Court-house, BRECON, Brecknockshire, Oct. 31 at 10. Simon Jones, Brecon, beer-house keeper.-E. Humphreys, Blaenycwm, Merthyrcynog, out of business.—Richard Price, Brynmawr, otherwise Wainhelygen, Llanelly, cider merchant.

Court-house, MAIDSTONE, Kent, Oct. 28 at 10.

George Everitt, Greenwich, clerk to the Safety Steam Boat Company. Wm. White, Woolwich, blacksmith.-Edward Cheesman, Lew Tonbridge-wells, coal dealer.-H. G. Moore, Gravesend, out of business.-Henry Wall, Chatham, assistant to a brewer.-Charles Small, Great Chart, near Ashford, butcher.-Charles Russell, Gravesend, professor of dancing.-F. J. Edgecombe, Sheerness, agent for sale of slops and provisions to her Majesty's ships.-Martha Ann Thomas, Illcomb, spinster.-Jas. Miller, Thorne, near Gravesend, labourer.-Thos. Tapply, Rolvenden, tailor.-Isaac Hague, Iden-green, Benenden, out of business.-John Robins, Sheerness, builder.-E. Wright, Lee, near Lewisham, carpenter.-John Bourne, Pet

John Weston Palmer, Old Buckenham, Norfolk, grocer, teridge, near Brenchley, out of business.-John Lloyd, Milton, draper, and general shopkeeper.

next Gravesend, out of business.-H. Stoakes, jun., Lympue, near Hythe, out of business.-John Levy, Sheerness, outfitter.

Alex. Kay, John Barlow, jun., and John P. Aston, Man-Joseph Paine, Maidstone, wig maker.

XIV. Appointment of New Constable to supply a Vacancy, A INGS, with Observations on the New Orders of 1841,

TIONS and REGISTRATION of PARLIAMENTA in Ireland, under the Act 5 & 6-Vict. c. 82, for assimiARY ELECTORS in ENGLAND and WALES; with an Appendix of Statutes, including the Act to amend the Jurisdiction for the Trial of Election Petitions, 2 & 3 Vict. c. 38, with Notes. By GEORGE PERCY ELLIOTT, Esq., of the Middle Temple, Barrister at Law.

No. 301.

PRICE 18.

** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

House of Lords

Privy Council

......

....

{

E. T. HOOD, Esq. of the Inner
Temple, Barrister at Law.
TENISON EDWARDS, Esq. of the
Inner Temple, Barrister at Law.

House of Commons Elec- JA. V. KIRWAN, Esq. of Gray's
Inn, Barrister at Law.
tion Committees....
The Lord Chancellor's f E. T. HOOD, Esq. of the Inner
Court
Temple, Barrister at Law.

Master of the Rolls Court-
Temple, Barrister at Law.
Vice-Chancellor of Eng- TRNISON EDWARDS, Esq. of the
land's Court
Inner Temple, Barrister at Law.
Vice-Chancellor Knight W. W. COOPER, Esq. of the Inner
Bruce's Court.... 1 Temple, Barrister at Law.
Vice-Chancellor Wigram's f E. J. BEVIR, Esq. of Lincoln's
Court

{G. Y. ROBSON, Esq. of the Inner

Inn, Barrister at Law.

LONDON, OCTOBER 15, 1842.

to bankrupts and insolvents.

"14. Composing, printing, or publishing blasphemous, seditious, or defamatory libels.

"15. Bribery.

"16.

Unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such justices or recorder respectively have or has jurisdiction to try when committed by one person.

THE approach of the time of holding the Quarter" 11. Abduction of women and girls. Sessions of the Peace, reminds us of an intention we "12. Endeavouring to conceal the birth of a child. some time since formed, of noticing an Act passed dur-"13. Offences against any provisions of the laws relating ing the last session to define the jurisdiction of the justices. Of that jurisdiction it is unnecessary to state the origin, which must be well known to our readers; the present object being to remind them of a new law. The alterations in the Criminal Law, by taking away the punishment of death in so many instances, brought within the jurisdiction of the justices in Quarter Sessions many offences which, because punishable capitally, could not formerly be tried by them. It will be seen that these are again withdrawn from it by the late act. It enacts "That neither the justices of the peace, nor the recorder of any borough, shall, at any session of the peace, try any person for any treason, murder, or capital felony, or any felony which, when committed by any person not previously convicted of felony, is punishable by transportation beyond the seas for life, or for any of the following offences; (that is to say), "1. Misprision of treason.

"2. Offences against the Queen's title, prerogative,
person, or government, or against either House
of Parliament.

"3. Offences subject to the penalties of præmunire.
"4. Blasphemy, and offences against religion.
5. Administering or taking unlawful oaths.
"6. Perjury and subornation of perjury.
"7. Making or suborning any other person to make
false oath, affirmation, or declaration, punishable
as perjury, or as a misdemeanor.

9.

a

"3. Forgery.
Unlawfully and maliciously setting fire to crops
of corn, grain, or pulse, or to any part of a wood,
coppice,
or plantation of trees, or to any heath,
gorse, furze,
or fern.
VOL. VI.
NN

"17.

"18.

Stealing or fraudulently taking, or injuring or de-
stroying, records or documents belonging to any
court of law or equity, or relating to any pro-
ceeding therein.
Stealing or fraudulently destroying or concealing.
wills or testamentary papers, or any document or
written instrument, being or containing evidence
of the title to any real estate, or any interest in
lands, tenements, or hereditaments."

The 2nd section empowers a Judge of the Superior Courts at Westminster, "acting under any commission of oyer and terminer and gaol delivery for any county, to issue, if he shall think fit, any writ or writs of certiorari or other process, directed to the justices of the peace acting in and for such county, riding, division, or liberty, or to the recorder of any borough situated within the said county, commanding the said justices and recorder severally to certify and return into the court holden under the authority of such commission of oyer and terminer and gaol delivery, all indictments or presentments found or taken before any of the said justices of the peace, or recorder, of any offences which, after the passing of this act, such justices or recorder will not have jurisdiction to try, and the several recog

nisances, examinations, and depositions relative to such the utmost care is manifested, that, in disputes about indictments and presentments; and also, if necessary, by writ or writs of habeas corpus, to cause any person or persons who may be in the custody of any gaol or prison, charged with any such offence, to be removed into the custody of the keeper of the common gaol of the county."

It is to be observed, that the justices or recorders are only forbidden by the first section to try any person for the offences enumerated. It may be supposed from this, coupled with the above provision for the removal of indictments, that it is still competent for a prosecutor to prefer a bill of indictment for any of those offences before the grand jury at the Quarter Sessions, and that the same when found may be removed and tried at the assizes. The act seems to refer to the trial of an indictment already found. And, indeed, if this is not the construction of it, the provision in the second section is unnecessary, except to meet the cases of indictments found before the passing of the Act, but not then tried, for which purpose it seems unlikely that words of so extended an import would have been used. And instances may not unfrequently occur, with respect to some, at least, of the specified offences, where, upon a magistrate declining to hold a person to bail, it would be desirable to have an indictment at once found, in order that a bench warrant might be issued. On the other hand, however, it is to be observed, that in a case which occurred before the passing of this act, (R. v. Haynes, R. & M., C. N. P. 298), the judge treated an indictment for forgery, found at the sessions and removed by certiorari, as a nullity, and refused to try it. Among the offences mentioned in the Act are some which the sessions never had power to try: treason, misprision of treason, præmunire, forgery, and perjury at common law. With respect to capital felonies, although the justices in sessions had, in point of law, jurisdiction, it was not the practice for them to try any

indictments in such cases.

his property of even small value, it should be both good and expensive, the case is reversed when he is placed at the bar of a criminal court, with danger threatening his good name, the only wealth, oftentimes, of the poor.

But to return to our Act of Parliament. The third section enacts, that where an indictment shall be removed, the recognizances which have been entered into shall be obligatory upon the parties to appear at the assizes, in like manner as if originally entered into for that purpose.

But it is provided, that one week's

notice shall have been given to the parties bound by the recognizance. It would seem that this is to be after the writ of certiorari is granted, as the Judge granting it is directed by the Act to cause the party applying to enter into a recognizance to do so. The words of the second section import, that the Judge, acting under a commission for any county, is to issue a writ to the Justices of such county. We apprehend, therefore, that an application cannot be made to him until after the commencement of the assizes for the county to which the Justices belong; and if seven days are then to elapse before the trial, it would, in many instances, be impossible for it to be had during the same assizes. Does the Act mean that the party applying for the writ may give the notice in anticipetion?-It does not seem to us to do so; it would be better if it did. If, indeed, these clauses applied only to cases occurring just at the time of its passing, and were of a temporary nature, it would be of little consequence; but, as we before said, they appear to embrace cases which may occur hereafter.

With these suggestions we now leave it to the ob- servation of our readers.

ONE of the clauses of the Act of last session to amend

the Law of Copyright has been the subject of general remark. We allude to that prohibiting the importation, for sale or hire, of books printed abroad, in which there is a subsisting copyright, or the selling, publish

Recent statutes, however, had, as we before observed, placed many of such offences within their reach, and rendered the late enactment necessary. The other ex-ing, or exposing to sale or hire, such books, knowing cluded offences are unfit to be brought before such tribunals, on account of the frequent intricacy of the proofs, and the nice points of law likely to arise during the trial. By this we are reminded of what has often appeared to us a great defect in this branch of the criminal administration. A Judge, although possessed, as he must be, of great legal knowledge and experience, has power, when any point of law arises which he thinks himself unable to decide, to reserve it for the opinion of his brethren upon the bench, and to have it solemnly argued before them. Recorders and Justices have no such power, but must decide for themselves; and the law thus unwisely provides, that he should have assistance who least requires it, whilst they with whom to err is as probable as to be right, are left without a guide. Nor does the permitting them to try ordinary offences only remove the evil; for, as must be known to every one who practises in those courts, very difficult points of law may arise upon a trial for even a common larceny. It seems, indeed, that, whilst at the risk, it may be, of the poor man getting no justice at all,

them to have been unlawfully imported. As this strikes at a practice which has prevailed to a great extent, it may not be amiss to remind our readers that the purchase of such books by any persons for their own use is not forbidden, nor are they liable to an action under the statute for having such in their possession. By the 23rd section, books unlawfully printed or imported are to be deemed the property of the proprietor of the copyright, who may bring an action of detinue or trover for their detention or conversion. This, however, extends only to books imported for sale or hire, and the onus of proving them to be such would, we apprehend, lie upon the party bringing the action. Considering the difficulty which a proprietor of copyright will have in making out his case in such actions, it would, perhaps, have been better to have treated the possession in any part of the British dominions of a book purporting to be unlawfully printed, as primâ facie evidence of illegality, and to have made the party shew how he came by it.

ON THE EFFECT OF THE 1 VICT. c. 26, s. 33, has devised or bequeathed property. The issue are, issue of the child, or other his issue to whom he

ON THE DOCTRINE OF LAPSE.

The 33rd section of the Wills Act (1 Vict. c. 26) has given rise to conflicting opinions as regards its effect on the doctrine of lapse. It will be recollected that by that section it is enacted, "that where any person, being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will."

On the construction of this clause it has been contended, on the one hand, that where the child of a testator pre-deceases such testator, leaving issue, the effect of the statute on a testamentary gift to the deceased child is not that the issue of such deceased child will necessarily be entitled, but that the subject of 'testamentary gift is constituted by force of the statute the disposable property of the devisee or legatee, and as such will follow the dispositions of his will. (See Jarman on Wills, 314, and Sugden on Wills, pp. 111, 113). On the other hand, it has been contended, that a testator is only empowered, by the express words of the statute, to pass such interest as he may be entitled to at the time of his death, (Sect. 3); that the 24th section only refers to the estate comprised in the will; that it is impossible to say that a devisee or legatee, dying in the lifetime of the testator, is entitled at the time of his death to any estate or interest in the devise or legacy; that consequently the subject of such devise or legacy cannot be comprised in the will of the devisee or legatee so dying; and that, taking the effect of these clauses in connexion with the very obvious anxiety of the Legislature, by the 33rd section, to provide against the disentitling of the issue of the deceased child by reason of his decease in the lifetime of the testator, the intention and effect of the statute is, that, in the case of lapse, referred to by the 33rd section, the issue of the deceased donee shall take by representation. (Worthington on Wills, 459, notis).

The point is, unquestionably, one of very consider able difficulty; for while on the one side the arguments of the learned writer last cited are perhaps most consistent with a rational exposition of the intention of the Legislature, as applying a fit remedy to a specific mischief; on the other side, it must be admitted, that however artificial the reasoning in support of the opposite construction of the statute, and however singular the consequences which seem to flow from it may appear to many, such reasoning and such consequences result almost unavoidably from the force of the words used by the Legislature.

therefore, plainly the object of the care of the statute, of which the intention appears to be to preserve the provision obviously destined by the testator for them, and not to increase the testamentary power of the deceased donee. At the same time, although the inference from this part of the 33rd section is irresistible, that to prevent the provision of the issue of the deceased donee from failing by lapse was the object of the care of the Legislature, there is nothing to shew an intention to prevent their provision from failing by any other means; nothing to shew an intention of providing for them at all events. We come then to the latter part of the section, and by that it is provided that the devise or legacy which would have lapsed by the old law, shall not lapse, but "shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention &c."

Now, if the stat. 1 Vict. c. 26 had not passed, and if the child of a testator, being a devisee or legatee under his will, had survived the testator, it is incontestable that the will of such devisee or legatee would have passed the subject of the devise or legacy to him. And what the statute appears to do, is, to create by its force an imaginary state of circumstances, and then to say that such effects shall take place as if that imaginary state of circumstances were real. It says that the devise or legacy shall take effect, as if the devisee or legatee had survived the testator. Now, if it be held that the will of a devisee or legatee pre-deceasing the testator, under the circumstances referred to in the 33rd section, does not comprise in it and pass the subject of the gift, that is, in effect, to contradict the statute, and to say that the gift shall not take effect as if the donee had survived the testator; because one of the effects of his actually so surviving, would be that his will would comprise and pass it.

It is objected to this, as we have already mentioned, that a testator under the 1 Vict. c. 26 can only pass by his will such interests as he may be entitled to at the time of his death; and that he is clearly not entitled at the time of his death to the subject of a gift contained in a will, which does not take effect till after his death. That he is not actually so entitled, there can be of course no question. But that does not seem necessarily to exclude the particular operation of the statute to which we are at present addressing our argument. The question is, not whether the donee is entitled to the subject of the gift, but whether the statute does not give him the same power over it as if he were entitled to it at the time of his death: whether it does not, for the special purpose of the 33rd section, suppose the donee to be living at the death of the testator, and impress upon the gift the same qualities as it would have, if he had actually been living; among others, the quality of being comprised in and following his testamentary dispositions.

We confess that the train of reasoning by which this The language of the early part of the 33rd section construction of the statute is arrived at, although perclearly points at the mischief intended to be removed; haps somewhat artificial, appears to us to be almost an viz. the loss by the children of a deceased child of the inevitable consequence of the legal effect of the words testator, of the provision made for such child, and used in the latter part of the 33rd section. And the through him almost universally intended by the tes-question remaining is, whether the construction thus tator for the family of such child. If that had not been the intention of the Legislature, it would have been unnecessary to have made it a condition of the clause having any application, that the donee pre-deceasing his testator, should leave issue, and that such issue should be living at the death of the testator. It is plain, that if the child of a testator were to die in his lifetime, not leaving children or other issue living at the death of the testator, lapse would take place; the object of the clause being only to prevent lapse, when there are living at the death of the ancestor

put on them is inconsistent with the former part. We have observed upon that, that the anxiety of the statute to prevent failure, by lapse, of the provision destined indirectly for the issue, is manifest. But there it stops. It does not prescribe how such provision is to be preserved for the issue, whether by force of the statute itself, or by the disposition in their favour of the original' donee; nor does it even prescribe that such provision shall, in all cases, be preserved for the issue.

There is nothing therefore inconsistent with the intention of merely preserving the provision of the issue