The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, JANUARY 29, 1848.

“Quod magis ad NOS

Pertinet, et nescire malum est, agitamus."

HORAT.

RETAINER OF QUEEN'S COUNSEL
BY THE GOVERNMENT.

alleged injury committed by the direction of an officer of the government. The Admiralty, the department under which the officer who is defendant acted,-interposes, IT has been suggested that the observa- and undertakes his defence. The Attorneytions contained in our last number, with re- General, as representing the government, ference to the retainer of Sir Fitzroy Kelly assumes the conduct of that defence, and it in the case of Buron v. Denman, in the first is imputed to him, that in the exercise of a instance for the plaintiff, and subsequently questionable prerogative, he selects from for the defendant, are liable to be misunder- the ranks of her Majesty's counsel, numstood, as reflecting upon the whole body of bering nearly one hundred, Sir Fitzroy her Majesty's counsel, whilst the objection- Kelly, the only member of that body whom able proceeding commented upon is only the plaintiff had already retained, consulted, chargeable, in any view, upon two of the and confided in, and in right of his office as members of that body-the Attorney- Attorney-General requires him to abandon General and Sir Fitzroy Kelly. An anxious the cause of the client whose retainer he desire to abstain from prejudging the merits had accepted, and to transfer his services of a question, on which neither of the dis- and assistance to the adverse party. Sir tinguished persons named have yet had an Fitzroy Kelly's share in the transaction is opportunity of being heard either in expla- said to be, that he tamely submitted-so nation or justification, perhaps induced a far as we have yet learned, without remoncautious generality of expression open to strance or protest-to the requisition of the misconstruction; but nothing could be more Attorney-General, and justifies a departure manifestly unjust-and therefore further from the acknowledged rules of the profesfrom our intention-than to throw upon her sion, by pleading the paramount obligation Majesty's counsel collectively the discredit arising from his position as a sworn servant of proceedings which, it is to be hoped, of the Crown.

standing as they do next after the judges, I During the present week it was pubthey will be as ready as any other class in licly stated, that the Admiralty, at the sugthe profession to repudiate and condemn. gestion and upon the advice, as it was said, The whole case, as at present presented of the Attorney General, had dispensed to the public, lies in a very narrow compass, with the services of Sir Fitzroy Kelly, who and is extremely simple. Sir Fitzroy Kelly did not propose to appear either for plainhappens to have been, for some years, the tiff or defendant in the approaching trial. chosen and retained advocate and counsel of This announcement, however, appears to be a foreigner, who-in a right cause or a premature. The true state of the matter, wrong, it matters not which has thought we have no doubt, will be found correctly fit in one of our courts of justice to assert related in the following letter, addressed to his claim for damages, in respect of some the Editor of the Daily News:

VOL. XXXV. No. 1,038.

306

Retainer of Queen's Counsel by the Government.

66 BURON . DENMAN.

stance put an end to the retainer which Sir “SIR,-I am desirous of correcting an error F. Kelly held from the plaintiff, and left him in your paper of this day, on the subject of Sir open to a retainer on the part of the governFitzroy Kelly's retainer for the plaintiff in the ment when Sir John Jervis assumed the above-mentioned action, relative to the nature office of Attorney-General. It is hardly of the communication addressed to me by the necessary to say, that this would, in our Lords of the Admiralty. In this communica- view, afford no justification of the facts distion their lordships announce to me, not that closed to the public in Mr. Hay's petition, 'the Crown will dispense with the services of

Sir Fitzroy Kelly in the further conduct of this although it would not be a whit more monimportant cause,' but they merely state that strous than the doctrines asserted and acted they have again referred the question respect- upon by leading members of the Bar on the ing Sir F. Kelly to the Attorney-General, with subject of retainers, in a hundred cases the expression of their earnest wish that he may which have never become the subject of dis find it compatible with his duty to recommend cussion.

to the Crown, under the peculiar circumstances The duty of the body of Queen's Counsel of the case, to dispense with the services of Sir F. Kelly. I have not since been informed of collectively in this matter appears to us to the determination the Attorney-General has be clear. They are the guardians of the come to upon the question; and, therefore, I honour of the Bar, and if, upon inquiry and can scarcely assume that the result of the reference to him will be such as anticipated in your article of this morning. I beg the favour of your correction of this mistake.

"GEORGE GUN HAY. "44, Lincoln's Inn Fields, Jan. 24."

ascertainment of the facts, they find that a principle has been violated, which involves the character of the profession, and the independence of their own grade at the Bar, the station and position of the offenders furnish an additional reason for the expres sion of a firm and determined resolution of The course pursued by the Admiralty, condemnation. Silence on their part will as disclosed by Mr. Hay's letter, evinces be, not unfairly, construed as amounting a becoming deference for public opinion not merely to acquiescence but approval. on the part of those who preside over Not long since, the benchers of the Middle that department. It leaves the profes- Temple resorted to the extreme length of sional question, however, just where it disbarring a member of that hall, practising was. The fact is notorious and beyond as a provincial barrister, upon a complaint, all doubt, that Sir Fitzroy Kelly was seen that he had communicated to one litigant in the Court of Exchequer, at one time party in a cause, information derived from acting as the leading counsel for the plain- the other in the character of a counsel. tiff in Buron v. Denman, and at a subse- The unfortunate gentleman who was the quent period (on the day appointed for the subject of that, we presume, just censure, trial at Bar) sitting at the right hand of the Attorney and Solicitor-General as counsel for the defendant! We may presume that the law officers of the Crown did not go into court in so important a case without a con.sultation. Did Sir Fitzroy Kelly attend that consultation and give his best advice against the client who had previously retained him? It is impossible not to feel that a line of conduct so unusual requires, and we trust will receive, some satisfactory explanation. It has been whispered, and may turn out to be the fact, that whilst Sir Fitzroy Kelly filled the office of Solicitor- may invest with a tyrannous discretion. If General, the Lords of the Admiralty had the law be, as stated by Sir Fitzroy Kelly, expressed their determination to defend the that those entitled to wear silk gowns, when action against Captain Denman, and that called upon by an Attorney-General, have no Sir Frederick Thesiger, then the first law choice but must obey, under the obligation officer of the Crown, thought it his duty to of an oath, the law should be altered, or the prohibit a person filling so prominent a po- professional relation between her Majesty's sition as Sir Fitzroy Kelly from continuing counsel and the public at large, must be to act as counsel to a private individual placed upon a very different footing It whose claim was resisted by the Crown. It cannot be necessary to remind a body so may have been supposed that this circum-learned, sagacious, and conversant with the

has retired from the profession, and we believe, left the country. If that signal example was just and necessary, can the cir cumstances now made public pass without notice from the heads of the profession? If this instance remain unquestioned and unrebuked, it becomes a precedent, and those who wear silk gowns will have to blame themselves, should they hereafter find their honour assailed, or their professional reputation sacrificed upon the impulse of a despotic or malicious disposition, which a concurrence of adventitious circumstances

New Bankruptcy Amendment Bill-Law of Wills.

30€

affairs of mankind, as the Queen's counsel, portant, to allow of its being again entrusted that in resisting the undue exercise of au- to even the most prudent and successful exthority, it is often neither prudent nor perimentalist. The merchants and traders dignified to wait until we are personally

attacked.

have plainly and decidedly pointed out the defective principles of the existing law, and the government must rely on those whose

NEW BANKRUPTCY AMENDMENT practical knowledge renders them competent

BILL.

to suggest the manner in which the required improvements should be effected. In such matters, neither great industry nor great parts can supply the want of practical experience.

LAW OF WILLS.

It seems that Lord Brougham, unsated with the triumphs he has obtained by his numerous, varied, and we wish we could add, successful experiments, in legislating upon the Law of Debtor and Creditor, has already a fresh Bankruptcy Amendment Bill prepared. The fact was publicly announced by Mr. Serjeant Goulbourn in the course of last week, at the Court of Bankruptcy, upon the occasion of delivering a judgment, where the construction of this act so far as regards an application was made to re-hear a case in

1 Vict. c. 26, s. 9.

EXECUTION AND ATTESTATION.

WE resume our review of the decisions on

and there was no evidence that it was really signed at that time, the acknowledgment was held insufficient. In Goods of Trinder, 3 No. of Cases, 275; Hudson v. Parker, 3 No. Ca. 236,

which a certificate had been refused. The the due execution and attestation of wills. learned commissioner stated, that Lord IV. The signature must be made or acknowBrougham had done him the favour to for-ledged by the testator in the presence of two ward a copy of a new bill which he had witnesses present at the same time. 1. It was at first doubted whether the acknowledgment perprepared, and which gave the commissioners mitted by the act was not confined to those in bankruptcy the power to vary and recases only where the signature was made for scind their own orders. Upon inquiry, the testator by some other person, and therewe find that the bill has been printed, at fore, that an acknowledgment by a testator of the public expense, but that it is indorsed a signature made by himself would not be suffi"For private circulation," and we are cient, but it was decided in the Goods of Regan, therefore prevented at present from lay-1 Cur. 908, that the act extends to both cases. ing its provisions before our readers. It is The act requires the signature to be acknowreported, we know not upon what authority, duced a paper to the witnesses, and told them ledged, and where therefore a testatrix prothat it is intended to abolish the courts of it was her will, and asked them to sign it, the district commissioners in the country, which they did, but she did not sign it in their and to transfer the jurisdiction now exercised presence, nor did they see any other part of the by them to the judges of the county courts. will than that on which they wrote their names, As we have no doubt the proposed measure will be laid before parliament shortly after it has been re-assembled, it would be idle to anticipate the discussion which the subject where the question was very elaborately conmust then undergo. We need scarcely re-sidered by the court. So, where the deceased peat our cordial concurrence with the ex-requested two persons to sign a paper for him, pression of opinion contained in the report which they did, but the paper was so folded of the Manchester Law Association, (pub- that the witnesses did not see any writing whatlished in our last,) as to the pressing ne- ever on it, it was held not an acknowledgment cessity for a material alteration in the law within the statute. Ilott v. Genge, 3 Cur. 160. of bankruptcy, and of the great importance The deceased having signed her will, produced it before two witnesses, saying, "Sign your and public benefit that must result from names to this paper," which they did. There the legal societies co-operating with the appears to have been no attempt by the testatrix commercial community, to render its ad- to conceal her signature, or any part of her will ministration just, useful, and satisfactory. from the witnesses, but it is not stated that It is sufficient now to add, that we alto- they saw the signature, or that the will was gether despair of any legislative amendment entirely written by the deceased. Probate was Sworthy of the name, which is not introduced refused. In the Goods of Ann Rawlins, 2 Cur. upon the responsibility, and carried through 326. parliament with the undivided influence, of government.

02

The subject is too serious, the evil too extensive, the interests involved too im

But it is not necessary that a testator should say, "This is my signature;" a virtual acknowledgment will be sufficient. It was observed in White v. The Trustees of the British Museum, 6 Bing. 310, "In the execution of