thompson v. Hopper Bayly & an. v. Avery (Sp. V.)
Days in Term.
Banc. *Parker 0. Great Western *Nicholson & an. v. Gooch
Friday.. + Davies v. Morland & an.
Jan. 11 Motions and Peremptory Paper. Railway Co.
Saturday. 12 Errors, Peremptory Paper, & Motions. *Spanish & Portuguese Screw *Denton v. Great Northern
Monday. Steam-shipping Co. o. Bell Railway Co.
15 *Wood v. Same +Leedham v. Baxter & an.
Wednesday. 16 Special Paper. FOR ARGUMENT. +Leedham u. Baxter & an.
Thursday 17 Circuits chosen. +Burgoyne v. Cottrell *Chamberlayne v. Chamber
18 +Sturgis v. Caster(Stands over layne
19 Crown Cases. till case of Billiter v. Young, *Waters v. Monarch Fire and
21 Special Paper. in error, is disposed of)
22 + Easdown v. South-eastern +Scott & an. v. Reynell
Wednesday. 23 Special Paper. Railway Co. (Stands for *Branston & an. v. Mayor, &c.
25 *Weekman v. Meek +Gabriel & an. o. Langton
26 +Caswell v. Worth & an. tRowbotham v.
28 + Doel v. Sheppard & ors. *Gillespie & ors. v. Thompson
29 +Clutterbuck v. Marling & Staines, Wokingham, and
31 *Fawcus v. Sarsfield
Days in Term.
Monday .. Jan. 14 Middlesex, first Sitting.
18 London, first Sitting. For HILARY Term, 1856.
21 Middlesex, second Sitting. First Day. Andrews o. Elliott
25 London, second Sitting. Jacobs & an. v. Lawrence Reg. v. Local Board of Health Monday
28 Middlesex, third Sitting.
Newcastle-Thew v. Pybus In re Collins
Liverpool-Bell v. Buckley
Whittell v. Craw.
For ARGUMENT. Tyrrell & ors. 0. Connemera Same v. Uttermare & an.
ford Mining Co. of Ireland Same v. Churchwardens of St. Moved Hilary Term, 1855.
Graves v. Legg Same o. Same
Hernamant. Bow. Same v. Same
Moved Easier Term, 1855. Carmarthen-Jones v. Powell
Warwick-Austen v. Torre Wythes
Brownr.Overbury Staffordshire .. Reg. v. Heaton.
Crouch v. The Great Herts.-Lee v. Cardigan Anglesey...... Inhabitants of Llechylched.
Northern Railway Maidst.-Cooke v. Hopewell
Croydon-Ogle v. Tummons
Mann 0. General Court of Common Pleas.
Midd.-Lee v. Bissett
Stcam NavigaLond.- Oxford, Worcester,
tion Co. NEW TRIALS.
Strachan v. Barton Moved Mich. Term, 1855. Surrey-Johnson o. Warwick
Railway Co. 0.
Wiggetto. Fox Surrey-Douglas v. Watson Lond.-Holt v. Gamble
Winchester-Watling & an. Sussex-Simpson v. Lamb Midd.— Tomkinson o. Staight
Fenwick v. Nevill v. Ekless Stafford-Hulse v. Hulse Lond.- Everitt v. Tipping
Mackenzie o. Pooley Wells-Collins r. Bristol and Lincoln-. Rodgers v. Parker
Melville v. Titch
Wallace o. Blackwell Exeter Railway Co. Liverpool - Davies o. Jones
Glo'ster-Hingley o. Oxford, Bristol-Sympson v. Lloyd
&c. Railway Co.
Moved after the 4th Day of
Mich. Term, 1855.
Bedford Union Midd.-Morgans o. Clinton
Watson v. Lane. (Until after issue at law disSixth Day.
posed of) Browne v. Emerson Dawson v. Williams (Until
SPECIAL PAPER. Wood v. Governor and Co. of after action tried in Queen's FOR JUDGMENT. Wilson v. Martin (Sp. C., Copper Mines in England
The Earl of Lonsdale v. Rigg Same v. Rathbone part hd.
Firnie v. Songe (D.)
Broadbent V. Ramsbotham Petrie v. Nuttall (D.)
Phillips v. Briard (D.)
Marcom d. Bloxam (D.) Cawley v. North Staffordshire British Industry Life Assu. Same v. Bird
Same o. Same (Sp. C.)
Railway Co. (Ap.) rance Co. v. Ward (Ordered Baker v. Gray
Doe d. Hughes v. Probert Henderson v. Wawn (Ap.) to be amended)
Midland Railw.Co.o. Bromley Jervis v. Tomkinson (Sp. C.) Oakley v. Portsmouth and Morgan o. Parry (Ordered to Innes v. East India Co.
Ryde Steam Packet Co. be amended)
Friday, Jan. 18. Guardians of the Poor of Wy- (Part heard) Ribble Navigation Co. v. Har Tattersall v. Feamley
combe Union v. Guardians Koeber v. England (D.) greaves Kendall v. King.
of the Poor of Eton Union Nixon v. Green (D.)
Tollemache 0. London and | Kelsall 0. Tyler (Sp. C.). that it would give such prodigious patronage to the
South-western Railway Co. Wood v. Dwarris (D.) Crown; does your Lordship think that that is—I will (D.) Weld v. Baxter (D.)
not say a serious objection-an objection it certainly
is; but does your Lordship think it an insuperable obPEREMPTORY PAPER.
jection ?-I should say that it is an objection which To be called on the first Day of Term after the Motions, one might overcome. For example, I had a great oband to be proceeded with the next Day, if necessary, before jection formerly to county courts, for fear of the great the Motions.
increase of patronage of the Crown; but feeling the abCarr o. Acraman
| Tindall v. Stanbridge solute necessity of having some local judicature, I must Haynes v. Blunt.
say I got over that objection as early as 1830. These
deputies ought to be irremoveable. PUBLIC PROSECUTORS.
propose that the two Chief Justices and the Lord Chancellor shall have the power of removing them, in
case of negligence or misconduct ?-I consider that it (Lord Brougham's Evidence continued from p. 516).
should be so, decidedly. Dum bene se gesserint includes Mr. Philipps.-Do you think that the chances of not merely corruption, but inefficiency, or other defects acquittal generally increase or diminish with the in- -a very bad temper, for instance. feriority of the Bar: for instance, there are a few ses- Then I understand your Lordship to be clearly of sions left where no persons but attornies practise; in opinion that the appointment of attornies to digest and others there are barristers of not much experience; in methodise the evidence for the prosecution in certain others barristers of very considerable experience: how districts is clearly desirable ?-Clearly desirable, even do you think the bearing is generally as regards the if it stops there for the present. I look forward to its superiority of the court; is it in favour of convictions being possible by degrees to extend it, even to making or of acquittals?—I apprehend that it is in favour of it a complete system; but I have no hope of that convictions where there is a Bar attending, because the being done at present. prosecutions are better conducted.
Then your Lordship has no particular suggestion Therefore, in estimating the number of acquittals, further to make with regard to the machinery by which the inferiority of a particular Bar may have an effect this system shonld be carried into effect ?-Ñone whatin producing that result ?-It may, no doubt; but that ever. I think it ought to be done experimentally, want of a Bar is one of the great evils of local judica- tentatively, and that you should begin upon a moderate ture which one is feeling at every turn. All the pre- scale if you can. According to the scale which I sugsent system of county courts is exceedingly affected by gested, it would be the Central Criminal Court, which the want of a local Bar: that is the great difficulty. is as large as all Scotland in point of jurisdiction.
Mr. Phillimore.—May I take it that your Lordship Mr. Watson.-- Is your Lordship aware of the mode agrees with this answer of my Lord Denman with re- in which the prosecutions are conducted in Liverpool gard to the general state of the question—“Our pro- and Manchester by a person in the nature of a public cedure for the purpose of preliminary inquiry is open prosecutor?-In my time, on the circuit, the clerk of to great objection. The injured party may be helpless, the peace generally employed the same counsel to proignorant, interested, corrupt; he is altogether irre- secute and to draw the indictment. sponsible, yet his dealing with the criminal may effec- I believe in Liverpool there is a person in the nature tually defeat justice. On general principles, it would of a public prosecutor, who gets up all the prosecutions, evidently be desirable to appoint a public prosecutor ?" receiving a stated salary?-Just so; and in the West -Yes.
Riding, and in Durham and Northumberland, the same Has your Lordship any plan to suggest with regard counsel are always employed. to the machinery by which the evil may be remedied? There they are not paid by salary, I believe ?-No. -That is very difficult indeed; for the very crude The Lord Advocate of Scotland gave the following Acsketch of a plan which we had in 1834 amounted really to little more than this—let us begin and try ; let us
count of the Scotch System. proceed tentatively, and then see whether, wise by ex- The system proceeds upon the principle, that it is perience, we are not able to hit upon some mode which the duty of the State to detect crime, apprehend offenshall effect at least some of the good we want, and may ders, and punish them, and that independently of the not be liable to the objections; and then, after that, we interest of a private party. The Scotch system acshall be able to put it into shape. But at present the knowledges the right of a private party to prosecute; difficulty is very great of having in every county or but the duty of the public prosecutor is altogether irretwo counties in England a local public prosecntor. spective of that. The staff, if I may so call it, of the Would your Lordship think this system objection- public prosecutor is as follows:
The Lord Advocate is able, namely, not to have anybody resident except a the head of the criminal department; under him he district agent, for the purpose of collecting and me- has four advocates-depute, and these do the business thodising the evidence, to whom, in case of injury, the that a barrister properly does in criminal cases; their injured party might go; but to have chosen from the duty is to advise in the proceedings while they are going members of each circuit two or more gentlemen to fill on, in the collection of evidence in the country, and, the office of public prosecutor, and to undertake the when the evidence is completed, to draw the indictmanagement of prosecutions, not obliging those two or ment, and to attend the trial, and take the ordinary more barristers to reside always upon the spot, to which part in procuring a conviction. The Solicitor-General I think there would be many objections ?-I think there is also, in his criminal capacity, a depute of the Lord would be a very great advantage gained by even one Advocate; he holds a deputation from the Lord Advopart of your proposition being adopted, by having a cate as such. There is a Crown agent, who is the local agent to superintend the preparation of the evi. Crown attorney of the Lord Advocate, appointed by dence and the getting up of the case, as it were, which him, and subject to his orders, and removeable with the should be brought before the grand jury, even if it Lord Advocate; he is a political officer, and he goes went no further than that, the agent having the benefit out of office with the Lord Advocate; but the Crown of a locally resident counsel.
Office is permanent, and consists of a considerable numThe objection with which I have been most fre- ber of clerks, who are not changed in practice with the quently encountered, with regard to tlie appointment Government. The advocates-depute do go out with which is suggested to your Lordship, has been this, the Government; so that the political staff substan
tially consists of the Solicitor-General, appointed by very great advantage, because they methodise the law; the Crown; the advocates-depute, who are appointed and I think the whole criminal procedure is now reby the Lord Advocate; and the Crown agent. The duced into a very uniform and good system. . . means of detecting and punishing crime in the country Generally a leading attorney in the county town is the consist in the first place of the procurator fiscal; there procurator fiscal. .... There are four advocates-deis a procurator fiscal for each county, and a procurator ute. : : .. They are practising barristers, and reside fiscal for some of the larger boroughs. In the counties in Edinburgh. They are paid about 5001. a year. he is appointed by the sheriff; in the boroughs he is I think that in England it would be impossible to appointed by the town council; but he is directly under make the system work as it does in Scotland, without the orders of the Lord Advocate and his deputes. The having a special department for the purpose of supermode in which the system operates is this. The pro- intending the administration of criminal justice. At curator fiscal receives information that a crime has the same time, I think that a staff of advocates-depute, been committed; his duty is to make immediate in- as we call them that is to say, a staff of barristers in quiry; if any person is suspected, he applies to the London, but considerably larger --would be able to sheriff for a warrant to apprehend him; he does appre- overtake the work. . . . . There is no allowance, prohend him, and the party is taken before the sheriff for perly speaking, for witnesses of prisoners; it depends examination, and upon that occasion the declaration is very much upon the particular case whether assistance taken; the party is cautioned that he need not speak is given or not. I have it in my power either to direct unless he likes, and then he is asked by the procurator the procurator fiscal to include particular witnesses in fiscal, in the presence of the sheriff, any questions the Crown list; or if a representation is made of a very which seem to be material; and his answers are taken important witness or a very poor person, we make an down, and may be used against him in evidence. Then, arrangement with those acting for the prisoner, that in if there appears to be ground for an immediate warrant the event of its appearing to be a reasonable case after to commit, he may be committed at once; the usual trial, an allowance shall be made. .... I think it course is to commit him for further examination, and right to say, that while the Scotch system is remarkthen the procurator fiscal takes what is called a precog- ably well adapted, in my opinion, for the detection of pition—that is to say, he examines the witnesses whom crime, (much more so than a system of great publi. he can discover, not publicly, but privately; they are city), it seems to me essential, in order to make that not properly depositions, but they are statements taken system safe in a free country, that there should be a down by the fiscal, and signed by the witnesses; and if very direct responsibility. the case is at all of importance to warrant it, he sends ilr. W. Ewart.-Is it your opinion that it is of great this precognition to the Crown agent. The witnesses advantage to the administration of criminal justice in may be examined on oath; but this is not usually done Scotland that the Lord Advocate is a member of the unless the witness is reluctant. The precognition is | House of Commons ?-I think the system would be sent by the Crown agent to the advocate-depute of the quite intolerable without it, because it would put in district in which the crime has been committed; it is his power that which should not be in the power of his business to read it over, and if he is satisfied, may any man who is not responsible to Parliament. order no further proceedings; or he sends down to the Therefore you suggest, supposing there were such an fiscal to have the party committed until liberated in officer as a Minister of Justice, that he should be a due course of law, if that has not been already done, member of the Legislature?-My idea is that he should and proceeds to indict; but if the advocate-depute is sit in Parliament like any Secretary of State. not satisfied, he either sends it back to the fiscal for Mr. Phillimore.-In Scotland the tremendous power further investigation, or he comes to consultation with which exists arises from the fact, that practically the the Lord Advocate. We meet twice a week, and where Lord Advocate has the power of saying that a man the advocate-depute has any difficulty, he brings it shall or shall not be prosecuted ?-Not merely proseto consultation, and in that way, great uniformity is cution, but the power of restraining liberty. obtained, both in prosecuting and in the preliminary Supposing it is still practically left open to the agproceeding. Then the question is, where the party is grieved person to carry on his prosecution, though the to be tried. He may be tried before the sheriff, or public prosecutor refuses to assent to it, that reason before the circuit, or before the High Court of Justi- would not be so strong ?-No; and probably in Eng; ciary. If it is a small offence, such as an ordinary land it might operate as a check; in Scotland it would theft, the general course is to send the party to be tried not, because the system is so settled. by the sheriff, either with or without a jury, and then Mr. Watson.-Has any complaint ever been made the procurator fiscal attends and prosecutes. 'If, on the in times of political commotion of this power of the other hand, the party is an old offender, and he is Lord Advocate to prosecute ?-No doubt, in the poliindicted at the circuit, the advocate-depute attends. tical prosecutions at the end of the last century and If it is a serious offence, or committed within the home the beginning of this, there was a great deal of comcircuit, he is tried before the High Court of Justiciary; plaint about it. and in that way it appears to me that the machinery Mr. Walpole.-That might arise again in the event works remarkably well. How it would do upon a of political excitement running high ?-It might, and larger scale I can hardly say; but from Scotland being very probably would; but, at the same time, the strinlimited in extent, so far as my experience goes, I think gency of the Crown law has been a good deal relaxed it answers all the objects of such an institution very since then. At that time the judges chose the jury, well indeed. I can say, from my own experience, that the list was that of the judges, instead of balloting as it operates fully as much in the protection of innocent they do now; and there are various other improvepersons against unfounded accusations as it does in the ments. detection of crime; and for my own part I think that The juries have much greater power than they had ? the want of publicity in the first examinations, if you - Much more real power. have, as we have, a sufficient check in the superinten- Mr. Watson.- What is the number of the jury ?dence such as I have described, tends very much indeed Fifteen; and the majority decide. to the detection of the guilty; and I do not believe Mr. Phillimore.- I understand you to say that the that our procurators fiscal would think it any advan- Scotch system gives satisfaction to the people? - I tage to have the witnesses examined in public. That should say very great satisfaction, and the results neis the system which we follow. These consultations, cessarily lead to it. which we hold twice a week, have been found to be of
(To be continued).
INDEX OF PRINCIPAL MATTERS
VOLUME I. - NEW SERIES.
ACKNOWLEDGMENT IN CASE OF MORTGAGE, AGENT, PERSON DESCRIBED AS–(continued).
WITHIN THE 3 & 4 WILL. 4, c. 27, s. 28. Case principle on which the rule as to, is founded, not clearly of Stansfeld v. Hobson as to, 68
defined, 164 practical consequences of, ib.
how this may be accounted for, ib. facts of that case, ib.
opinion of Dr. Story as to, ib. questions raised in, 69
observations on, ib. argument for defendant in, ib.
dictum of Gibbs, C. J., in Ogle v. Alkinson, 165 observations in, ib.
meaning of, ib. principle of enactments, ib.
observations on, ib. how they ought to be construed, ib.
judgment of Littledale, J., in T'ilson F. Anderton, ib. construction adopted in the above case, ib.
remarks upon, ib. not warranted by the words of the act, ib.
cases cited by Story, 166, 167 or by its spirit, ib.
observations on, ib. illustrations of this, ib.
rule deducible from the cases, 168 difficulties suggested by, ib.
AGENTS, THEIR PERSONAL LIABILITY ON CON. ACTS, LOCAL AND PERSONAL, DECLARED PUB. TRACTS ENTERED INTO BY THEM. Review
LIC, AND TO BE JUDICIALLY NOTICED, of decisions as to, 128 PASSED IN THE SESSION 18 & 19 VICT., practical importance of, ib. 1854-55. List of, 61
difficulty of reconciling, ib. ADDRESS TO THE PROFESSION ON COMMENCING general principle, ib. THE NEW SERIES OF THE JURIST, 3
cases by which it is established, ib. proposed changes in the plan of conducting, ib.
difficulty of applying it in cases where both agent and as to advertisements and temporary matter, ib.
principal are named in the contract, ib. as to abstracts of statutes, ib.
case of Harper v. Williams, ib. increased facilities of reference, ib.
mode in which such contracts will be construed, ib. improvements in the reports, ib.
tests of liability, ib. as to the miscellaneous matter, ib.
case of Tanner v. Christian, ib. ADMINISTRATION OF CRIMINAL JUSTICE, EX- judgment in, ib. PENSE AND DELAY OF, THE ACT 18 & 19
cases in which it has been held that the agent was liable, VICT. c. 126, FOR DIMINISHING. Remarks
case of Norton v. Herron, ib. main object of, ib.
case of Healey v. Storey, ib. review of its provisions, 367, 368
case of Kennedy v. Gouveia, ib. no appeal given by, 368
other cases decided on the same principle, ib. certiorari will lie, ib.
case of Watson v. Murrell, ib. observations on sect. 22; 373
observations on, ib. AGENT, PERSON DESCRIBED AS, IN A CON.
cases in which the agent was held not to be personally
liable, 130 TRACT, WHEN HE MAY SUE AS PRINCIPAL. Review of cases as to, 140
case of Downman v. Williams, ib. two classes of cases, ib.
case of Lewis v. Nicholson, ib.
observations on, ib. distinction between, ib. rule by which the Courts have decided these cases, ib.
AGREEMENT TO TAKE A LEASE, LIABILITY OF case of Schmalz v. Avery, ib.
EXECUTORS UNDER. Review of recent cases as facts of, ib.
to, 499 judgment of the Court in, ib.
remarks upon, ib: case of Rayner v. Grote, 141
conflict of, 500 facts of, ib.
APPOINTMENTS IN 1855:judgment in, ib.
Anstey, C., Esq., Attorney-General for Hong-Kong, 408 grounds of, ib.
Baines, M. T., Esq., Q. C., Chancellor of the Duchy of Bickerton v. Burrell, ib.
Lancaster, 463 proposition laid down in, ib.
Bell, S. S., Esq., Puisne Judge, Cape of Good Hope, 40 facts by which it is supported, ib.
Bigge, A., Esq., Police Magistrate, Brighton, ib. examination of decision in, ib.
Campbell, J., Esq., Q. C., Charity Commissioner, 447 does not conflict with Schmalz v. Avery, ib.
Cloete, H., Esq., Puisne Judge, Cape of Good Hope, 517 observations on Rayner v. Grote, ib.
Colville, Sir J., Chief Justice at Calcutta, 441 doubt expressed in, as to the ground on which Bickerton Ebden, J. W., Esq., Puisne Judge, Cape of Good v. Burrell was decided, ib.
Hope, 40 it seems to be in accordance with the above cases, 142 Emerson, G. H., Esq., Solicitor-General, Newfound. case of Humble v. Hunter, ib.
land, 393 result of the cases, ib.
Fleming, V., Esq., Chief Justice, Van Diemen's Land, 40 on the right of, to set up the jus tertii against his prin- Forster, J., Esq., Secretary to the Commissioners in Lu
APPOINTMENTS IN 1855–(continued).
BANKERS, FRAUDS BY. Act of the 7 & 8 Geo. 4, c. 29,
as to, 439
origin of, ib.
BANKRUPT-LAW CONSOLIDATION ACT, CLAUSES
1855, as to, 222
BARBER, MR., THE CASE OF, 461
history of, 461, 462
injury inflicted on him, 463
evil of there being no remedy for, ib.
evils of re-opening judicial inquiry on extra-judicial
allowance to be made in some cases, ib.
instance of this in the above case, ib.
facts affecting him, 486
summing up of Alderson, B., ib.
memorial to the Queen on behalf of, ib.
substance of, ib.
position of Mr. Bates as shewn by, ib.
if the allegations are true, he ought to be pardoned, ib.
BEAMISH v. BEAMISH. Case of, as to the marriage of
a clergyman by himself, 455
BILL OF EXCHANGE OR PROMISSORY NOTE,
WANT OF CONSIDERATION FOR, ONUS OF
PROVING. Rule of law as to, 437
exceptions to, ib.
review of cases as to, 437, 438
principles established by, 438
LAWS RELATING TO THE PROCESS FOR
THE RECOVERY OF DEBTS SECURED BY.
Proposed changes in, 59
delay and expenses occasioned by, ib.
consequences of this, ib.
measures proposed to remedy them, ib.
scheme proposed by Lord Brougham, ib.
plan suggested by Mr. Keating, ib.
mode of proceeding where parties are not within the
advantages peculiar to these plans respectively, 60
reasons for preferring Mr. Keating's plan, ib.
illustrations of this, ib.
objections as to the necessity of a change, ib.
statement of them, ib.
nature of the contract, ib.
no injustice can accrue to indorsers, ib.
nor to acceptors, ib.
unjust claims may still be resisted, ib.
meeting of bankers and others for the discussion of this
subject; observations on, 67
main objections urged at, against the proposed measure,
leading arguments in support of, ib.
reasons urged by the Debtor and Creditor Law Amend.
ment Society against the proposed Bills of Ex-
change Bill, 97
members of the Select Committee of the Commons ap-
pointed on, 178
the act 18 & 19 Vict. c. 67, to facilitate the remedies in,
by the prevention of frivolous and vexatious de-
fences to actions thereon, 389
general effect of, ib.
writ of summons, ib.
indorsement of claim, ib.
expenses of noting may be recovered under, ib.
time for payment in order to stay proceedings, ib.
notice as to final judgment, ib.
leave to appear, how obtained, ib.