1550

the Crown and Government Security Bill: kes mures} same as relate to the compassing, imaginIn many old acts of a temporary nature, ing, inventing, devising or intending death or the words "printing, writing, and advised destruction, or any bodily harm tending to speaking," are to be found, as descriptive of death or destruction, maim or wounding, im- certain overt acts of treason. Thus, the act prisonment or restraint of the person of the heirs and successors of King George the Third, of 13 Eliz. made, compassing to levy war, and the expressing, uttering or declaring of declared by printing, writing, or advised such compassings, imaginations, inventions, speaking, high treason, during the life of devices or intentions, or any of them, shall be the then Queen; and there was an act of and the same are hereby repealed. 13 Car. 2, to the same purpose, on which some prosecutions were founded, but which expired with the death of that king. The acts 4 Anne, c. 8, and 6 Anne, c. 7, bear a closer analogy, however, in form and conThe most important alteration contem-struction to the bill before parliament than plated in the law, however, is that contained any of the earlier acts. These acts provided in the 3rd section of the new bill, which it is intended to substitute for the repealed provisions of the stat. 36 Geo. 3, c. 7. It is in the following terms :

"And that such of the recited provisions as are not hereby repealed, shall extend to and be in force in that part of the United Kingdom called Ireland."

that every person who should maliciously, advisedly, and directly, by writing or printing, affirm that the Queen was not the rightful Queen, or that the Pretender, had any right, or that the legislature had not sufficient authority to make laws for limiting the succession, should be guilty of high treason and suffer as a traitor; and that if

be

"That if any person after the day of the passing of this act shall, within the realm or without, compass, imagine, invent, devise or intend to deprive or depose the Queen from the style, honour or royal name of the Imperial any person should maliciously and directly, Crown of this realm, or of any other of her by preaching, teaching, or advisedly speak Majesty's dominions and countries, or to levy ing, declare and maintain the war against her Majesty, within any part of the should incur the penalties of a premunire. United Kingdom, in order by force or con- In commenting upon these acts, in his straint to compel her to change her measures Discourse on High Treason, Sir Michael or counsels, or in order to put any force or Foster says,-" In no case can a man be constraint upon, or to intimidate or overawe either House of Parliament, or to move or stir argued into the penalties of the acts by inany foreigner with force to invade the United ferences and conclusions drawn from what Kingdom, or any other her Majesty's dominions, he hath affirmed, the criminal position and such compassings, imaginations, inven- must be directly maintained to bring him tions, devices or intentions, or any of them, within the compass of these acts. Nor will 3 shall express, utter or declare, by publishing any every rash, hasty, or unguarded expression, 3. printing or writing, or by open and advised speak- owing perhaps to natural warmth, or throw ing, or by any overt act or deed, shall be out in the heat of disputation, render any deemed guilty of felony, and every person so offending, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of his natural life, or for any term not less than seven years."

man criminal within these acts: the crimi nal doctrine must be maintained maliciously and advisedly." Should it be deemed ne cessary to institute prosecutions for words or writings, under the law now framed, w eminent criminal lawyer will not be for have no doubt, the observations of this gotten, and will be deservedly considered as entitled to great weight.

under the act now introduced by her Ma To prevent the escape of persons indicted the facts alleged against them amount to jesty's government, upon the ground that treason, it is provided :

The words printed above in italics,-"by publishing any printing or writing, or by open and advised speaking," -are not to be found in the stat. 36 Geo. 3, c. 7, and are stated to have been introduced into this enactment considerately, and with the special intention of checking and punishing the course of procedure which at the present time is supposed peculiarly to call for the immediate intervention of the legislature. "That if the matters alleged in an indictment Declaring the offence described in this sec- for any felony under this act shall amount tion a felony, and subjecting parties con- law to treason, such indictment shall not by re victed to transportation, in lieu of the ex- for any felony under this act, shall not be son thereof be deemed void, and persons indicted treme punishment inflicted in cases of son thereof be entitled to be acquitted of such treason, has rendered it essentially a new felony; but no person tried for such felony law, and indicates the altered spirit in which shall be afterwards prosecuted for treason upon political offences are regarded.

the same facts."

Crown and Government Security Bill-Repeal of the Certificate Duty.

By the 6th section, principals in the second degree, and accessaries before and after the fact are thus dealt with :

That in felonies punishable under this act, principals in the second degree, and accessaries before the fact, shall be punishable in the same manner as principals in the first degree, and accessaries after the fact shall on conviction be liable to two years imprisonment with or withfout hard labour."

Such are the enactments which the responsible servants of the Crown consider requisite and adequate to enable them successfully to grapple with and overcome the geneemergency created, as it seems to be rally conceded, by adventitious circumstances, rather than by any deep rooted feeling of popular discontent or disaffection to the established institutions. The has received the all but unanimous sanction

measure

of both Houses of Parliament, and shortly after these remarks are in the hands of our readers will probably be part of the law of

the land.

REPEAL OF CERTIFICATE DUTY.

551

perpetrated by persons who had served no regular clerkship, but who took out certificates either in their own names or in the names of deceased attorneys, or of those who had gone abroad. It is manifest, with regard to the ordinary names of Brown, Jones, Smith, &c., there would be no means of ascertaining the identity of such persons with the names actually on the Roll, except by the method prescribed by the Attorneys' Act and earried into effect by the Registrar of Attorneys at the Incorporated Law Society; each person being required to sign his name to an annual declaration either by himself, his partner, or London agent.

In the new bill the necessary provisions have been made for continuing this registration, which by an experience of five years has proved efficient.

A different mode of registration takes place both in Scotland and Ireland, and it will be requisite for the practitioners in those parts of the United Kingdom to introduce provisions adapted to their respective cases. Communications have accordingly been made to the several societies in those parts of the empire, in order that THE petitions from the country in favour they may either prepare clauses to be added of the repeal of the Certificate Tax continue to the bill for England and Wales, or bring each week to be presented to the House of in separate measures for the like purpose. We understand that the bill has been Commons. The number of towns, cities, or FE counties from which the petitions have placed in the hands of Lord Robert proceeded is now 207, and no less than 99 Grosvenor, one of the members for the memembers have been addressed in support tropolitan county, and we have no doubt that it will be introduced at the earliest of the prayer of the petitioners.

།

...The bill will probably be soon presented, opportunity. Some persons suppose that and we therefore subjoin a complete list of it is rather too late to make the proposition the petitions presented, and of the members in the present session, but bills for the to whom they have been entrusted.

amendment of the law seldom receive

We understand that the bill has been attention until after Easter. We do not very carefully settled by the counsel to consider this to be a mere financial alterawhom it was submitted by the Incorporated tion, but to have an important bearing on Law Society. It was, of course, requisite, the administration of justice, and involving - after abolishing the Certificate Duty, to an important principle in relation to the provide for the annual registration of at- professional classes of the community-for It appears that it is manifest that if an annual sum can torneys and solicitors. prior to the year 1785, when the Certificate justly be demanded as a species of property Duty was first imposed, there was no qualification by the practitioners in the registration, and on the first imposition of learned professions, the "Duty," as it is the tax it was incumbent on the practitioner called, ought to be discharged by the Bar to obtain a certificate of his being duly and the Bench, and by all ranks of the enrolled before he could obtain a stamped certificate, but this was afterwards altered, and any one who paid the duty might obtain the stamped certificate and appear in the Law List.

Now, it was one of the main objects of the Attorneys' and Solicitors' Act, 6 & 7 Vict. c. 73, to prevent the frauds which had been

clerical and medical professions; and if so, why not also by engineers, architects, and surveyors, and by authors, editors, artists, engravers, printers, and various other classes connected with intellectual occupations. We wish to see the principle recognized in the houses of parliament, and the great grievance acknowledged. We admit that the

BB 2

Repeal of the Certificate Duty.-Legal Effect of an I. O. U.

Mr. Fuller.
Mr. Greenall.
Mr. Thos. Greene.
Sir J. Hanmer.

Mr. Hayter.
Mr. Headlam.
Mr. Heathcote.
Mr. Henley.
Mr. Law Hodges.
Sir Alex. Hood.
Mr. H. Hope.
Mr. Hornby.
Mr. Hudson.
Mr. Hutt.
Viscount Ingestre.
Mr. Jackson.
Earl Jermyn.
Mr. Keppel.
Mr. Kershaw.
Mr. Littleton.
Mr. Locke.

Mr. Mackinnon.
Mr. John Martin.
Col. Matheson.
Mr. W. Miles.
Mr. Moffatt.

Mr. Moody.
Mr. Oct. Morgan.
Viscount Morpeth.
Mr. Muntz.

Mr. Ogle.

Mr. Roundell Palmer.
Mr. Wilson Patten.
Captain Pechell.
Col. Powell.

Mr. Campbell Renton.

Mr. Ricardo.
Mr. Rice.

Col. Salwey.
Mr. Sandars.
Mr. Ker Seymer.
Mr. Sheridan.
Mr. J. G. Smyth.
Sir Wm. Somerville.
Mr. Stafford.
Mr. Stanley.
Mr. Stansfield.
Mr. Stanton.

Sir. F. Thesiger.
Mr. Thicknesse.
Col. Thompson.
Sir J Troilope.
Mr. Waddington.
Mr. Walpole.
Mr. Ward.
Mr. Welby.
Mr. Westhead.
Mr. M. Wilson.
Mr. Wyld.

LEGAL EFFECT OF AN I. O. U.

553

This decision is in conformity with that of the Court of Common Pleas in Curtis v. Rickards. There it was strongly urged, that if a document not addressed to any particular person could be sued upon by the party producing it, without showing how it was obtained, it became in effect a negotiable instrument, and ought to be stamped; but the Court, whilst admitting that documents of this nature were liable to abuse, nevertheless held, that the production of the instrument by the plaintiff was a fact from which the jury might infer that he had it from the defendant; as where a letter is given in evidence with the direction torn off, it will be presumed prima facie that it was addressed to the party producing it. If the instrument was not given to the plaintiff by the defendant, it would be competent for the latter to call witnesses to show it had been in other hands; but it would be imposing a great hardship on the plaintiff to oblige him to prove the docu ment was given to him by the defendant, as these memorandums often pass where none but the parties to them are present.

Adcock, first cited, in which it was distinctly held, that an I. O. U. is not evidence of money lent by the plaintiff to the defendant, although a contrary impression may arise from the case of Douglas v. Holme, in which the Court of Queen's Bench would seem to have decided that an I. O. U. is evidence of money lent, under a mistaken idea as to what the Court of Common Pleas had decided in Curtis v. Rickards.

The difficulty arising from the circumstance that the I. O. U. is produced by a person who is not necessarily able to show that he has any privity with the defendant, THE legal construction of this common obviously does not arise when the instruform of memorandum between parties in ment is addressed by name to the party acknowledgment of a debt, was the subject who produces it in evidence, but whether of consideration in a case in the Court of the instrument be or be not addressed to Exchequer, which has been very recently the plaintiff, the question remains, what is reported. In that case, which was an action the effect of the evidence? This question for money lent and on an account stated, is answered by the case of Fesenmeyer v. the plaintiff produced an I. O. U. for 404., dated and signed by the defendant, but not addressed to the plaintiff or any other person; and Baron Rolfe, who presided at the trial, held, that this memorandum was neither evidence of money lent by the plaintiff to the defendant, nor of any account stated between them. The Court, however, after discussion and mature deliberation, with the concurrence of Baron Rolfe, ultimately laid down the rule, that although an The practical conclusion suggested by instrument of this kind is not evidence of the more recent decision is, that an I. O. U. money lent by the plaintiff to the defendant, is only evidence to support a claim under any more than it would be evidence to the count upon an account stated, and that sustain a count for goods sold and delivered, the party intending to rely upon such evior for work and labour, yet the production dence must take care that his declaration of an I. O. U. by the plaintiff is prima contains a count of this description, and facie evidence that an account has been that his particulars of demand are so framed stated by the defendant with the plaintiff, as to entitle him to adduce evidence to and that the defendant is indebted to the support that count. If the defence is relied plaintiff in the amount specified in the memorandum.

Fesenmeyer v. Adcock, 16 Mee. & W.449.

upon

that the account was not stated be

b 1 Man. & Gr. 46.

e 12 Ad. & Ell. 641.

tween the plaintiff and defendant, it must application have been received, and the

be shown that the I. O. U. was given not to the plaintiff, but to some third party.

PRACTICE OF RETAINERS.

PROPOSED RULES.

OUR readers may recollect that in our number for the 10th April last year, we laid before them 26 questions on the practice of retainers, which had been sent by the Council of the Incorporated Law Society to every attorney and solicitor practising in London.

Council therefore conceive the time has arrived for submitting the result of their labours to their professional brethren in general, and consequently a printed copy of the proposed regulations as now settled bas been forwarded to every attorney and solici tor in London, inviting their sentiments upon them in their present state-the anxious wish of the Council being that rules which are designed to regulate the practice on this important subject should be rendered as perfect as possible, and be adopted with the full concurrence and approbation of the

solicitors.

In answer to the circular there referred The following are the proposed Rules of to, the Council received much useful in- Practice relating to the Retainers of Counsel, formation, from which it appeared that submitted to the Judges of the Superior Courts comparatively few points in the practice and to the Bar, by the Council of the Incorpowere clearly settled and uniformly acted upon;-that others, although well known rated Law Society. and generally complied with, were injurious to the suitors, and inconvenient to solicitors, and many were so doubtful, that the most experienced practitioners differed with regard to them widely in opinion.

The Council, from the materials thus collected, assisted by their own professional knowledge, prepared with much care a series of rules to be observed in retaining counsel, calculated to settle the practice, and to exclude doubt and dispute. Anxious that the proposed regulations should receive the sanction of the Bench and the Bar, the

Council in the month of May last submitted them to the Judges, to the Attorney and Solicitor-General, the Benchers of the Inns of Court, the Serjeants, and Queen's . Counsel.

In

consequence

General Retainers.

I. That a general retainer applies to all Courts in which the counsel receiving it usually practises.

II. That if the counsel should be offered retainer by the opponent of the party having given such general retainer, in any other Count than that in which he usually practises, the general retainer entitles the party giving it, to notice before the offered retainer is accepted.

III. That except it be lost, according to any of the following rules, the retainer lasts for the joint lives of client and counsel, or so long as the counsel continues in practice.

IV. In case a special retainer or brief is given a general retainer, the counsel is at liberty offered to counsel against the party who has to accept the special retainer or brief of the other party, unless within one week after issue joined, or replication filed, a special retainer be given by the party who gave the general

retainer.

and a brief is not delivered to the retained V. Where a general retainer has been given, giving the general retainer is concerned, the counsel in any action or suit in which the party general retainer is entirely lost, unless in cases where a brief is given to a junior counsel only, and the services of the retained counsel appear

of this, the Council were favoured with some valuable suggestions from two gentlemen of great eminence at the Bar, which were most carefully considered, and for the most part adopted. These being the only alterations proposed by the Bar, the Council might have felt at liberty to conclude that the rules generally unnecessary. were approved of by that branch of the pro- VI. Where a general retainer is given for fession; but to avoid the danger of mis-one person, and he is sued or sues with others, take on this important point, they at the and he defends separately, the retainer is binding; but it is otherwise if he defend jointly.

to end of Michaelmas Term last addressed a

letter to the Attorney-General, requesting Corporation and Partnership Retainers.

to be favoured with the sentiments of the Bar on the proposed rules, and soliciting the benefit of their opinion in the final settlement of them before the commence-¿ment of another Term.

294 It appears that no further objections or observations in consequence of this last

VII. Subject to the foregoing rules, a general retainer given for a corporation will continue, unless the corporation be dissolved or the grant of a new charter be accepted.

VIII. When a general retainer is given for a partnership or firm, it continues so long as the style of the partnership or firm continues.

IX. A general retainer may be given for a