New Statutes effecting Alteratims in the Law. price in money, on the application of the plaintiff, and by leave of the judge before whom the cause is tried, the jury shall, if they find the plaintiff entitled to recover, find by their verdict what are the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remain undelivered; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof; what damages (if any) the plaintiff would have sustained if the goods should be delivered under execution, as herein-after mentioned, and what damages if not so delivered; and thereupon, if judgment shall be given for the plaintiff, the court or any judge thereof, at their or his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum (if any) as shall have been found to be payable by the plaintiff as aforesaid, of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed; and such writ of execution may be for the delivery of such goods; and if such goods so ordered to be delivered, or any part thereof, cannot be found, and unless the court, or such judge or baron as aforesaid, shall otherwise order, the sheriff, or other officer of such court of record, shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, or within the jurisdiction of such other court of record, till the defendant deliver such goods, or, at the option of the plaintiff, cause to be made of the defendant's goods the assessed value or damages, or a due proportion thereof; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action or suit. 3. No special promise to be made by any person after the passing of this act to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith or some other person by him thereunto lawfully authorised, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document. 4. No promise to answer for the debt, default, or miscarriage of another made to a firm consisting of two or more persons, or to a single person trading under the name of a firm, and no promise to answer for the debt, default, or miscarriage of a firm consisting of two or more persons, or of a single person trading under the name of a firm, shall be binding on the person making such promise in respect of anything done or omitted to be done after a change shall have taken place in any one or more of the persons constituting the firm, or in the person trading under the name of a firm, unless the intention of the parties, that such promise shall continue to be binding notwithstanding such change, shall appear either by express stipulation or by necessary implication from the nature of the firm or otherwise, 5. Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by 333 the payment of the debt or performance of the duty, place of the creditor, and to use all the remedies, and such person shall be entitled to stand in the and, if need be, and upon a proper indemnity, to proceeding, at law or in equity, in order to obtain use the name of the creditor, in any action or other from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him: Provided always, that no co-surety, co-confrom any other co-surety, co-coutractor, or co-debtor tractor, or co-debtor shall be entitled to recover by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable. 6. No acceptance of any bill of exchange, whether inland or foreign, made after the thirty-first day of December one thousand eight hundred and fifty-six, shall be sufficient to bind or charge any person, unless the same be in writing on such bill, or, if there be more than one part of such bill, on one of the said parts, and signed by the acceptor or some person duly authorised by him. 7. Every bill of exchange or promissory note drawn or made in any part of the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of her Majesty, and made payable in or drawn upon any person resident in any part of the said United Kingdom or islands, shall be deemed to be an Inland bill; but nothing herein contained shall alter or affect the stamp duty, if any, which, but for this enactment, would be payable in respect of any such bill or note. 8. In relation to the rights and remedies of persons having claims for repairs done to, or supplies furnished to or for, ships, every port within the United Kingdom of Great Britain and Ireland, the islands of Man, Guernsey, Jersey, Alderney, and being part of the dominions of her Majesty, shall be Sark, and the islands adjacent to any of them, deemed a home port. 9. All actions of account or for not accounting, merchandise between merchant and merchant, their and suits for such accounts, as concern the trade of factors or servants, shall be commenced and sued suits, or when such cause has already arisen then within six years after the cause of such actions or within six years after the passing of this act; and no claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit prised in the same account having arisen within six by reason only of some other matter of claim comyears next before the commencement of such action or suit. 10. No person or persons who shall be entitled to any action or suit with respect to which the period of limitation within which the same shall be brought is fixed by the act of the twenty-first year of the reign of King James the First, chapter sixteen, section three, or by the act of the fourth year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the act of the fifty-third year of the reign of King George the Third, chapter one hundred and twenty-seven, section five, or by the acts of the third and fourth years of the reign of King 334 New Statutes effecting Alterations in the Law. others of such co-contractors or co-debtors, execu William the Fourth, chapter twenty-seven, sections 11. Where such cause of action or grit with respect to which the period of limitation is fixed by the enactments aforesaid or any of them lies against two or more joint debtors, the person or persons who shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or persons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond seas at the time the cause of action or suit accrued after his or their return from beyond seas, by reason only that judgment was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid. 12. No part of the United Kingdom of Great Britain and Ireland, nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to them, being part of thedominions of her Majesty, shall be deemed to be beyond seas within the meaning of the act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen, or of this act. 13 In reference to the provisions of the acts of the ninth year of the reign of King George the Fourth, chapter fourteen, sections one and eight, and the sixteenth and seventeenth years of the reign of her present Majesty, chapter 113, sections twentyfour and twenty-seven, an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorised to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. 14 In reference to the provisions of the acts of the twenty-first year of the reign of King James the First, chapter sixteen, section three, and of the act of the third and fourth years of the reign of King William the fourth, chapter forty-two, section three, and of the act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter 113, section twenty, where there shall be two or more co-contractors or co-debtors, whether bound or liable jointly only or jointly and severally, or executors or administrators of any contractor, no such co-contractor or co-debtor, executor, or administrator shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money, by any other or 15. In order to enable the superior courts of common law at Westminster and Dublin, and the judges thereof respectively, to make rules and regulations, and to frame writs and proceedings, for the purpose of giving effect to this act, the 223rd and 224th sections of "the Common Law Procedure Act, 1852," shall, so far as this act is to take effect in England, and the 233rd and 240th sections of "the Common Law Procedure Amendment Act (Ireland), 1853," shall, so far as this act is to take effect in Ireland, be incorporated with this act, as if those provisions had been severally herein repeated and made to apply to this act. 16. In citing this act it shall be sufficient to use the expression "the Mercantile Law Amendment Act, 1856." 17. Nothing in this act shall extend to Scotland. EVIDENCE IN MATTERS PENDING BEFORE FOREIGN TRIBUNALS 19 & 20 Vic. c. 113. 1, Order for examination of witnesses in this 2. Certificate of ambassador &c., sufficient evi- 3. Examination of witnesses to be taken upon 4. Payment of expenses. 5. Persons to have right of refusal to answer 6. Certain courts and judges to have authority The following are the title, preamble, and sections An Act to provide for taking Evidence in her WHEREAS it is expedient that facilities be afforded 1. Where, upon an application for this purpose, it is made to appear to any court or judge having authority under this act that any court or tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction of such first-mentioned court, or of the court to which such judge belongs, or of such judge, it shall be lawful for such court or judge to order the examination upon oath, upon interrogatories or otherwise, before any person of New Statutes.-Law of Divorce and Matrimonial Causes. persons named in such order, of such witness or witnesses accordingly; and it shall be lawful for the said court or judge, by the same order, or for such court or judge or any other judge having authority under this act, by any subsequent order, to command the attendance of any person to be named in such order, for the purpose of being examined, or the production of any writing or other documents to be mentioned in such orde, d to give all such directions as to the time, place, and manner of such examination, and all other matters connected therewith, as may appear masenable and just; and any such order may be enforced in like manner as an order made by such court or judge in a cause depending in such court or before such judge. 2. A certificate under the hand of the ambassador, minister, or other diplomatic agent of any foreign power, received as such by her Majesty, or in case there be no such diplomatic agent, then of the consul general or consul of any such foreign power at London, received and admitted. as such by her Majesty, that any matter in relation to which an application is made under this act is a civil or commercial matter pending before a court or tribunal in the country of which he is the diplomatic agent or consul having jurisdiction in the matter so pending, and that such court or tribunal is desirous of obtaining the testimony of the witness or witnesses to whom the application relates, shall be evidence of the matters so certified; but where no such certificate is produced, other evidence to that effect shall be admissible. 3. It shall be lawful for every person authorised to take the examination of witnesses by any order made in pursuance of this act to take all such examinations upon the oath of the witnesses, or affirmation in cases where affirmation is allowed by law instead of oath, to be administered by the person so authorised; and if upon such oath or affirmation any person making the same wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury. 4. Provided always, that every person whose attendance shall be so required shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial. 5. Provided also, that every person examined under any order made under this act shall have the like right to refuse to answer questions tending to criminate himself, and other questions, which a witness in any cause pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made would be entitled to; and that no person shall be compelled to produce under any such order as aforesaid any writing or other document that he would not be compellable to produce at a trial of such a cause. 6. Her Majesty's superior courts of common law at Westminster and in Dublin respectively, the court of session in Scotland, and any supreme court in any of her Majesty's colonies or possessions abroad, and any judge of any such court, and every Judge in any such colony or possession who by any order for her Majesty, in council may be appointed for this purpose, shall respectively be courts and judges having authority under this act: provided, that the Lord Chancellor, with the assistance of two of the judges of the courts of common law at Westminster, shall frame such rules and orders as 335 shall be necessary and proper for giving effect to the provisions of this act, and regulating the procedure under the same. LAW OF DIVORCE AND MATRI- LORD LYNDHURST'S SPEECH. CONNECTED with the abolition or reform of the Fuck isstical Courts, in testamentary matters, is essentially associated the amendment of the jurisdiction in divorce and matrimonial causes. We deem it necessary to put on record Lord Lyndhurst's speech in the last session, in support of the bill then be the House of Lords. but think Lord Lyndhurst said: -Before guin into committee I wish shortly to stake in cance of this bill as it has come down to you! ips House from the select committee, and i that your lordships will approve the suggested by that committee. The great object which the committee had in view, and whier e framers of the original measure had in view, was to establish a separate tribunal for deciding upon matrimonial causes. When the constitution of that tribunal was considered in committee, we came to the conclusion that it should be composed of the Lord Chancellor, the three chief judges of the courts of common law, and the Dean of the Arches; that the Dean of the Arches might sit alone in cases such as those which at present came under his jurisdiction; but that causes for divorce à vinculo matrimonii should be decided by the full court, or rather by a quorum of the court. further appeared to us, that the appeal from the decision of the Dean of the Arches should be heard before the whole court, while appeals from the full court should be brought before your lordships' House; such appeals to be founded not upon questions of fact, but upon points of law. It I think that your lordships, after considering the composition of that tribunal, will agree with the opinion of the committee, that it will be likely to answer the purpose which we had in view. It will be a court dignified by rank, full of talent, and not more competent than a court ought to be, which is called upon to decide questions of such vast importance. So much, then, with respect to the constitution of the tribunal, which I think your lordships will consider to be satisfactory. Now, I come now to the alteration in the existing law which the committee propose. As the law at present stands, a woman divorced from her husband on her own petition on account of adultery, cruelty, or other misconduct on the part of her husband is placed in this situation, that whatever property she may acquire by her own industry and skill, or whatever property may devolve upon her, becomes at once the property of her husband, and is not infrequently employed by him, not in the support of his wife, but in the support of a mistress. my lords, the committee considered that it would be most desirable to put an end to that state of things, and they decided unanimously that a woman divorced à mensâ et thoro from her husband, who afterwards acquires property, shall retain it to her own separate use, and may dispose of it by grant or by will or in any way in which she pleases. I think that your lordships will be of opinion with the committee, that such a provision is imperatively required by justice. 336 Law of Divorce and Matrimonial Causes.-Parliamentary Return. Another great hardship of the present system is, that a woman separated from her husband, in case of injury or in other cases, cannot maintain an action in her own name, and the committee came to the conclusion that a woman divorced à mensà et thoro from her husband ought to be allowed to come into a court of law as a feme sole. I think that your lordships will be of opinion that such an alteration in the present law would be wise and beneficial; and I beg leave to say that, from the conversations which I have had with my uoble and learned friend on the woolsack, I think that it has passed through his mind that such a provision should be inserted in the bill. I now come to the third point-the action for damages in cases of adultery-an action which I consider and which I think many of your lordships will consider to be of a most scandalous character. I proposed, my lords, in that committee, to abolish the action for damages, but the opinion, although not the unanimous opinion of the committee, was against me upon that point. I afterwards proposed that, for the action for damages a prosecution should be substituted, and I am quite sure that a prosecution would be more effectual in preventing adultery than the action for damages-an action which is a scandal to a civilized country, and which excites the horror and disgust of other countries, and which at the same time is an action involving a great hardship and injustice to the woman, who is not allowed to appear either in person or by counsel, and who thus may, by the combination of her husband and another person, become a victim without a remedy. Such a state of things is contrary to all principles of justice. In the Court of Chancery, if it be suggested that any person not then in the suit is in the slightest degree interested in it, the suit is suspended until he is made a party to it. The committee came, I think, to a most unfortunate decision upon that point. I shall presently propose a motion with respect to it, and I trust that your lordships will take the matter into your most serious consideration. I find that in actions of this kind judgments constantly go by default, upon the understanding that the damages shall be refunded; and it is said that I shall inflict a hardship upon some persons by carrying out my proposition upon this subject; but, when hardships are spoken of, permit me to call to your lordships' recollection the substance of a curious petition which was presented some time since by a noble and learned friend of mine not now present, and for the accuracy of the statements contained in which be vouched. In the case to which the petition related an action for adultery was brought, a verdict was obtained by the plaintiff, nominal damages were given, and the lady lost her character and was driven out of society. After a lapse of 18 months or two years she contrived to prove to the satisfaction of the court that there was not the slightest foundation for the accusation. In such a case, I submit to your lordships the hardship of a woman losing her character and being driven from society, without an opportunity being afforded her of being heard, or of examining witnesses in her defence. In a fourth point of great importance, the committee, although they have not gone quite so far as I wished, have advanced considerably in the way of reform, and with the view of protecting the rights and interests of women. I thought that it was consistent with scripture, consistent with the law, and consistent with reason, that the wife should be put on the same footing as the husband in proving cases of adultery. Such an equality would be in accordance with the known law of Scotland, and evidence was adduced to show that no inconvenience resulted from placing the husband and wife on the same footing in that respect. I cited many authorities in support of that opinion, and ultimately the committee went so far as to decide that, in all cases of adultery accompanied with cruelty, in cases of incestuous adultery, and in cases of bigamy, the wife was entitled to a divorce. I very much thank the committee for having gone so far as they have in this matter, although I would fain have pursuaded them to go a little further. I thought, for instance, that where adultery was committed and the husband was charged with felony and sentenced to be transported, so that the object of marriage was defeated, the wife ought to have an opportunity of obtaining a divorce. However, I am thankful for the amendments in this direction which have been made. There is one more point only in which the committee made any material alteration in the bill as it went before them. The bill provided that the wife should be entitled to alimony after four years' desertion by her husband, and the committee have shortened that period, and have decided that she should be entitled to alimony after a desertion of two years. With these observations, I trust that this bill, which I regard as an importaut step in the right direction, will shortly become the law of the land. Ir will be observed from the following account, that the attorneys and solicitors of Ireland contribute a considerable annual sum to the inn of court there, and that the benchers receive from the Stamp-office a certain proportion (about one-fifth) of the duty paid on attorneys' indentures or articles of clerkship. On the other hand, it appears that the benchers have provided rooms in the buildings connected with the four courts for the exclusive use of the attorneys, and for furnishing the same and stocking their library. They have also provided reception rooms as well for attorneys as barristers. In the forthcoming plan for the improvement of the course of legal education in England it is worth considering whether this precedent should not be followed, and contributions made by the Inland Revenue Parliamentary Return: King's Inns, Dublin. 337 Office out of the taxes received from attorneys, for the purpose of extending the means of legal education to that branch of the profession. A RETURN of all Monies received by the Honourable Society of the King's Inns in Dublin, in each year, since the 30th June, 1839, from Students at Law; similar account of all Moneys received on the Admission of Barristers; similar Account of all Sums received from Attorneys' Apprentices; similar Account of all Sums received on the Admission of Attorneys; and, a similar Return of all Sums received from the Stamp Office, being a portion of the Stamp Duty received on Attorneys' Indentures to the end of Trinity Term, 1856: The sums received as appropriated duties cannot be deemed as payments made by either branches of the Profession, the same having been, so far back as the year 1796, granted by the Government as an equivalent for a rent to the society for the ground on which the Four Courts of Justice on the Inns' Quay were erected, and which was the property of the Society, which grant has been since that time confirmed by the 56 Geo. 3, and 5 & 6 Victoria. A RETURN of the Annual Expenditure of the Honourable Society of King's Inns since the 30th June, 1839, to the end of Trinity Term, 1856, which consists of the following Heads of Disbursements; viz., Rents, Taxes, Library, Officers' Salaries, and every Expense connected with Housekeeping, and the Society's Establishment, as set forth in the following Table marked No. 1. The following Sums, amounting to the Sum of £51,056 18s. 3d., as set forth in the Table No. 2, expended in the purchasing the interest of Lands held by the Society under the Representatives of Lord Blessington and Robert Courtney, Esq., on part of which the King's Inns is erected; in discharging the residue of Accounts for erecting Buildings at Rear of the Four Courts, in which are several Apartments allocated exclusively for the use of the Profession of Attorneys and Solicitors generally, and the cost of furnishing same: and also a Grant made to them as an outfit for stocking their Library (besides a large Number of Law Books out of the Library at the King's Inns); likewise a grant made to the principal of the late Law Institute; the erection of a Building at the King's Inns for Lectures for Students and the Profession generally, in which are Reception Rooms for both Barristers and Attorneys; and also Grants for Superannuated Servants of the King's Inns, and Grants for Charitable purposes. |