New Bills in Parliament.-Local Courts: Trials before Undersheriffs.

485

sons for any offence committed or alleged to week's notice shall have been given, either be committed within the jurisdiction of the personally, or by leaving the same at the place Central Criminal Court, which such justices of residence as of which the parties bound by are restrained from trying under the provisions such recognizance are therein described, to of an act passed in the fifth year of the reign appear before the court of oyer and terminer of his late Majesty, intituled an Act for estab-and gaol delivery, instead of the said court of lishing a new Court for the trial of offences sessions of the peace: Provided also, that the committed in the Metropolis and parts adjoin- judge who shall grant such writ of certiorari ing. or habeas corpus shall cause the party applying for such writ or writs, whether he be the prosecutor or party charged with such offence, to enter into a recognizance, in such sum, and with or without sureties, as the judge may direct, conditioned to give such notice as aforesaid to the parties bound by such recognizance to appear before the said court of oyer and terminer and gaol delivery, instead of before the said court of sessions of the peace respectively, and to do such other things with reference to the indictment, presentment, or person removed, as such court or judge shall direct.

2. Indictments found at the sessions of the peace to be removed.-And be it enacted, That it shall be lawful for any judge of one of her Majesty's superior courts at Westminster, acting under any commission of oyer and terininer and gaol delivery for any county, to issue, if he shall think fit, any writ or writs of certiorari or other process, directed to the justices of the peace acting in and for such county, riding, division, or liberty, or to the recorder of any borough situated within the said county, commanding the said justices and recorder severally to certify and return into the court holden under the authority of such commission of oyer and terminer and gaol delivery all indictments or presentments found or taken before any of the said justices of the peace or recorder, of any offences which after the passing of this act such justices or recorder will not have jurisdiction to try, and the several recognizances, examinations, and depositions relative to such indictments and presentments; and also, if necessary, by writ or writs of habeas corpus, to cause any person or persons who may be in the custody of any gaol or prison, charged with any such offence, to be removed into the custody of the keeper of the common gaol of the county, so that the same offences inay be dealt with, tried, and determined ac cording to law, under the authority of the said

commission.

3. Recognizances to be obligatory to appear at assizes. And be it enacted, That every recognizance which shall have been entered into for the prosecution of any person at any court of sessions of the peace, for any offence which after the passing of this act such court will not have jurisdiction to try, and every recognizance for the appearance, as well of any witness to give evidence upon any bill of indictment or presentment for any such offence, as of any person to answer our Lady the Queen for or concerning any such offence, or to answer generally before such court, shall, in case any writ of certiorari or habeas corpus be issued for the purpose of removing such indictment or presentment, or such person so in custody as aforesaid, be obligatory on the parties bound by such recognizance to prosecute and appear and give evidence and do all other things therein mentioned, with reference to the indictment or presentment or person so removed as aforesaid, before the justices of oyer and terminer and gaol delivery acting in and for that county, in like manner as if such recognizance had been originally entered into for prosecuting such offence, appearing, or giving evidence, or doing such other things before the said justices of oyer and terminer and gaol delivery: Provided always, that one

4. That this act may be amended or repealed by any act to be passed in this session of parliament.

LOCAL COURTS.-TRIALS BEFORE
UNDER-SHERIFFS.

THE bill which, some time ago, it was reported that the Lord Chancellor intended to bring in, relating to the trial of petty actions, has not yet made its appearance. It may be expedient, therefore, to consider the extent of business which any new If it be Judges would have to transact.

intended to substitute Local Courts for the Under-sheriffs of the several counties, the number of causes will, by no means, justify the measure.

From information we have received, on which we can fully rely, it appears that in actions brought for sums not exceeding 201., there are not two cases in one hundred which proceed so far as the writ of trial. Three-fourths are settled upon the mere issuing of the writ, and others at the next stage; so that the judicial business relating to actions under 201. is exceedingly small.

The expense of new courts for the purpose of trying actions of this kind, including the salaries of Judges, Registrars, and other officers, would be enormous. The fees already paid on writs of trial are quite sufficient, and instead of being increased ought to be diminished. then, are the expenses to be defrayed? How,

Perhaps it is contemplated to abolish the various County Courts, Courts of Request, the Borough and Hundred Courts, and to consolidate them all in one general Court in each district. In order to judge of the ef

486

Local Courts.-Certificate Duty and Income Tux.

fect of carrying out this supposition, it may | diture, that the great bulk of the practibe useful to state that there are

47 County Courts;

84 Courts of Request ;a

149 {

280

120{

400

tioners are still to be improperly burthened. We are for the profession at large, in all its branches, and shall keep alive the objec

Borough, Manor, and Hundred tion until the grievance be redressed.

Courts, &c.

Courts in which no business has
been transacted for several years.

These Courts might be consolidated; but then, how are the Judges and officers to be compensated? Besides, the suits in these petty Courts are for trifling amounts, generally under 40s., although the jurisdiction of many of the Courts extend to 57., and some to more. In these cases, no attorney appears. The matter in dispute is merely when the debt shall be paid, not what is the amount. It can scarcely be intended to transfer these cases to the same Judge who is to decide questions of law, and with the aid of a jury to try questions of fact, in actions for 201.

We have no doubt, however, that the Lord Chancellor will make himself acquainted with the whole case before he proposes any sweeping change in the exist ing Courts.

THE CERTIFICATE DUTY AND
INCOME TAX.

It will be observed by the proceedings in Parliament that the attorneys and solicitors have been aroused to some symptoms of resistance regarding the certificate duty. The impost has been so long submitted to, (subject to occasional grumblings, but without any combined effort to remove it) that nothing short of a new tax would have produced any effect. Individual members of the profession have always been loud in their condemnation of its injustice, but the subject of it has never, until now, been taken up by the body collectively. They see at length the effect of their supineness. The wealthier part may be still reluctant to put forward their strength, but we conceive that it is clearly the duty of the leading and influential members to use their best endeavours to throw off the unequal burthens which press on the practitioners in general. It is not because some of the over-grown firms feel the certificate duty

or the income tax as a small item- an insensible quantity-in their annual expen

This number must be much greater. ED.

The more we consider the supposi tion that the certificate tax is beneficial to the practitioners by excluding disreputable persons, the more we are convinced that the notion is fallacious. The tax, we are satisfied, not only offers no real check, but leads to great evils. Attorneys who cannot afford to pay the duty, practise in the name of others, contrary to express enactments; or, by unfair practice, or exorbitant charges, raise the means of taking out their certificates.

We say nothing to the barrier at the threshold by which 1207. is exacted, whether the youth lives to be admitted, or dies previously, or resorts to a more profitable calling; nor to the admission duty, (howbeit, we think both of these exactions unjust.) Let these be submitted to by way of concession to those who think that the "respectability" of the profession is to be maintained, not by the intellectual attainments of its members, but by the possession of a few hundred pounds.

We merely for the present contend, that when a man has paid large preliminary taxes, and served his time according to the ancient law, he should not be called upon to pay a poll-tax for permission to pursue his lawful calling-a tax not inflicted on the members of all the professions have a any one else. In France, we understand, patent, and every trade has a licence; and that a large revenue arises from this source. We have no doubt that the lawyers would willingly contribute to the state a personal tax, if it were levied, as well on other professional men, as on trades and callings in general. If the certificate tax be continued, it must be extended to others; and we think that much public advantage may arise by having every person, of whatever business or profession, duly registered, and all others prohibited from acting therein. The finance minister should look to this, and whilst he removes a manifest grievance, he may raise a larger income, and materially benefit the public security against fraud and imposture.

We extract the following statements from the Petitions of the Society of Solicitors in the Supreme Courts of Scotland, and the Attorneys

and Solicitors of Sunderland :-
The Solicitors of Scotland state-
"That your petitioners, and others, who act

The Certificate Duty and Income Tax.

as agents or solicitors before the Supreme "That your petitioners are content to subCourts of Law in Scotland, are not only liable mit to a fair and equal share of the burthens in common with their fellow-subjects to the of the state; but they beg respectfully to proindirect taxes upon articles of consumption, test against being made to contribute a greater but also to one tax, to which in so far as they proportion than the rest of her Majesty's subare aware, there is nothing analagous, appli-jects, which they cannot but consider as most cable to individuals belonging to any of the unreasonable and unjust." other learned professions.

488

The Certificate Duty and Income Tax.

sons who would be obliged first to desert the profession, would be those of small means and income-the weakest falls to the ground first; and this would particularly be the case, as the certificate duty presses more upon the attorney with small practice than upon the one possessing a large one. But would this thinning be desirable to, and for the benefit of, the public at large, and fair and just to those who are to be thinned?

We also request attention to the following remarks relating to the impolicy, as concerns the public, of improperly taxing the profession :

The petitions which have been presented to parliament for the repeal of the duty payable by solicitors for their annual certificates, have my most cordial concurrence, and I beg to offer some reasons which appear to me to justify the requisition of the petitioners, and to vindicate the propriety of their claims.

In the first place, it appears to me an illiberal tax upon a profession, which necessarily requires a great outlay of capital-capital often hardly earned, and ill-spared.

It is said to be for the public good, that small alehouse keepers should be lessened in number. Suppose it to be equally beneficial to the public, that attornies with small practice should be thinned. The operation of reducing by tax the alehouse keepers, and the It has often, Sir, been attributed to our attorneys, will be attended with very different country as one of its peculiar and characterconsequences. To be a publican, requires but istic excellencies, that its polity permits, nay, little capital; his education is not expensive, and invites the humblest possessors of talent to a little capital will set up a man in a small aspire to, and to enjoy, a position in the ranks trade. He, too, is generally of some other of its liberal professions. And when we concalling, either a small farmer, but mostly some sider the nature of the profession of the law, person bred to, and having left some other how its successful prosecution, and how, to a employment; when he, therefore, is driven great extent, the welfare of the community from his trade by taxes, his loss of capital is must depend upon the talent and intellectual but small, and he can resort to his other or resources of its members, it appears to me former calling for a living. The attorney, on that exorbitant taxation is ungenerous impothe contrary, on an average, does not enter his licy. No person acquainted with the profesprofession, exclusive of his early education, sion, need he told of the expenses and sacrifices under a capital of 10007., and confines himself which must necessarily be incurred in the preexclusively to his profession, by reason of its liminary education of attorneys. A heavy tax, requiring his whole time to get master of it. Tax in the shape of stamp duty, must be paid at all the attorney, and compel him to leave the pro- | times; a considerable, and in many cases a very fession; he must then give up his whole cap-high premium, a course of unremunerated laital without any chance of getting a living in another way. But before he does this, great mischief will be done to the public; however honest he may be, distress, a prospect of ruin, will compel him to resort to those means of living which are a disgrace to the profession, and a detriment to the good of society at large. He will be for ever stirring up his neighbours to litigation, and be stamped a pettifogging lawyer.

Then that it is unfair, after having expended a capital in entering a profession, to tax to such an amount, that those who have embarked, must leave their calling and lose their capital, no one for a moment will doubt.

It is admitted, however, that the profession is over-stocked, and that a thinning, to a reasonable degree, is desirable. It seems, however, the only way to attain that end, without doing injury to the public, injustice to the individual, and disgrace to the profession at large, is by taxing at the time of entrance into the profession; that persons may expend their money with their eyes open, and not (as would now be the case were an additional tax, as the proposed income tax, put on,) be entrapped into the loss of their education and money. But if there must be an increased tax, and it is imposed when entering the profession, (as a larger tax on admission would be,) it must not be too high, or the profession would get into another extreme. Those who were already installed, would enjoy a monopoly in defiance of the scale of fees, and in direct opposition to the public good,

F. F.

bour for five years, with various fees upon admission. These, Sir, appear to me sufficient drawbacks in the attainment of a profession, without imposing further obstructions to its benefits.

This certificate duty, operates with excessive severity upon those who are just beginning to realize the rewards of their long uncompensated exertions, and has a considerable tendency to deter much useful and efficient talent from the legal profession, and divert it into other channels doubtlessly less distinguished, but certainly less precarious. I do not say that this would be wholly obviated by the abolition of this duty, but certainly it affords a reason why the burthen should be somewhat alleviated. Nor do I suppose, that the ranks of the legal profession will ever present any great numerical deficiency, for wealth will never scruple to embark in a profession that confers social distinction; but talent may be deterred and obstructed, and hence the tax operates mischievously.

By the recent financial arrangements, attor nies in common with other professions, will be subjected to the operation of the income tax, and this affords an additional reason why they should be absolved from their certificate duty, as by the united pressure of the double taxation, they will sustain a burthen certainly heavier than that imposed upon any other profession. The pecuniary advantages resulting from the practice of the law, are not more than adequate to what fairness requires; why then should its gains be circumscribed by such heavy taxation?

F.

Removal of the Courts from Westminster.—Superior Courts: Rolls; Queen's Bench. 489

REMOVAL OF THE COURTS FROM

WESTMINSTER.

Kindersley and Wright for the petitioner, said, that it appeared by the affidavit of the respondent Corbett, that in January last, he sent a letter to the petitioner, with the bills of costs of himself and his late partner, together with an account current, and that in such letter he stated, that on payment of the balance due to himself and his late partner, he was ready to deliver up to the petitioner all papers belonging to him in their, or either of their, possession. There could, therefore, be no objection to an order being made in the

usual form.

We have received some letters on the subject of the removal of the Courts from Westminster to the neighbourhood of Chancery Lane, and regret to see that no progress has been made during the present session towards reviving the Committee of Inquiry. We are aware that the present Lord Chancellor, and one of the Law Officers of the Crown, are not favourably disposed towards Pemberton for the respondent, said, that the the measure; but we think this kind of pas-order must be confined to taxing the costs, sive opposition is owing to a want of suffi- for charges of usury and other similar charges cient knowledge of the details of the sub- were made by the petitioner with reference ject, and that the publication of the evidence to the items in the cash account, and they taken last session, under the superintendence could only be taken cognizance of in a suit which must be instituted for the purpose. of the then Solicitor General, would clearly establish the paramount utility of the mea

sure.

Of all the law reforms which have been made, or are still projected, we know of none that would be more beneficial both to the suitor and the profession, than the concentration of the Courts and offices in or near Lincoln's Inn Fields. We trust Sir Thomas Wilde will renew the committee, and bring the inquiry to a conclusion. Let us have the facts. Sooner or later the measure must be carried; but a little more energy is wanted. We know not who to blame, and trust that our next notice of the subject will be a satisfactory one.

SUPERIOR COURTS.

Rolls.

SOLICITOR AND CLIENT.-COSTS.

It is not a sufficient objection to an applica tion for the usual order to tax a solicitor's bill, to say that the bill does not contain taxable items; but if there have been various dealings and transactions between the client and solicitor, which have led to accounts irrespective of the account for custs, the Court will not extend the order to the taking of those accounts, but the client must file a bill.

A petition had been presented in this matter, praying for the usual reference to tax the bills of costs of Mr. Corbett, and his partner, against the petitioner, and for an account of all dealings and transactions between him and the petitioner, and that on payment of what might be found due to them from the petitioner, they might be directed to deliver up to him all deeds, papers, and writings, in their custody, or power, belonging to him. An objection was taken in limine to the bearing of the petition, on the ground of there being no common law or taxable items in the bill; but this the Court held could not be sustained.

Kindersley in reply, contended, that as the costs were mixed up, and formed part of the cash account, and they must all, therefore, be included in the reference; and he cited Horlock v. Smith, 2 Myl. & Cr. 495; and Ex parte Aikin, 4 B & Ald. 47.

The Master of the Rolls said, that prima for, it must be taken in the common form. facie, when an order for taxation was applied The Court had not jurisdiction to direct an account to be taken, except so far as the same might be connected with the bill of costs; but the common direction would embrace any account in which costs were included. Such a direction must be given in this case, and the costs of the petition must be reserved. Ex parte Corbett.-March 2, 1842.

Queen's Bench.

[Before the four Judges.]

INSOLVENT DEBTOR-EVIDENCE.

A voluntary assignment of property made by an insolvent, within three months before the commencement of his imprisonment, though made for the benefit of all his creditors, is within the 7 Geo. 4, c. 57, s. 32, and is void as against the assignee of the Insolvent Debtors' Court.

A copy of a vesting order made by that Court and sealed with the seal of the Court, but signed only by the deputy of the officer appointed to grant such orders, is admissible in evidence, under the 1 & 2 Vict. c. 110, ss. 46 & 105.

Trover for goods alleged to belong to the insolvent. The plaintiff was the provisional assignee of the insolvent; the defendant was a person to whom within three months before the commencement of his imprisonment, Wright had executed a deed of assignment of his effects for the benefit of all his creditors. The defendant pleaded first, not guilty, secondly, that the plaintiff was not assignee, and thirdly, that Wright was not lawfully possessed of the said goods, &c. The cause was tried before Mr. Baron Gurney, when evidence was given to shew, that the deed had been executed voluntarily, and the jury found that