A Defence of the Lord Chancellor. - Low of Debtor and Creditor. 195 result of this scrupulous non-interference of clauses which have been added by the 6 Lord Brougham has been, that nine-tenths of these gentlemen having the most hold over the 10'. constituency, who have been appointed Country Commissioners of Bankrupts, are violent opponents of the present govern Committee. As to Judgment Debts: The Commissioners for the execution of ment. But nothing to do politics; my sole aim is to vindicate those legal reforms defendant's property to a trustee for the of the Chancellor, which the critic has so violently and so unfairly assailed." The author of the "Refutation" then discusses the mode in which the Chancellor has exercised his patronage, including the appointment of Mr. Adam to the Accountant Generalship, which he asserts was repeatedly tendered to Mr Abercromby. Some less important subjects are next disposed of, and the Pamphleteer (secundus) then adverts to the Arrears in the Lord Chancellor's Court." It is stated that there were on the 14th of December last sixty-three appeals inserted in the Lord Chancellor's paper for hearing, of which none appears to have been set down more than eighteen months, and ten have been entered since the commencement of the present Sittings; and that on Lord Brougham's taking his seat on the Chancery Bench there were 103, of which many had been set down two years and a half. The author concludes by advocating the separation of the judicial from the political functions of the Chancellor; and declares that his opinion on the subject is known to many. (p. 112). We have now endeavoured to give an impartial account of this part of the controversy, and regret only that our space has not allowed us to insert some extracts, which we had marked for the purpose. the act are to be empowered to assign the payment of the judgment debt. Clause A. The trustee is to dispose of the property in discharge of the plaintiff's judgment, and to pay over the surplus, if any, to the defendant. Clause B. The property assigned to the trustee, in case of death, removal, or resignation, is to vest in his successor. Clause C. As to Petitioning Debtors: The person appointed by the Commissioner to be empowered to break open petitioning debtor's house, shop, &c. and seize property. Clause D. Commissioners for executing the Act : The Commissioners of Bankrupt are to be Commissioners for executing the act in the districts for which such Commissioners are appointed, and any two of them are to constitute a Court for hearing and determining all matters under the act. Clause E. Abolishing Arrest : Prisoners in custody on mesne process to be entitled to their discharge, subject to the provisions of the act as to arrest for fraud. Clause F. on Prisoners in custody in execution judgments to be also entitled to their discharge, subject to the other provisions of the act. Clause G. But prisoners charged in execution are not to be discharged from the debt or ALTERATIONS IN THE LAW OF damages, but such debtor and his property DEBTOR AND CREDITOR, AND ABOLISHING IMPRISONMENT FOR DEBТ. A reprint has just been made of the Solicitor-General's Bill, as amended in the Committee of the House of Commons, "for facilitating the Recovery of Debts, the Prevention of Frauds by Debtors, the Relief of Debtors willing to make Cession of their Property for the Payment of their Debts, and abolishing Imprisonment for Debt, except in Cases of Fraud "a This is giving "note of preparation" for the approaching Session; and we proceed to lay before our readers the substance of the new a See the former Bill, vol. 6, p. 148. are to be liable to the proceedings provided by the act. Clause H. The Judges of the Superior Courts of Common Law are authorized to make rules and regulations of the Courts for carrying the act into execution. Clause I. PAROCHIAL REGISTRATION. HISTORY AND PRESENT STATE OF THE LAW. Our readers are aware that a Select Committee was appointed by the House of Commons, on the motion of Mr. Wilks, to consider and report on the general state of parochial registries and the laws relating to them, and on a general | the subject; but in 1652 a law reform comParochial Registration. Commentaries on the New Chancery Orders. registration of births, baptisms, marriages, deaths, and burials. A Report of this Committee has just been printed, and the importance of the subject induces us to lay the substance of it before our readers. We shall for the present take the first part of the Report, which comprises the history and present state of the law of parochial registration. In September 1538 (30 Henry VIII.), an injunction was issued by Thomas Lord Cromwell, Lord Privy Seal and Vicegerent to the King. It directed a book and coffer, with two locks, to be provided in each parish, and ordered the parson, weekly, before the wardens, to write and record in the book all the weddings, christenings, and burials made the week before, and subjected him for neglect to a fine of 3s. 4d., to be employed in the repairs of the church. In 1547 a similar injunction was issued by Edward VI., only directing the penalty to be employed towards the poor man's box of the parish. In 1559 (1 Elizabeth) a nearly similar injunction was issued, only that the penalty was directed to be equally divided between the poor-box and the repair of the church. In 1562-3 Parliament first interfered. Then a bill was introduced into the House of Commons, and read, "To erect an office of registership, to be kept in every diocess;" but, through the interposition of the clergy, did not eventually pass. In 1590 Lord Treasurer Burghley perceived the importance of an office for a general register of all the christenings, marriages, and burials, within England and Wales. Among the objects and advantages of the establishment, he enumerated "that there should be yearly delivered a summary of the whole, whereby it should appear how many christenings, weddings, and burials were every year within England and Wales, and every county particularly by itself, and how many men-children and women-children were born in either of them, severally set down by themselves." He accordingly recommended the measure to the Queen, and propounded it to the Archbishop of Canterbury, by whom its progress appears to have been estopped. In 1597 (39 Elizabeth) a constitution was made by the archbishop, bishops, and clergy of the province of Canterbury, and approved by the Queen, declaring the importance and utility of parochial registers (quorum permagnus usus est), and enjoining their more careful preservation, directing a copy to be sent yearly within a month after Easter to the register of cach diocess, to be received without fee, and faithfuliy kept; and threatening punishment to all by whom the precept was infringed. In 1603 (1 James 1) another and somewhat similar mandate was issued, and endeavoured to insure accuracy in the entries, and their careful preservation. During the civil commotions in the reign of Charles I, no special attention was directed to mittee was appointed. It included the most eminent lawyers and statesmen, and they prepared a draught of a bill, which, in 1653, was adopted by the Parliament. That act was entitled "An Act how Marriages shall be solemnized and registered, and also for a Register for Births and Burials." It first introduced the registers, not of baptisms, but of births. It treated marriage as a civil contract, to be solemnized before a justice of the peace. It directed that for the entry of all marriages, and "of all births of children, and burials of all sorts of people, within every parish," the inhabitants of every parish chargeable to the poor should choose "an able and honest person, to be called the Parish Register," sworn before and approved by a neighbouring magistrate. This officer, it provided, should have the keeping of the register book for three years, and longer, unless removed by the parish; and that he should be paid 12d. for every entry of marriage, and 4d. for every entry of birth and of death. it also enacted, that small parishes, or places not within any parish, might be united or added to other parishes by the justices at their general sessions, and that they should then be accounted one parish as to the matters only of the act; and that for such parishes and places so united one register should serve; and also provided, that all subsisting register-books should be delivered, to be kept as records by the registers appointed under that act. Until after the Restoration, the provisions of this act were found perfectly practicable, and were carried into useful effect; and in very many parishes, notwithstanding all the prejudices against the measure, the books continue to be fairly preserved. In the reign of William III. several acts were passed to enforce, not a registry of baptisms but of births, and also of marriages and burials, as a source of revenue to the state; for by an act 6 & 7 W. 3, c. 6 (1694), an act granting his Majesty certain rates and duties on marriages, births, and burials, the clergy were compelled, under a penalty of 1001. for neglect, to take an exact and true account, and keep a register of all persons married, buried, christened, or born in their respective parishes, and the collectors, and all persons concerned, were to have free access to them without fee or reward. Under this act, it will be perceived that the clergy were compelled to act gratuitously, as civil officers, and to collect information of the births of all children born within their parishes, to whatever religious denomination the parents might belong, and quite irrespective of any baptismal right performed by them, or by any ministers dissenting from their church. This duty having been found too onerous, and information as to births being unattainable by clergymen, since the parents by concealment eluded payment of the tax, the act 7 & 8 W 3. c. 35, (1695) provided that the parents of every child should, within five days after birth, give notice to the clergyman of the day of the birth of such child, under a penalty of 40s.; and the clergyman should, under a like penalty, take an account of and keep aj distinct register of every child born and not christened, for doing which the parents were to pay 6d. to him. Ultimately this tax was discontinued; but in 1783 (23 G. 3. c. 67) a stamp duty of 3d. was imposed on every entry of burials, marriages, births, or christenings, to be demanded by each clergyman from the undertaker or parties married, or the parents of a child whose birth or christening was registered: and by the 25 G. 3. c. 75, the act was extended to dissenting ministers, whose registrations of births or baptisms or burials were so recognized by law. In 1794, however, this act was also repealed, and at present the parochial registries for baptisms and burials are regulated by the act 52 G. 3. c. 146, passed in 1812, and commonly called Sir George Rose's Act. This act is entitled, "An Act for better regulating and preserving Parish and other Registers of Births, Baptisms, Marriages, and Burials in England." It directs (sec. 1), officiating ministers to keep registers of public and private baptisms, of inarriages, and of burials. (Sec. 2.) King's printer to transmit to each parish a printed copy and register books, adapted to forms prescribed. (Sec. 3.) Registers to be kept in separate books, and signed within seven days after each ceremony was performed. (Sec. 4.) Certain forms to be observed where the ceremony was not performed in the parochial church or church-yard. (Sec. 5.) Register books to be kept by officiating minister in an iron chest, provided at the parochial expense, and whence they may not be removed. (Sec. 6.) Annual copies to be made, and by the officiating minister verified and signed, and by the churchwardens attested. (Sec. 7.) Such copies to be yearly transmitted to the registrars of each diocese by the churchwardens, by post. (Sec. 8.) Diocesan registrars to report to the Bishops yearly thereon. (Sect. 9.) In case of neglect by officiating minister to verify and sign, churchwardens to certify his default. (Sec. 10.) Where there are no churches, a memorandum of each baptism and burial to be delivered to the officiating minister of an adjoining parish. (Sec. 11.) Letters containing annual copies to go by the post, and free from postage. (Sec. 12.) Annual copies transmitted to registrars to be safely deposited and secured from damage or destruction by fire, and carefully arranged for reference; and the registrars to cause alphabetical lists of all persons and places to be made, and kept, and to be open for search. (Sec. 13.) A report to be made before the 1st March, 1813, to the Privy Council, of the state of every place where copies of parochial registers and wills are preserved, and their protection from damp and safety from fire. (Sec. 14.) Persons making false entries or wilfully defacing or destroying register books, to be guilty of felony, and transported for fourteen years. (Sec. 15.) But punishment not to attach for accidental errors. (Sec. 16.) Accustomed fees to continue. (Sec. 17.) Annual 197 (Sec. 18.) One half the penalties levied under the act to go to the informer, and the remainder either to the poor of the parish or to such charitable purposes as the Bishops direct. (Sec. 19.) List of all extant register-books to be transmitted by officiating minister before the Ist of June, 1813, to diocesan registrar. And (Sec. 20) the provisions to extend to cathedrals and collegiate churches, and to extraparochial chapels. On this extraordinary statute the whole system of parochial registration at present depends: and that it is extraordinary will appear, if reference be made to the title, which includes a register of births, for which no provision was framed, and which cannot legally be kept; to the clauses directing the labours of receiving and arranging and indexing all the copies of registers, and making reports to the bishops by the diocesan registrars, for which no compensation is awarded; and to the clause for appropriating penalties which are not imposed, and of which the only one directed is transportation, which no informer would desire to share, nor any charity to partake. Connected with the statute law, are cases which should not be unknown. Those cases have decided-1st, that entries of births made by clergymen, on the representation of parents, in registers of baptisms, are not evidence of birth, and that, as evidence, the entries cannot be read; 2d, that entries in register-books occasionally made up from memoranda and from day or rough books, used in many parishes, cannot be received in evidence; and 3d, that while copies from parish registers may be evidence without the production of the originals, as the books are in the nature of public documents and records, yet copies of Dissenters' registers of birth or baptism are not evidence, and that their registers of burials are no evidence of deaths. Such being the present state of the law, it was evidently full time, amongst other reforms (many of them of but little pressing or general importance), that the Legislature should turn their attention to a subject which concerns, more or less, all classes of society, and on which a material branch of the due administration of justice depends. We shall advert to the other parts of the Report at the first op portunity. A PRACTITIONER'S To the Editor of the Legal Observer. You kindly imparted to me a portion of copies not to be subject to any stamp duty. your sphere of "Observation," on the No 198 Commentaries on the New Chancery Orders. vember batch of Chancery Orders, as to which which is that the whole system is now avowedly I spoke plainly, for the reasons then assigned. Allow me the same liberty as to the December series of corrections and emendations of the preceding month's sins of omission and commission. T. B. Q. Before entering on the details of the New Orders, I must observe, that all I see strengthens a conviction I have long entertained, that the work of Chancery Reform is and will continue to be conducted without plan or system; worse than it ever was, so that the best thing To proceed, however, with the subject more that it is in inextricable confusion-productive, of further Parliamentary alterations contem and likely to be productive, of at least as much harm as good; and that it ought, without loss of time, -before the mischief gets chronic-to be put into the hands of a new and very limited commission of independent but experienced men-who should begin by fixing on some determinate general plan of operations, from the top of the machine to the bottom, and proceed to give us a consistent and comprehensive series of details, so announced as to give ample time for consideration and practical comment before the period of operation; and so that practitioners might once for all know what is to be done, instead of being harrassed and tantalized by incessant changes and ill digested schemes;-some of them (as in the case of the new payment of the officers, admitted by the very movers of the law to be mischievous instead of immediately before us. looks at a batch of new Orders, it always ap- beneficial;-altered as soon as propounded:- by some means, apparently by chance, first often on the face of them blundering or inefficient for want of practical knowledge;-and always meeting partial, unconnected, and frequently discordant views;-so that one shilling's worth of new printed practice is just stored in the practitioner's memory, as it is rendered burnable by the issue of a new call on his pocket and faculties. I see no hope of better things but from such a new reference to competent authorities; when the parties affected can be heard before, instead of after, their duties and interests are altered; and I do hope some one will in Parliament move an address for a commission accordingly. As to continuing to confide the work to the heads of the Court, the plan (at all times bad, for many reasons, as regards any Court,) is particularly vicious when, as is well known here, those heads have views so different, that peace can only be preserved by neutral courses; the effect of which, as well as the degree of energy of the parties, is amply demonstrated by the two series of Orders before us. From July to November nothing is done, even to carry the act into operation; and we are told, in excuse for the errors and imperfections of what then appears, that four months have been too little time for preparation; while that excuse (such as it is,) is almost immediately negatived by a fortnight's being found sufficient time for maturing what is issued as a finished effort. If instead of the heads of the Court, we turn to Parliament as the source of relief, then we fall into the hands of Mr. Hume, to whose wisdom it is said we are indebted for the scheme of paying the officers by mere salaries; the result of departments, and with diferent views, gets one and then another planner, in different. consulted; and of course takes the opportunity to dash in a little of the matter which his own position or views, or perhaps interests, happens to suggest to his fancy as proper. to inflict, by way of reform, as he calls it. I forming a correct theory as to who have been think there would be no great difficulty in at work on the present occasion, in what may be considered the incidental parts of the measure. November Orders. Why does not the form of Orders 1, 2, 3, and 4, are repetitions of the subpœna to shew cause against a decree give (as the others do) the number of days for shewing cause? 5 and 6,-continue the fee fixed on subpænas by the November series (by analogy to the Common Law charges for writs), so far cases, it somewhat whimsically, not only as regards a subpæna dures tecum. In all other changes the amount, but jumps back for this purpose into another (the old) principle of charge. The effect is, that the solicitor will have about 6s. 8d. for every three writs. He probably will be content with getting rid of the nuisance of the old system of the office; but (especially as it was thought fit to augment the gains of that office, in consideration of taking away all its labors) when the usual remuneration of a solicitor in a suit has been considerably diminished as regards "orders of course," it might, I think, have been quite as well to have embraced the opportunity (as the November Orders did) of making the allowances more reasonable and consistent Commentaries on the New Chancery Orders. than many of them now are, by paying the solicitor (like an attorney) for what he really and usefully docs, when taking away from him much more in amount for work which it is considered was not beneficial. This would have been effected by leaving him a gross fee, as for a common law writ; and the suitor would have still gained very largely by the concurrent abolition of much larger allowances. There seems now, on all occasions, to be a great deal more solicitude about providing elap traps in regard to savings, than as to real improvements in the machinery, or the principle of proceedings and practice. 7.-Revives the irregular and nonsensical computation by terms, happily got rid of at Common Law. Why not, as at law, give a uniform four months for the operation of the writ? Now The fee fixed for correcting and resealing the subpœna (which considering the patentee's guin by the reform, he ought to do gratuitously), raises the question before suggested in the Legal Observer, as to the authority for receiving fees not sanctioned by the act. Whatever general authority the heads of the Court before had, the act at any rate restrains and defines it to some extent, and prohibits every thing not so sanctioned. as regards the Subpæna Office, the act fixes one fee, and as to some other offices, gives specific fees, and authorizes the Chancellor to determine others; and then it expressly prohibits the receipt of any thing else by any officer whatever. Where then is the authority for receiving any others, or at any rate for granting new ones? How can orders remedy the effects of an obvious blunder; the act having originally been drawn applicable to all the offices, and the prohibitory clause not being altered when its scope was narrowed. 8.-Is quite a new provision, for facilitating orders of revivor, by the somewhat anomalous scheme of making orders on parties not in Court. After all, the party must eventually be brought into Court; so that no great good is effccted by the proceeding, which is rather singular. 9.-Gives a dedimus as of course. But why a dedimus at all, we are often asked? Perhaps this question has not occurred to the Siz Clerks Office; if the orders passed through that channel, as appearances indicate. Why cannot a defendant go to a Master Extraordinary, giving notice (if thought advisable) of his intention to the plaintiff's solicitor, that he may attend with another Master if he pleases ? 10, 11.-These Orders supply the omissions of the November series, as to time for demurring, and as to orders to revive. 12, 13.-Are useful regulations; and are not out of place, in connection with the new system of time to answer. 14-Is a particular regulation as to time, for answering in cases of amendment; and aims chiefly at meeting the possible (but not at all common) case of a defendant improperly delaying a plaintiff, by choosing to answer, when no answer is wanted. To meet this, the Mas, 199 ter has a discretion given him as to the time to be allowed. This will only lead to jangling and contrariety of decision; and after all, the cases are far more frequent of abuse the other way; that is, of a plaintiff's making amendments which it is not his interest, though very much the defendant's, that the latter should answer; and which the plaintiff accordingly precludes him from answering, by putting in a replication before the other has time to see the consequences. This happens continually, as every one knows. The practice is too frequent among draftsmen. I have known such a case as this, perpo trated by a living man of great practice. In answer to a bill for tithes of certain lands, the defendant set up a farm modus; and his description of the lands was, by reference to the description in the bill, sufficiently certain. The draftsman plots this stratagem: -He strikes out three or four words in the bill, so as to make the description in the answer, when applied to the amended bill, incomplete and uncertain; and directs an instant replication, after the eight days; and so the cause goes to the hearing; the defendant's solicitor never dreaming of the effect produced by an apparently merely verbal alteration, such as the order before us treats as not worth consideration. Then at the hearing, the defendant's modus is objected to, on the ground that the lands were not sufficiently defined by the answer, as in fact they now were not. The Court, however, saw through the trick, and (perhaps by a stretch of its functions) chose very properly to read the answer only in connection with the original record. Is it to be considered as laid down by this Order, under the exception as to alterations of "names, dates, sums," &c. (which may or may not involve important results) that the plaintiff may proceed instanter; and that the defendant is to have no opportunity of seeing whether the altered allegation is not one which it is material to negative or explain? Might not this difficulty be met on the application for leave to make such an amendment; by producing the amendments, and having it part of the order that the plaintiff might proceed thereon instanter, unless the defendant on the application showed the Master that he ought to be allowed to answer; when time should be given him accordingly? In fact, all orders to amend ought to be made on attendable summons, and adapted to the circumstances; and then justice would be done to both parties. 15, 16, 17.-Are revisions of the details as to getting the Masters in rotation assigned to each bill The point is not of much consequence practically, but how will the Master officially know that he is the Master attached to the cause, when first applied to in it? 18.-If I understand this Order, a defendant will, where his answer is so flagrantly insufficient that he submits, have six weeks time as of course. But where the matter is doubtful, so as to be argued, the Master may give him less. More than the old allowance it can hardly be supposed that any Master will allow. |