No. 311, NEW SERIES.-Vol. VI. No. 1250, OLD SERIES.-Vol. XXIV. DECEMBER 22, 1860. Price, with 2 Supplements, 28. Breed, Cook, and Eat it. Trübner & Co., Paternoster-row. This day, Second Edition, revised, 8vo., 15s., MAUDE AND POLLOCK'S LAW OF MERCHANT SHIPPING. Now ready, the Second Edition, greatly enlarged, price 30s. cloth, A COMPENDIUM of the LAW of MERCHANT SHIPPING. With an Appendix, containing all the Statutes and Forms of Practical Utility. By FREDERIC PHILIP MAUDE and CHARLES EDWARD POLLOCK, Esqrs., of the Inner Temple Barristers at Law. The Second Edition. In royal 8vo. H. Sweet, 3, Chancery-lane, Fleet-street. NEW EDITION OF HAYES AND JARMAN'S CONCISE HA Now ready, price 188., the Fifth Edition, greatly enlarged, of AYES & JARMAN'S CONCISE FORMS of WILLS; with Practical Notes. By THOMAS SMITH HE INSTITUTES of JUSTINIAN. With Eng- BADGER, M. A., of Trinity Hall, Cambridge, and of Lincoln's-inn, Barrister at Law; Reader on the Law of Real Property to the Four lish Introduction, Translation, and Notes. By THOMAS C. Inns of Court. SANDARS, M.A., late Fellow of Oriel College, Oxford. This day is published, in 12mo., price 10s. 6d. cloth, H. Sweet, 3, Chancery-lane, Fleet-street. Recently published, in 1 vol. royal Svo., price 17. 168. cloth boards, THE Ring the Statutes. With Notes, and the Forms required in Making, Administering, and Winding up a Company. V. & R. Stevens & Sons; H. Sweet; and W. Maxwell, Law Publishers. This day is published, in 12mo., price 9s. cloth, A TREATISE on BILLS of SALE, with an Appendix, containing the Registration Act. 17 & 18 Vict. c. 36, and Precedents, &c. By F. C. J. MILLAR and J. R. COLLIER, Esqrs., Barristers at Law. SECOND EDITION, revised and enlarged. By F. C. J. MILLAR, Esq. A V. & R. Stevens & Sons, and H. Sweet. To which are prefixed or appended all the Acts (or Portions of Acts) relating to Common-law Procedure, or the Trial of Issues of Fact in the CCOUNT BOOKS.-Simple forms and convenient Courts of Common Law, Chancery, or Probate, with the Rules of each sizes of ACCOUNT BOOKS, for large or small Practices, designed by Mr. G. J. KAIN, the Law Accountant, are, by permission, made and sold by WATERLOWS, Birchin lane, E. C. Number sold to the 30th November last, 1931. List free by post. See Law List, 1860, pages 826 and 827. Court respectively. Adapted to the use of Practitioners in all the Courts, and also to the use of Students. By W. F. FINLASON, Esq., of the Middle Temple, Barrister at Law, Editor of "The Common-law Procedure Acts, 1852 and 1854." V. & R. Stevens & Sons, Law Booksellers and Publishers, 26, Bellyard, Lincoln's-inn. This day is published, in 12mo., price 7s. cloth, AIN'S SOLICITORS' BOOKKEEPING, A BRIEF and PRACTICAL EXPOSITION of the KAIN'S Edition), with Rental System, 68., (post-free), and Improved Account See Law List, 1860, pages 826 and 827. No. 311, VOL. VI., NEW SERIES. LAW of CHARITABLE TRUSTS, with special Reference to the Jurisdiction of the Commissioners of Charities; containing also all the Charitable Trusts Acts. With Notes, and the Rules, Minutes, and Orders of the Court of Chancery and the Commissioners of Charities. By W. F. FINLASON, Esq., of the Middle Temple, Barrister at Law, Editor of "The Charitable Trusts Acts of 1853 and 1855." V. & R. Stevens & Sons, Law Booksellers and Publishers, 26, Bellyard, Lincoln's-inn. X X GAZETTES.-FRIDAY, Dec. 14. BANKRUPTS. Manchester-square.-Pet. f. Dec. 10. 1860. cotton-waste dealer, Dec. 28 at 12, Manchester, aud. ac.-H. Baker, Nottingham, lace manufacturer, Dec. 27 at 11, Nottingham, aud. ac.-Robert Kemp Philp, Great New-street, Fetter-lane, City, publisher, Jan. 18 at 12, London, div.-I. OWEN STURGIS, Upper Belsize-terrace, Belsize-lane, Hampstead, Middlesex, builder, Dec. 27 at half-past 1, and Jan. 24 at 11, London: Off. Ass. Johnson; Sol. Page, HENRY SAUNDERS, Brighton, Sussex, cabinet maker, Dec. 28 at half-past 1, and Jan. 26 at 12, London: Off. Ass. Johnson; Sol. Treherne, 17, Greshamn-street.-Pet. f. ROBERT MACK, Cork-street, Camberwell, Surrey, extractor of wool from rags, Dec. 28 at half-past 1, and Jan. 26 at 11, London: Off. Ass. Bell; Sol. Reed, 1, Guildhall-J. Barlow, Cobridge, Burslem, Staffordshire, earthenware Nov. 31. chambers.- Pet. f. Dec. 12. JAMES STANNARD, Newport, Isle of Wight, trader, Dec. Selke, Postern-row, Tower-hill, Middlesex, provision merOxford, confectioner, Jan. 4 at half-past 11, London, div.chant, Jan. 11 at 12, London, div.-Henry Edgar Morgan, Alfred Penny, Richmond-villas, Holloway, Middlesex, coal 8 at half-past 2, London, div.-Benjamin G. Goode, Sutton, merchant, and Lloyd's Coffee-house, City, underwriter, Jan. div.-Thomas Brookes, Birmingham, innkeeper, Jan. 7 at near Hounslow, Middlesex, brickmaker, Jan. 8 at 1, London, 11, Birmingham, div.-J. Merriman, Hyson-green, Nottinghamshire, lace manufacturer, Jan. 10 at 11, Nottingham, div. dealer, Jan. 7 at 11, Birmingham, div.-Christopher Denman, Ripley, Derbyshire, linendraper, Jan. 10 at 11, Nottingham, div.-John Lord, Sidney Aquila Butterworth, and Jan. 4 at 11, Leeds, div. sep. est. of Sidney Aquila ButterHoratio Butterworth, Shelf, near Halifax, Yorkshire, dyers, Leeds, div.-Henry Binning and George Dowson, Middlesworth.-Samuel Robson, York, hotel keeper, Jan. 4 at 11, borough, Yorkshire, shipowners, Jan. 4 at 11, Leeds, div. CERTIFICATES. before the Day of Meeting. CHARLES BRIDGER, Haslemere, Surrey, builder, Dec. To be allowed, unless Cause be shewn to the contrary on or JAMES WHITE, Chiddingstone, Kent, miller, Dec. 24 at Dec. 5. Thomas Bagnall Pickles, Great York-mews, Baker-street, Portman-square, Middlesex, cab proprietor, Jan. 8 at halfpast 11, London.-Lewis Jacobs, High-street, Whitechapel, Middlesex, shoe manufacturer, Jan. 4 at 1, London.-John Gladwin Dickinson and Joseph Auchterlonie Creighton, Aldermanbury, City, collar manufacturers, Jan. 18 at 11, London. -John Cooper, Great Yarmouth, Norfolk, printer, Jan. 4 at half-past 12, London.-Henry Robert Watts, Blackman-street, Borough, Surrey, wine merchant, Jan. 5 at 11, London.-James Thomas, Abingdon, Berkshire, builder, Jan. 4 at half-past 12, London.-Henry Edgar Morgan, Oxford, confectioner, Jan. 4 at half-past 11, London.-E. Hoile, St. Paul's-road, Bow-common, Middlesex, manufacturing chemist, Jan. 4 at 12, London.-Robert Willan, Glossop, Derbyshire, grocer, Jan. 18 at 12, Manchester.-James Llewellin, Hereford, saddler, Jan. 16 at 11, Birmingham.-Thomas Parkes, Kinver, Staffordshire, spade manufacturer, Jan. 16 at 11, Birmingham.—Wm. Hamilton Rutherford, Nottingham, grocer, Jan. 22 at 11, Nottingham. —George Batters, Nottingham, printer, Jan. 22 at 11, Nottingham.-Wm. Nicholls, Leicester, manufacturer of blue, Jan. 22 at 11, Nottingham. To be granted, unless an Appeal be duly entered. Julius Roberts, Grey-street, Poplar, Middlesex, engineer. -Frank Castelli, Bury-court, St. Mary-axe, commission merchant.-Isidor Selke, Postern-row, Tower-hill, Middlesex, provision merchant.-Robert Kemp Philp, Great Newstreet, Fetter-lane, City, publisher.-Oscar Rewman, Martin's-lane, Cannon-street, City, merchant.―Thomas Beesley, Ranelagh-road, Thames-bank, Pimlico, Middlesex, bottie crate manufacturer.-James Sherry, Portsea, Southampton, Snowcestershire, woollen flock dealer.-Joseph Thorpe, Shipley shoemaker. Thomas Plummer Dunn, Woodchester, Glou MATTHEW SOMERVILLE, Liverpool, joiner, Dec. 31 and under the firm of Morrow Brothers & Dennis, and now MEETINGS. John W. Dawson, Newcastle-under-Lyme, Staffordshire, cotton spinner, Jan. 30 at 11, Birmingham, last ex.-L. Lewis, New-street, and Hutchison-street, Gravel-lane, Hounds ditch, City, general trimming soller, Dec. 28 at half-past 11, and Wm. Slater, Bradford, Yorkshire, whitesmiths.-W. Mill Bridge, Glossop, Derbyshire, joiner.-W. Hargreaves Wilson, Thirsk and Northallerton, Yorkshire, currier.Robson, York, hotel keeper.-William Foxcroft and George Wellock the younger, Heckmondwike, Yorkshire, cotton spinners.-James Bell and Charles Wilson, Bradford, York shire, stuff merchants. First, it is to be observed that the statute puts a final end to real and mixed actions. By the 3 & 4 Will. 4, c. 27, s. 36, all real and mixed actions, and plaints in the nature of such, were abolished, except the writ of right of dower, writ of dower unde nihil habet, quare impedit, and ejectment, and plaints for freebench or dower. By the Common-law Procedure Act, 1852, (15 & 16 Vict. c. 76), ss. 168 et seq., the action of ejectment has been remodelled, and freed from the fictions by which it was encumbered. By the 26th VICE-CHANCELLOR WOOD'S COURT. By H. B. INCE, Barrister at Law. Merlins v. Haigh.-(Practice-Concise statementSufficient answer). Holden v. Weekes. —(Rectory-Waste-Patron— Account). EXCHEQUER CHAMBER. By G. J. P. SMITH, Barrister at Law. 1288 1288 Betts v. Menzies and Wildey.-(Patent-Infringement-Comparison of specifications-Patent for capsules, and a material to be employed therein) 1290 COURT OF QUEEN'S BENCH. By G. J. P. SMITH, Barrister at Law. Wiley v. Crawford.-(Marine law-Merchant Ship- .... ...... 1296 1298 8. 34) Loome, App., Bailey, Resp.-(Game-Sale of live pheasants-Conviction-1 § 2 Will. 4, c. 32, s. 4) 1299 section of the present act "no writ of right of dower, or writ of dower unde nihil habet, and no plaint for freebench or dower in the nature of any such writ, and no quare impedit, shall be brought after the commencement of this act in any court whatsoever; but where any such writ, action, or plaint would now lie, either in a superior or in any other court, an action may be commenced by writ of summons issuing out of the Court of Common Pleas in the same manner and form as the writ of summons in an ordinary action; and upon such writ shall be indorsed a notice that the plaintiff intends to declare in dower, or for freebench, or in quare impedit, as the case may be." And by sect. 27, "the service of the writ, appearance of the defendant, proceedings in default of appearance, pleadings, judgment, execution, and all other proceedings and costs upon such writ, shall be subject to the same rules and practice, as nearly as may be, as the proceedings in an ordinary action commenced by writ of summons; and the provisions of the Common-law Procedure Act, 1852, and of the Common-law Procedure Act, 1854, shall apply to the writ and pleadings, and proceedings thereupon." So that all actions now commence by a writ of summons-the valuable writ substituted by the Uniformity of Process Act, 2 Will. 4, c. 39-instead of the numerous and complicated modes of commencing actions which before that period disgraced our procedure. The idea of that writ seems to have been taken from the old subpoenas in Chancery and the Equity Exchequer, and it has placed our procedure on the natural and rational footing, that the first step towards enforcing the law against any person is by citing him to appear, and hear and answer what is alleged against him. Under this statute a plaintiff in replevin may, in answer to an avowry, pay money into court in the same way as defendants in other actions, without working a forfeiture of the replevin bond, (sects. 23 and 24); and the defendant in an action on a bond, with a condition or defeasance, &c., with a penalty; and the defendant in an action for detaining the goods of the plaintiff, may, by leave of the court or a judge, pay money into court, (sect. 25). 4. Procedure. Numerous acts of Parliament have been passed There are two other alterations of the form of pro- from time to time for restraining frivolous actions, or cess by this statute-one of which is, that the costs of bringing in a superior court actions which ought to writs of mandamus and injunction under the Common- have been brought before an inferior tribunal. To law Procedure Act, 1854, may be included in such writs, these an important addition has been made by the and payments enforced in the same manner as costs 34th section of the present statute, which enactspayable under a rule of court, (sect. 32); and the other," When the plaintiff, in any action for an alleged that "writs of injunction against a corporation may be enforced either by attachment against the directors or other officers thereof, as in the case of a mandamus, or by writ of sequestration against their property and effects, to be issued in such form, and tested and returnable in like manner, as writs of execution, and to be proceeded upon and executed in like manner as writs of sequestration issuing out of the Court of Chancery." (Sect. 33). 3. Pleading. action in The first section on this subject which attracts attention is the 19th, which enacts, that "the joinder of too many plaintiffs shall not be fatal, but every may be brought in the name of all the persons in whom the legal right may be supposed to exist; and judgment may be given in favour of the plaintiffs by whom the action is brought, or of one or more of them, or, case of any question of misjoinder being raised, then in favour of such one or more of them as shall be adjudged by the Court to be entitled to recover: provided always, that the defendant, though unsuccessful, shall be entitled to his costs occasioned by joining any person or persons in whose favour judgment is not given, unless otherwise ordered by the court or a judge." And the next enacts, that on the trial of such a cause, a defendant, who has pleaded a set-off, may obtain the benefit of it by "proving either that all the parties named as plaintiffs are indebted to him, notwithstanding that one or more of such plaintiffs was or were improperly joined, or on proving that the plaintiff or plaintiffs who establish their right to maintain the cause is or are indebted to him." The 21st section provides, that "no other action shall be brought against the defendant by any person so joined as plaintiff in respect of the same cause of action." The enactments in these three sections, which have the effect of bringing the system of the superior courts into accordance with that of the county courts, (see Pollock and Nichol's County Court Practice, 107), seem improvements on the whole; but great care must be taken in practice for the future to remove from the record at the proper time the name of any plaintiff which has been improperly inserted; otherwise a judgment obtained by the defendant will be not only evidence against, but conclusive on a person who really had nothing to do with the suit, and whose name was inserted in it either from carelessness or the desire to injure him. wrong, in any of the superior courts, recovers by the verdict of a jury less than 57., he shall not be entitled to recover or obtain from the defendant any costs whatever in respect of such verdict, whether given upon any issue or issues tried, or judgment passed by default, in case the judge or presiding officer before whom such verdict is obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought." The Court of Exchequer has held, in a case of Wright v. Hale*, reported in a recent number of THE JURIST, that this section has a retrospective ope In its general provisions this statute follows the example of the former Common-law Procedure Acts. It contains an interpretation clause, (sect. 39); a clause empowering the judges to make general rules for carrying the statute into execution, (sect. 37); a clause authorising new forms of writs and other proceedings, (sect. 38); provisions relating to the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham, (sects. 40, 41, 42); and a clause empowering the Crown to direct that all or any part of the act be extended to any court of record, (sect. 44). Finally, the statute came into operation on the 10th October, 1860, (sect. 43), and does not extend to Ireland or Scotland, (sect. 46). Having given this analysis of the third Common-law Procedure Act, we proceed to make a few remarks on its general character and spirit. First, it is to be observed, that one of the distinguish. ing features of the other Common-law Procedure Acts *See 6 Jur., N. S., part 1, p. 1212. Dec. 22, 1860. is very visible in this also-large discretionary powers Bacon's opinion is open to this objection, which has vested in the courts and judges. While the discretio frequently been made against it, there is, after all, some judicis is, to a certain extent, indispensable in every from the observation of his master mind, by making degree of reason in it, which may possibly be derived system of judicature, it has ever been looked on as a allowance for the very primitive state of equitable jurisdangerous engine, easily perverted to the purposes of diction in this country in his times, and perhaps also for mischief and oppression, and consequently to be nar- the defective and obscure expression of the observation rowly watched, and exercised with the greatest cau- itself. In the first place, Lord Bacon's observation was tion. "Optima est lex quæ minimum relinquit arbitrio directed to criminal as well as civil matters, and he had judicis; optimus judex qui minimum sibi." (Bacon, afforded by the Court of Chancery or the Court of Exnot in contemplation exclusively the equitable relief de Aug. Scient., lib. 8, c. 3, tit. 1, "Aphorism," 46). chequer. If his observation was found not to be appliThe infallibility and impeccability of judicial tribu- cable to them, so as practically to give them the power nals is, and ever must be, an Utopian dream. Judges of relieving against the decisions in civil or criminal are like other men, and as such perform their functions matters of the Courts of common law, it by no means not only better for the interests of the community, but follows from this that a portion of it is surplusage. It with greater advantage and ease to themselves, when consideration, what did Lord Bacon really mean? Is has frequently occurred to me, as a matter worthy of they are invested with no more power than is absolutely there any portion of the administration of justice in indispensable for the due discharge of those functions, this country to which his observation is applicable? Is and exercise them under the feeling of responsibility, the jurisdiction now exercised by the Home Secretary The powers conferred on courts and judges by the in reviewing convictions in grave criminal cases an former Common-law Procedure Acts, as well as those equitable jurisdiction such as that suggested by Lord Bacon? I am of opinion that it is. The prerogative conferred by the present act, (see, in particular, the of mercy, in spite of some obsolete old statutes, remains 13th, 28th, 29th, and 30th sections), are very exten- one of the brightest jewels in the Crown of England. sive, and will require the soundest discretion in their By a fiction of law, it is supposed, when a criminal exercise. And whatever may be urged in favour of offence has been committed, that the Crown is the investing such powers in a Court, which consists of several jured party; it is therefore, says Blackstone, only “reamembers, and discharges its duties under the eye of the sonable that he who is injured should have the power public, it is difficult to see what can be said in favour of forgiving." However quaint this little piece of soof vesting them in a single judge sitting at chambers, phistry may appear, there can be little doubt that it is where the two principal checks on judicial misconduct settled law that the Crown has an indisputable right of and carelessness-the presence of a jury and the publi- reviewing convictions in criminal cases. The only quescity of the proceedings-are removed; while even the tion, therefore, which remains is, whether this prerogacheck of appeal to the Court is in some cases taken tive should continue to be exercised, as it now is, through away altogether, and in all (as is well known to every the jurisdiction and at the instigation of the Home Sepractitioner) is a right exercised at great disadvantage.cretary, or whether there should be established a court The truth is, that the framers of the Common-law Pro- of criminal appeal. cedure Acts, perceiving that under the old law sufficient discretionary powers were not vested in our courts and judges, have, perhaps not unnaturally, run into the opposite extreme, and invested them with too large discretionary powers, to the great risk of the interests of justice. Secondly, this statute, as already remarked, has taken some further steps towards a fusion of law and equity. We have no desire to discuss that broad question on the present occasion; but it is admitted on all hands that there are cases, and some of those in the present statute seem among them, in which Courts of common law ought to be enabled to give complete equitable redress to their suitors, without driving them to the trouble and expense of filing a bill in equity. With these observations we will now take our leave of the Common-law Procedure Act, 1860. Correspondence. TO THE EDITOR OF 66 THE JURIST." SIR,-Lord Bacon was of opinion that Courts of equity should have the power "as well of relieving against the rigour of the law as of supplying the defect of the law*" Subsequent Chancellors, however, and in particular Lord Nottingham, defined the province of equity to be that of simply supplying the defect of the law. It seemed, indeed, rather difficult to maintain that Courts of equity could relieve against the rigour of the decisions of the Courts of common law, without at the same time rendering the former to some extent Courts of appeal from the latter. But although Lord * "Tractatus de Proferendis," &c., in the De Augmentis, Now, the arguments usually adduced by those who object to the present system are, that the jurisdiction of the Home Secretary is of a private character; that he has no power to administer oaths; that he has to deal with a question which does not require in particular the ingenuity of a trained mind, and which, after all, must be tried by common sense. Then it is said he is influenced by the Press; that the moment a notorious criminal is convicted a vast number of persons write letters to the newspapers; and that the whole of a criminal trial is systematically re-opened, with this grave objection, viz. that the persons who write to the newspapers, and for the newspapers, are under no obligation, as regular witnesses, to confine themselves to the exact truth, but that their testimony is usually, as in Dr. Smethurst's case, taken into consideration by the Home Secretary. They say that the tone of the Press is an uncertain criterion, and therefore a dangerous one; that in trials of a political character the Press may be biased, and take a one-sided view of the trial; and, still further, that the Home Secretary may himself be influenced by party motives. They urge that a tribunal of lawyers is the most approved means of trying a case a second time, and they ask, "Why should not we have a court of criminal appeal?" From these arguments I dissent, not alone on account of their fallacious and unsatisfactory nature, but also for other and important motives. It is quite clear, that inasmuch as the Home Secretary's jurisdiction is based upon the conscience of the Crown, it must be secret. By no known means of transmutation can the mind of the Sovereign be turned into a public tribunal. But reserving to the Crown its prerogative of mercy, what position can be assumed by a criminal court of appeal? Why, that of a tribunal instituted for trying a man twice for the same offence, |