LIMITED INTERESTS IN CONSUMABLE CHATTELS. be carried on, the case becomes one of extreme difficulty. A In the year 1797 Lord Alvanley, the then Master of the Rolls, testator in such a case vaguely intends that a farm is to be carried speaking with especial reference to “live and dead stock,” is on as he himself would have carried it on, and scarcely erer has an reported to have said : (Porter v. Tournay, 3 Ves. 314.)

“ There

idea that a strict account must be taken of all the live and dead has been great doubt among Judges what a person having a limited stock on the farm at his decease; that such stock, or its value, use of such consumable articles must do. Some learned Judges must be treated as capital, and sharply discriminated from revenue have thought they must be sold, and that a person so entitled is or income, and that every portion of the stock which is sold or to have only the interest of the money. That is a very rigid con- disposed must be charged as capital against the first taker, who is struction.” It appears that the lapse of three-quarters of a cen- only to be held entitled to what on approved financial principles is tury has been insufficient for the resolution of the doubt which was or can be deemed net profit or revenue. historical even in Lord Alvanley's time; for in the case of Cockayne Such discrimination of capital from profit or revenue involving v. Harrison, decided by Lord Romilly on the 11th ult. (20 W. R. all manner of possible and impossible inquiries, appears to be the 504), we find him saying that, there was a conflict of authority as necessary outcome of cases like Harrison v. Cockayne and Groces to the precise effect of a gift of a life interest in perishable articles, v. Wright, in which last-named case it may be observed that the such as farming stock, and that after an examination of the au- Lord Chancellor, as Sir W. P. Wood, did not think that the thorities, he had come to the conclusion that the point was not doctrine relating to things quce ipso usu consumuntur could have settled.

any application to a gift of farming stock, but only to cases where In the case last named, the testator, a tenant farmer a personal use exhausts the subject of gift. This, however, is quite at Sneinton, in the county of Nottingham, had bequeathed opposed to the case of Bryantv. Easterson, before Sir J. Stuart, V.C., to his wife, during her widowhood, his farming stock and (32 L. T. Rep. 352), where the first taker was held absolutely all other his personal estate at Sneinton, with a gift over on entitled, without any liability whatever, to account for the value of her death or second marriage. On the testator's death, in 1868, consumable stock as capital. The whole subject requires discusthe widow entered on the farm and possessed herself of the farm- sion and elucidation in the appellate courts. ing stock, and in 1870 married again. In a suit for the administration of the testator's estate, the chief clerk had certified that the farming stock included first, growing roots, seeds, tillage, and manure (included in the term of tenant right); secondly, general

THE QUALIFICATION OF JUSTICES OF THE PEACE. crops; thirdly, implements of husbandry; fourthly, horses, cattle, The Earl of ALBEMARLE in the session of 1870 introduced into the and pigs; and the question was, whether the widow's interest in House of Lords a Bill, the object of which was to do away with the those articles terminated with her widowhood, or was absolute. property qualification which the law now requires for such as are

The Master of the Rolls said that he should follow his own de- placed in the Commission of the Peace. The measure was, hos. cision in Phillips v. Beal (32 Beav. 25), and hold that as the ever, withdrawn. On Thursday last week the noble Earl introduced farming stock was apparently given in order that the farm another Bill on the same subject, though its provisions somewhat might be carried on, it was a gift of a limited interest only ; differed from those of the previous Bill. Instead of simply reand that if any part of the stock had been sold, she would pealing the statute which now regulates the qualification of be entitled only to the income arising from the invested pro- magistrates as was done by the former Bill, the provisions of the ceeds. The case of Phillips v. Beal, to which reference was latter measure only amended the law by rendering eligible for the made, when closely examined, seems scarcely an authority for office persons who were not possessed of land, but who had incomes the case just decided by Lord Romilly. There a wine merchant, from personal property of the same amount as the estate now possessed of a large stock of wine, bequeathed all his household required in land. Such estate must at present comprise freehold goods, furniture, &c., and everything he died possessed of, to or copyhold estate for one's own use in possession for life, or for his wife for life, and after her death bequeathed the whole of his some greater estate in law or in equity, or an estate for years effects that might be then remaining to his daughter ; and it determinable on a life or lives, or for a certain term originally was held that the wife took absolutely the wine which the testator created for twenty-one years or more of the clear yearly value of had for private use, but a life interest only in the rest.

£100 over and above what will satisfy all incumbrances affecting Now, as it seems to us, this decision may be supported on the the same or a reversion or remainder in lands of the value of $300 ground that the wine constituting the stock in trade passed as residue a year. This is so since the statute 18 Geo. 2, c. 20, which reunder the expression “everything that I may die possessed of,” and enácted, with slight modifications, an Act passed in the 5 Geo. 2. not specifically, and that to such residuary bequest, the rule as to Previous to that the qualification was that imposed by the conversion established in Howe v. Earl of Dartmouth was properly 18 Hen. 6, c. 11, the first statute that required a fixed property applicable. There was no intention apparent that the widow qualification for the magistracy, which was an interest in lands to should carry on the wine trade of her deceased husband, and it the amount of £20 by the year. Various statutes had been enacted must therefore be admitted that, if the rule in Howe v. Earl of prior to the last-named Act, relating to the appointment and Dartmouth does not apply, Phillips v. Beale is a

qualifications of Justices of the Peace, but they merely required the stronger than Cockayne v. Harrison. The terdency of modern persons to be appointed should be men of substance without fixing decision, and notably of the decisions of Lord Romilly and any particular sum. There was, doubtless, good ground for the of Lord Hatherley when Vice-Chancellor, seems to be towards restriction in olden times, when men of property formed the only cutting down as far as possible the rule established-that educated class in the country; but the tiines have since changed, there can be no limitations of specific chattels quæ ipso and it is difficult to understand why a qualification so anomalous

consumuntur (a doctrine sometimes impressed on the should be maintained, and the more especially inasmuch as it often student mind under the expression that “there cannot be a tenant keeps men out of the commission of the peace, who, from their for life of a bottle of wine”) by creating exceptions which we fear character, influence, and fitness, are quite as capable to administer will, in many cases, give rise to expensive and impracticable justice as those who have landed estates. But, in our opinion, the inquiries, involving more mischief than the maintenance of a hard whole system is inconsistent with modern ideas. Justice's justice and fast rule, which, like other rules, must sometimes countervene has become proverbial, and it seems a mockery to entrust the the intention of testators. Of the existence of the rule itself there administration of the laws to untrained men. The jurisdiction of can be no doubt. In Andrews v. Andrews (1 Coll. 691), Knight justices of the peace is now most extensive, comprising as, it does Bruce, V.C. said, “ Upon the propriety of the rule that the gift of their power to deal summarily with cases of much importance, and the use and enjoyment of consumable articles for life is the their jurisdiction as the Judges of the Courts of Quarter Sessions. gift of the absolute interest I do not know that I ever thought, In the more remote times there was always a quorum which was because I have considered it as settled in this court for many formed of lawyers, and it was necessary that one of the quorum years. That such is the rule appears to me clear, and I must act should always be present to try any of the more important

but even that is now gone, so that we are far worse off than our The rule of law we confess appears to us to go further than the ancestors were. It is true in large towns stipendiary magistrates reason of the case requires. While fully admitting that a person are gradually being appointed, and in many counties barrister to whom a restricted interest in consumable articles is limited is at of experience are elected chairmen of Quarter Sessions. Lord liberty not merely to consume them personally, or dissipate them ALBEMARLE would be a great benefactor of his country if he were in hospitality, and even to give them away or sell them at pleasure, to strike at the root of the evil, and if he were able to succeed we never could understand why such articles if not so consumed in entirely abrogating the present system and obtaining in its or disposed of, or what remained of them, should not be permitted stead the universal appointment of stipendiaries. The question of to devolve according to the intention of the settlor or testator, in cost is the only real objection. But it is by no means clear that the same way that a fund limited in default of appointment the country would be much burdened by the change, and even if by the first taker would devolve according to such intention. it were, the better administration of justice which would in. In cases where the duration of the first taker's interest is doubtedly be secured would be more than ample compensation. very short, and the amount of consumables limited is large, In the discussion in the House of Lords on Lord ALBEMARLE'S the first taker may have neither the opportunity nor the Bill, the chief objection raised to any change was that it would wish to consume or dispose of them, and there the hardship interfere with the existing powers of justices orer the finances of the rule is obviously considerable. Where, as in Harrison of the counties. That was altogether an issue beside the question, v. Cockayne, and in the earlier case of Groves v. Wright (2 K. & J. and it cannot be long before we shall have in every county a 347), the court has inferred that the limited interest in the financial board, luly elected by the ratepayers, instead of an farming stock was only given in order that the farm might 'irresponsible body.

case

even

U8u

cases;

upon it."

ex. div.

915; New Three per Cents., 91 to 91; Exchequer Bills, 29. to 78. prem.; India Five per Cent. Stock, 110 to 1102 ; ditto Four per Cent., 102) to 103; ditto Enfaced Paper Four per Cent., 96% to 97* ; ditto Five and a Half Per Cent., 108 to 108 ; Bank of England Stock, 241 to 243 ; Metropolitan Three and a Half per Cent., 961 to 961; and French Rentes in this market, 543 to 55).

The latest price for French Rentes received from Paris was 55f. 30c. market flat.

In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 90 to 90+, ex. div. ; 10-40 Bonds, 89 to 89} ; Atlantic and Great Western Bonds, 413

to 42; ditto Debentures, 51 to 52} ; Erie Rail. way Shares, 511 to 514; Illinois, 109 to 110; and United States Funded Loan, 89 to 89. ex. div.

In the Railway Market the prices are :-Caledonians, 1131 to 1134 ex. div.; Great Eastern, 511 to 52 ; Great Northern, 134 to 135} ; ditto, A, 154 to 155; Great Western, 1105 to 1103 ; Lancashire and Yorkshire, 1574 to 1577; London and Brighton, 81 to 811 ; London, Chatham, and Dover, 261 to 27 ; London and North-Western, 1504 to 1504; London and South-Western, 107 to 108; Manchester and Sheffield, 754 to 752 Metropolitan, 67 to 67; ditto District, 31 to 313 ; Midland, 143} to 143; North British, 623 to 631; North Eastern Consols, 1694 to 169; SouthEastern, 105 to 105}; ditto deferred, 771 to 78}; Grand Trunk of Canada, 20 to 204; Great Western of Canada, 21 to 21); Antwerp and Rotterdam, 181 to 191; Great Luxembourg, 184 to 19; and Lombardo Venetian, 177 to 185.

The prices of the principal Foreign Stocks are as follows: Argen. tine, 1808, 961 to 97* ; do., 6 per cent., 1871, 92, to 93; Brazilian, 5 per

cent., 1865, 95% to 96; do., 5 per cent., 1871, 941 to 941; Egyptian, 7 per

7 cent., 1868, 87% to 878 ; do., Viceroy Loan, 92 to 94; do., Khedive Mortgage Loan, 773 to 773 ; French Morgan 6 per cent. Loan, 974 to 978; do., National 5 per cent. 1871, 5% to 5% pm. ; Italian of 1861, 67 to 671; Mexican, 154 to 15}; Paraguay 8 percent. Loan, 94 to 95; Peru. vian, 5 per cent. 1865, 101 to 1011; do. 6 per cent. 1870, 80 to 81 ; Russian 5 per cent. 1871, 90} to 91}; do. Nicolai Rail. Bonds, 76 to 77; Spanish, 29% to 293 ; do. 3 per cent., 1871, 29 to 291; Turkish, 5 per cent. 1865, 52} to 52> ; do. 6 per cent. 1865, 71 to 71}; do. 6 per cent. 1869, 60 to 60%; and do. 6 per cent. 1871, 70, to 714,

The New Russian Loan is quoted at 1} to 14 pm.; and the Peruvian of 1872 at ļ to pm.

In the Telegraph Market, Anglo-American Stock is quoted at 117 to 119; Anglo-Mediterranean, 172 to 174; British Australian, 9} to 91; British Indian Extension, 11% to 12; ditto Submarine, 104 to 10, Chinas, 9 to 9; Cubas, 7 to 77; Falmouths, 11 to 11}; Great Northern, 15% to 16; Marseilles, 87 to 94 ; Mediterranean Extension, 51 to 6); French Cables, 22 to 221; and West India and Panama, 64 to 61.

In miscellaneous shares the prices are as follows :-Credit Foncier of England, 54 to 5% ; Crystal Palace, 22 to 24; General Credit and Discount, 2 to 2% pm. ; International Finance, à dis, to } pm. ; Hooper's Telegraph Works, 2 to 2 pm. ; Hudson's Bay, 104 to 102 ; India Rabber and Gutta Percha, 43 to 44; National Discount, 131 to 14; Telegraph Construction, 32 to 32} ; Royal Mail Steam, 90 to 92; Native Guano, 15 to 18; Phosphate Sewage, 30 to 33; New Sombrero Phosphate, 8} to 9; and Phospho Guano, 11 to 11).

ANOTHER.

NOTES OF THE WEEK,

COURT OF APPEAL IN CHANCERY. which expression meant not under their control
April 15 and 17.

for the purpose of stopping them at Swindon sta

tion, and were therefore not subject to the coveHOUSE OF LORDS.

(Before the LORD CHANCELLOR and the LORDS nant. As the company had ceased to stop these

JUSTICES.)
Friday, April 12.

trains at Swindon for the period of ten minutes PHILLIPS v. THE GREAT WESTERN RAILWAY before they received formal notice from the PostOVEREND, GURNEY, AND Co. v. GIBB AND

COMPANY.

master-General, there would be no costs, if the

plaintiff would undertake not to proceed at law in Railway company-Covenant to stop trains at reCompany-Lrability of directors. freshment station-Trains not under control of stoppage of the trains prior to the receipt of

respect of any damage occasioned by the nonThis was an appeal from a decision of the Lord

compony excepted-Mails-Postmaster-General formal notice ; otherwise the appeal must be disChancellor, reversing an order of Malins, V.C.

1 f. 2 Vict. c. 98.

missed with costs. The appellants filed a bill against the respon.

This was an appeal from a decision of Wickens,
V.C. By an indenture dated the 18th Dec. 1941; Teesdale, Nelson, and Co,

Solicitors for the appellants, Young, Maples, dents, the surviving first directors of the com. pany, seeking to render them liable for neglect of the Great Western Railway Company granted to duty and breach of trust in having carried out

Solicitors for the respondent, Park and W. B. Messrs. Rigby, their executors and administrators

Nelson. the powers given them by the company in pur nominal" rental of id. per annum, a lease of cer.

and assigns, for a term of ninety-nine years, at a chasing the business of the old firm of Overend, tain land at the Swindon station of the railway,

ROLLS COURT. Gurney, and Co., when they knew that that firm, was insolvent; and also for having neglected to whereon the lessees had at their own expense

March 18 and April 16. obtain a sufficient guarantee by that firm, or a

erected certain refreshment and waiting rooms. mortgage of the private estates of the partners, the company that, in consideration of the outlay

Re THE ENGLISH ASSURANCE COMPANY This lease contained a covenant on the part of

(HOLDIch's CASE). to secure or make good the difference between what they knew to be the actual and nominal

of the lessees, they would give them every facility Assurance Company-Winding-up-Policy holders value of the assets of the old firm. There was

for enabling them to obtain an adequate return by -Amount of proof-Principles on which estimate a demurrer to the bill, on the grounds that it

means of the rents and profits to be derived from is to be made. was incompetent for a company to sue its

the refreshment rooms, and that all trains carry. This was a specimen case, raising the question as own directors for such a breach of duty; that the ing passengers, not being goods trains, or trains to the mode of assessing the amount for which proper remedy was by an action at law for to be sent express, or for special purposes, or policy holders were entitled to prove in the damages; and that, if the Court of Chancery which should pass the Swindon Station, either up English Assurance Company granted a policy for

trains not under the control of the company, winding-up of a life office. In July 1870 the could give any relief, it was under the machinery of the Companies Act 1862. Malins, V.C. over

or down the line, should, save in cases of £500 on the life of Joseph Smith, which was subruled this demurrer, chiefly on the authority of emergency, or unusual delay arising from ac. sequently assigned to Mr. Holdich. The company Charitable Corporation v. Sutton (2 Atk. 100). cidents, stop there for refreshment of passengers was now in course of liquidation, and a summons The Lord Chancellor reversed the decision of for a reasonable period of about ten minutes; and was taken out on behalf of Mr. Holdich that he Malins, V.C., on the grounds that the

that so far as the company could influence trains might be permitted to prove in the winding-up pany must take the consequences of having en.

not under their control to stop for the like purpose against the assets of the company under the 158th trusted their money to persons of sanguine tem. they would do so;" and they engaged not to do any section of the Companies Act 1862, which provides perament, who made a purchase, which turned out

act which should have an effect contrary to that that where a company is being wound-up, all debts to be a bad one;" and that there was not, on the agreement. In 1818 Messrs. Rigby assigned their payable on a contingency, and all claims against part of the directors, such crassa negligentia as to

interest under the lease to the plaintiff. In Nov. the company, present or future, certain or continamount to fraud. The case is reported below in 1871 the Postmaster-General, acting in pursuance gent, ascertained or sounding only in damages, 20 L. T. Rep. N. S. 652; 21 Id. 73; 4 L. Rep. Ch.

of the powers conferred upon him by the 1 & 2 shall be admissible to proof against the company, App. 701.

Vict. c. 98, gave the company notice that the a just estimate being made so far as is possible of

9 15 a.m. t.ain from Paddington and the 12 25 p.m. the value of all such debts or claims as may be Cotton, Q.C. and Ferrers for the appellants. train from Exeter must in future stop with the subject to any contingency, or sound only in

Sir R. Palmer, Q.C., Sir G. Honyman, Q.C., and mails at Swindon for five minutes only, instead of damages, or for some other reason, do not bear : Jackson, for the respondents.

ten as theretofore. The company having complied certain value. In Bell's case (L. Rep. 9 Eq. 716)

with this requisition, the plaintiff instituted the James, V.C. held that a policy holder was The LORD CHANCELLOR now gave judgment in present suit to prevent them from breaking the entitled to prove for the sum which would favour of the respondents, on the grounds stated covenant. Thy Vice-Chancellor granted an injunc- be required by a solvent assurance otfice, in his original judgment.

tion restraining the company from carrying pas. having the same rate of premiums and the same Lord CHELMSFORD said that the respondents sengers by these two trains or either of them, so extent of proprietary capital as the company in were appointed directors for the very purpose of iong as they should be precluded by the regulations liquidation, to be paid, in order to give the policy. purchasing the business of the old company.

of the Postmaster-General from stopping at holder a policy of the same amount, under the There was no allegation of fraud or mala fides Swindon for any shorter time than a reasonable same conditions, whether ordinary or special, at against the respondents; but it was virtually period of about ten minutes : (See 26 L. T. Rep. the same premium. Lord Cairns, in the Albert sought to make them responsible for acting bonâ N. S. 157, where the case is reported.) From this arbitration in Lancaster's

case (16 Solicitors' fide in the exercise of the powers entrusted to order the railway company appealed.

Journal, 103) adopted the following mode of as. them, because this purchase turned out dis. The Solicitor-General (Sir G. Jessel, Q. C.), sessment, called the " pure premium" valuation. astrously. The appeal must be dismissed with Mackeson, Q. C., and H. A. Giffard, for the appel. The then present value of the reversion in the costs. lants.

sum assured at the date of the winding-up order Lord WESTBURY and Lord COLONSAY con. Q.C., and Montague Cookson, for the respondent.

Sir Roundell Palmer, Q.C., Osborne Morgan, is to be ascertained according to certain tables, curred.

and the then present value of the future annual

Their LORDSHIPS were unanimously of opinion premiums, taking into consideration the pure preSolicitors for the appellants, Markby and Tarry that the trains in question being subject io the miums only; and the difference between those Solicitors for the respondents, Uptons, Johnson, regulations of the Postmaster-General,

two sums is to be the value of the claim on a and Co.

“trains not under the control of the company,” | policy.

66

com

were

= Southgate, Q.C. and Field for Mr. Holdich. husband of one of the deceased's daughters. On in cases brought by way of appeal from deci.

Sir R. Baggallay, Q.C. and Haddan for the 28th Feb. 1871 a subpoena was issued, calling on sions of the courts of equity. Since the union oficial liquidator.

C. W. Laws to bring in and leave in the principal with Scotland, in which country there is not that Lord Romilly, after referring to Bell's case registry the original paper or script purporting division of law and equity which exists in England, and Lancaster's case, said that in the latter case to be the will of William Laws: C. W. Laws did you have had jurisdiction in respect of both Lord Cairns, in effect, decided that the question not bring in the will, and

branches, and since the union with Ireland you of the state of health of assured parties at the Searle now moved on behalf of Rogers, the have had jurisdiction in appeals from the Irish date of the winding-up order could not be taken deceased's son-in-law, for a subpæna under the Court of Chancery. This jurisdiction in equity into consideration, and seemed to have overlooked 26th section, directing C. W. Laws to attend and you have possessed for about 200 years, but not the fact that part of the bargain between the be examined. As the witness resided in Northum. without contests. I do not, however, allude to office and the assured is, that the latter is to be berland, he suggested that he should attend in the those contests with the view of throwing the least entitled to the enhanced value of the policy district registry to be examined.

doubt on your jurisdiction, because they are arising from accident or disease. He saw no rea- Lord PENZANCE, having referred to the 26th strongly confirmatory of the fact that since the son why the policy holder should lose the pecu- section, held that the court had no power to make period to which I have just referred it has been niary advantage which accident or disease gave the order in this form. The order must go for C. continually exercised. But there are other matters him, by reason of the company being wound-up. W. Laws to attend and be examined in open court, in which you never have exercised jurisdiction, He thought that the rule was correctly laid down or interrogatories might be exhibited to him. namely, in appeals from the colonies, in appeals in Bell's case, no mely, that the measure of proof Solicitors : Miller and Smith.

from the Admiralty, and in appeals from the is the sum which would, under the peculiar cir.

ecclesiastical courts. Besides the appellate juris. cumstances, be required to purchase a policy of

diction, your Lordships have wide jurisdiction the same amount, at the same premium, in a per:

which is not appellate, and with which neither fectly solvent office and that that rule should be LEGISLATION AND JURIS- my resolution nor my bill proposes to deal. followed in the present case.

PRUDENCE,

Your Lordships have, of course, jurisdiction Solicitors: Field and Co., Young, Maples, and Co.

respecting your own privileges and all that HOUSE OF LORDS.

concerns them. You have a jurisdiction in

respect of claims to peerages, and you have a Monday, April 15.

criminal jurisdiction, if, unfortunately, a criminal V. C. BACON'S COURT.

APPELLATE JURISDICTION.

charge should be made against any peer. Your Tuesday, April 16.

The LORD CHANCELLOR.-My Lords, in rising Lordships have full jurisdiction, also, in cases of MACKETT V. MACKETT.

to move the resolution which I have put on the impeachment brought by order of the other House. Will-Construction-Trust or absolute interest. notice paper for the consideration of the House, I In such cases this House is a court in which high JOHN BROUGH, by his will dated the 16th Sept. wish in the first instance to again state what I crimes and misdemeanours may be tried. The 1861, gave the residue of his property, both real mentioned on a former occasion-namely, that my Bill which I shall hereafter introduce is confined and personal, to Sarah Mackett, the wife of George reason for proceeding by this method rather than entirely to the appellate jurisdiction which this Smith Mackett, and to her heirs and assigns for by introducing at once my Bill for the constitu. Honse exercises in respect of common law and ever, but upon trust as to all the freeholds for the tion of the court which I would wish to establish, equity in England, and of civil proceedings in sole and separate use, and for the bringing up and if your Lordships agree to transmit to another Scotland, and also to the appellate jurisdiction maintenance of her son, John Mackett. And as

tribunal the appellate jurisdiction of this House, exercised by it in respect of cases arising in to the personal preperty so given as aforesaid to was that I thought it more respectful to your Ireland. I have not, however, confined my investhe said Sarah Mackett, to and for her own proper exercised by this House, though in many instances facts of so much interest in connection with the

Lordships that a jurisdiction which had long been tigations to those particular objects. There are use and benefit for ever, but not to be subject or liable to the debts, control, or engagements of her not without considerable contest, and though it proceedings of this House in respect of its appelpresent or any future husband, and her receipt was not introduced originally without considerable late jurisdiction that I think I ought not to omit alone to be a good and sufficient discharge for the contest, should not be abolished by means of a to go back a little and mention some of them to same, and the proceeds to be applied by her in the Bill, before the whole subject had been submitted your Lordships. A contest arose in the reign of bringing up and maintenance of the said John for your Lordships' careful consideration. I am Charles II., which has been given in some detail Mackett, and all other the children of the said aware that, in proposing to effect a great change by Sir Matthew Hale, whose account of it, with Sarah Mackett. The testator died on the 25th of this kind in a long-established institution, and Harvey's notes, will be found in the library. The Jan. 1867, and a suit was instituted for the admi: nected with tho administration of justice, the bur. clearly by Lord St. Leonards. Your Lordships?

more especially in the case of an institution con- matter has been entered into more fully and more nistration

of his estate. A question as to the per: den is imposed on me of showing that the institution jurisdiction in writs of error from the courts of sonal property comprised in the above gift was raised upon further consideration–viz., whether itself requires a total change in consequence of common law dates, as I have already mentioned, there was a trust for the maintenance of children, defects which have been found to exist in carrying from very remote period anterior to the Great or whether Sarah Mackett took the property abso? its functions into operation, and

also of showing Charter. It dates, indeed, from the beginning

of lutely, discharged from any such trust.

that the change proposed to be made will remedy the Norman rule in this country, when the Karslake, Q.C., Bristowe, Q.C., and Everitt for those defects. Indeed, this is a burden which I sovereign was regarded as the author of justice. the plaintiffs.

apprehend is imposed on every one who proposes Petitions from those who sought justice were adKay, Q.C. and Herbert Smith, Amphlett, Q.C., a change in what has been long established. Now, dressed to the King, who arranged in the manner Hinde Palmer, Q.C., and Hill for other parties.

my Lords, as regards this particular change, if I he thought best for hearing and deciding upon The VICE-CHANCELLOR held that the case was were about to propose that your Lordships should them. When Parliament was convened he had governed by Lambe v. Eames (25 L. T. Rep. N.S. surrender anything which contributed to the use his peers; at other times he was surrounded by 175), and that there was no trust.

Sarah Mackett ful portion of your Lordships' functions in respect his great officers of state, whose assemblies after. took the property absolutely, and without con

of the administration of justice in this kingdom, wards branched off into courts of justice. There dition.

or, if I supposed that the result of the transfer of was the Aula Regis and the Concilium Regis, with Solicitors : Baylis; Fielder and Sumner.

your jurisdiction in respect of appeals would be to officers which corresponded to the Lord Chancellor weaken the authority of your Lordships' House, I and the Lord Chief Justice, the latter being called

should hesitate for a long time indeed before I re- the chief justiciary. This system of moving COURT OF PROBATE.

commended any such proposal to the notice of tribunals was continued up to the time of the Tuesday, April 16.

your Lordships. But, my Lords, I shall be pre. Great Charter, but as it had been found incon(Before Lord PENZANCE.)

pared to show-I trust with as much brevity as venient it was provided when the Great Charter In the Goods of BAILLIE BRETON.

possible, though the subject is a long one-that in was framed that there should be a stationary

reality your Lordships never exercised as a body court. Then the Court of Common Pleas branched Will-Imperfect attestation clause--Attesting wit- an appellate jurisdiction without such an amount off, but reference was made to the peers, and no

nesses not forthcoming--Citation of advertise- of contest as tended to weaken the authority of doubt in this way writs of error found their way ment ordered.

this House, and that it is a quarter of a century to your Lordships' House from the courts of BAILLIE BRETON died leaving a holograph will, since, in the case of Mr. O'Connell, your Lord. common law. It will be found that, from the bedated 28th Dec. 1863, purporting to be attested by ships as a body declined to exercise such jurisdic. ginning of the reign of Edward I. down to the two witnesses. The attestation clanse was im. tion. I shall show also that men of great reign of Henry IV., the appellate jurisdiction conperfect, but it appeared by an affidavit from Mr. eminence in the law have been so struck with tinued to be exercised in the case of writs of Burnaby, the residuary legatee, that these two the anomalies of the appellate jurisdiction of error coming from the courts of common law; but witnesses were in the service of the testator, this House that they have been induced to after that time there appeared to be a lull, caused that they could not be found now, and that no one declare that it was extremely unsatisfactory. by the Wars of the Roses or for some other reason. could be found who knew their handwriting. I think it will be found that even in the House The records of the times do not show that any There was an affidavit from the niece of the tes. itself, at a time when opinion was not yet ripe for controversy arose as to what was and what was tator to the effect that the whole will was in the any measures of very extensive reform, there was not within the jurisdiction of the Lords, but during handwriting of the deceased.

a misgiving on the part of men of great influence the reign of Henry IV. this House repeatedly asLord PeNZANCE.-You ought to advertise for with your Lordships, arising from a conviction serted its sole right to hear and decide on appeals. the attesting witnesses. The time is so recent that the system did not act in such a manner as to that they cannot both have disappeared, but if give satisfaction and inspire confidence. I may right in respect of appeals was vested in the

It protested against the supposition that any they do not answer to the advertisement you may call your Lordships' attention to the fact that other House of Parliament. In the reign of take the grant.

within the last sixty years three committees have James I. the Commons began to assert their priSolicitor, Lewis.

been appointed by this House to investigate the vileges. The way in which they did so was not

subject of its appellate jurisdiction, with the view very satisfactory, nor do I think the action of the In the Goods of W. LAWS.

of seeing what could be done for its reform and Lords was very much more so. A Roman Catholic Will not produced by executor in whose possession improvement. The first of those committees was gentleman, Mr. Edward Floyd, was accused of hav. it was supposed to be-Citation to produce not appointed in 1811, the next in 1823—both in the time ing disparaged the Electress Palatine, daughter of

obeyed-Subpena to attend and be examined. of Lord Eldon, who occupied the woolsack-and the King, and the Commons took upon themselves WILLIAM LAW3, late of Prudhoe Castle, in the the third in 1855. In respect of the members who to try him, order him to the pillory, and fine him county of Northumberland, died 17th Aug. 1856, composed it, the last was a very powerful com. £1000. The House of Lords took offence. The having duly executed a certain paper writing or mittee. But before I refer to any of the recom- Lords asserted that the jurisdiction lay with them, script, purporting to be his will, and bearing date mendations, it may be as well that I should and not with the Commons, and they ordered Mr. 10th June 1853, whereby he appointed his wife briefly state in what way the appellate jurisdic Floyd to be branded on the forehead and fined Sarah Laws, and her sons, Cuthbert William tion of this House attained to full and complete £5000. That was an attempt to establish an Greville Laws, William Laws, and John Laws, his existence. You have now, and you have had from original jurisdiction in criminal cases. Lord St. trustees and executors. Sarah Laws died May a very early period, full jurisdiction in writs of Leonards calls attention to a case which shows 1857, and William Laws died 24th Feb. 1861, error coming from the common law courts in the difficulty the Lords experienced when en. without proving the will of William Laws. It respect of conclusions and decisions of these deavouring to assert an original jurisdiction, and was suppose to be in the custody of C. W. Laws, courts. You have also and have had, but also an appellate jurisdiction respecting cases who had supplied a copy to Mr. J. Rogers, the 'from a very much later period, jurisdiction I arising in the Court of Chancery. In the

two gentlemen named Matthews there was an ap- said mode onght to be effected. Well, the inquiry whole list, for I have not the names before me. plication to this House to exercise this double produced this result – that it was found as a Among the law lords were Lord Brougham, Lord jurisdiction. The Lords came to a singular reso. matter of fact the Lord Chancellor was frequently Lyndhurst, Lord Abinger, and Lord Campbell

. lution, directing the Lord Keeper to apply to the obliged to be absent in consequence of his Well, what was the report of that committee? King for the appointment of commissioners to try attendance being needed in the Court of Chancery, They reported that evidence had been given before the case, which resolution showed the doubts en. and it was also found that some 290 or 300 appeals them which spoke of the tribunal, as it was con. tertained by their Lordships in respect of original were in arrear. It was suggested, in order to stituted, as giving satisfaction, but that the large jurisdiction and of appellate jurisdiction not aris. enable the Lord Chancellor to attend more preponderance of opinion was in favour of decided ing on writ of error. In the time of Lord Keeper frequently, that an additional judge in Chancery changes being made in its administration of jus. Williams there was a case which was interesting on should be appointed. It was believed that if a tice. They go on to speak of the defects of the somewhat similar grounds. In the time of the Long Vice-Chancellor were appointed, the Lord Chan- tribunal. Among these they enumerate the Parliament matters respecting the jurisdiction of cellor would be enabled to sit in this House for difficulty of securing the attendance of peers at their Lordships went on in a very irregular way, appeals on three days in the week during the the hearing of appeals ; and the House, after what and ultimately there arose the great case referred session. This was not very satisfactory. Subse. I have stated, will not be surprised to hear that to by Hale. One Mr. Skinner complained of the quently the appointment of deputy speakers was this was naturally a subject of complaint on the East India Company in regard to an estate which recommended, but there was no provision for the part of the witnesses, and that it made a conhe possessed in one of the East India islands. He attendance of other law lords. "In 1813 a Vice- siderable impression on the committee. They made a singular claim to this House for relief, Chancellor was appointed, and the Lord Chan. speak also of a second grievance, and this I may which, if it had been acceded to, would have cellor had more time to give to appeals. On look. observe is involved essentially in the very con, established your Lordships' authority over every ing at the first volume of the reports for 1813, stitution of the tribunal, which, being constituted case arising in the colonies. Lord St. Leonards I find there were forty-two appeals, of which only as the House of Peers, sits only while the House cites, without disapprobation, language of Sir eight or nine were English. The majority were is sitting. The second grievance is that, as the Matthew Hale, which is very strong as bearing Scotch, and a few were Irish. Lord Redesdale sat House usually sits only from February to August, upon the exercise of judicial functions by peers with Lord Eldon in the majority of the cases, and while the ordinary courts of law sit from November who are not lawyers. Hale asks whether it could no court of two members could have been stronger ; to August, three months are lost with respect to be supposed that any one came into the world but in one-third of the whole number of appeals the hearing of appeals. Your Lordships will imbued with the knowledge of the laws of this heard during the session of that year, Lord Eldon further observe, although I do not know that the kingdom, or that the acquisition of a title of sat alone. I say nothing about the fact of some report of the committee refers to the point, honour could inspire him with that knowledge. of the appeals being from his own decisions in the that the House sits only four days a week. A case was decided in your Lordships' House in Court of Chancery. I presume that on many The committee found, besides, that complaints opposition to the opinions of all the Judges of the occasions he was assisted by two lay peers, but, were made by certain persons in Scotlandtime. It has been said that it was well decided, except in one case, there is nothing said about though Lord Moncrieff, who was at the time and perhaps it may have been ; but certainly it those noble Lords having opened their mouths. Lord Advocate, did not, I believe, take that was not decided in accordance with the law as it The exception is that of a Scotch marriage—a case view—that no peer had a seat in the House who existed when the decision was given. It is im. which seems to have required much investigation. was acquainted with the system of Scotch judica. possible that the appellate jurisdiction of your There was a question as to whether the lady had ture, or who had been on the Bench in Scotland. Lordships' House could have continued to be ex. given her consent to the marriage, and a lay lord Lastly came the question of the greater expense ercised for so long a period by the House as a body is reported to have said that when the gentleman created by the present mode of hearing appeals 25 were it not that the opinionsdelivered were in reality asked the lady she made a courtesy, and this the lay distinguished from that involved in the hearing of those of very great lawyers. Those opinions were lord took to be a consent. (A laugh.) It could not appeals in the courts below. Such were the main accepted because of the authority of the men be considered a satisfactory state of things when points touched upon in the report, and I think from whom they proceeded. Certainly they did the hearing of appeals, the decisions on which were you will regard it as a very strong report, coming not derive additional weight from being the de. to be pronounced in the name of the House of from men who can scarcely be looked upon as cisions of your Lordships' House. In the reign Lords, was relegated to a single judge and two being desirous of change. I now beg leave to call of Queen Anne a remarkable case arose. Pro- non.assisting lay assistants. In 1823 and 1824 your Lordships' attention to the work of Lord St. ceedings were taken against a sheriff for refusing matters were not found to be much more satisfac. Leonards on the law of property, from the introto record a vote at an election of a member of tory; an inquiry was instituted, and a committee ductory chapter of which it will be seen that he Parliament. The case came before this House ; recommended the appointment of Deputy Speakers, in a great degree concurs in the inexpediency of but the House of Commons protested against the and also that there should be ballot for lords to this House exercising an appellate jurisdiction in Lords pronouncing the decision as to whu ought make up a quorum, the penalty for non-attendance the mode in which it has been exercised, and which and who ought not to vote for a member of Par. to be £50. That was a somewhat singular pro. I have endeavoured to describe. The witnesses liament. After much discussion this House came posal to make for the purpose of insuring the due examined before the committee were, I may add, to a decision, on which the voting was 50 peers to administration of justice." I now come to the state numerous, and well acquainted with the subject. 16, 13 peers out of the 16 entering a protest against of affairs in the time of Lord Lyndhurst. During My noble and learned friend to whom I have the House taking upon itself to come to a judg. that time I myself was present on several occa already referred was, I think, Solicitor-General at ment founded on legal arguments. All those sions when Lord Lyndhurst sat on appeals with the time, and he gave very full testimony with cases are collected in a note on Mr. O'Connell's two lay lords, who took no part in the discussion, respect to the grievances which I have mentioned. case in the second volume of the House of Lords who employed themselves, perhaps, in reading á He described the way in which a noble lord would Reports. Before the case of O'Connell there was newspaper, and who seemed to take very little in. come into the House during the hearing of an one which excited a good deal of interest. It was terest in what was going on. Then it happened appeal, read the newspaper or chat with other the case of the Bishop of London v. Fitch. The that the case did not always end in one day, and noble lords, and not appear to take any interest question as to whether a general bond of resigna. that the next day there were two other lay lords, in the particular case in hand. The report of tion-one which did not specify the particular and on the third day, when the decision was given, the committee, moreover, refers to other matters person in whose favour it was made, was a valid two others, who had not beon in attendance on which may be worthy of your Lordships' attenone. The bishops took a prominent part in the either of the previous days. On one occasion it tion, although I by no means put them in the discussion of that case, and addressed to the occurred to me, much to my mortification, to fore front of the question. It speaks of the inHouse arguments which will be found in Lord St. have to accompany a very learned French jurist, convenience arising from the mode of delivering Leonards' book, and in which they stated that who unfortunately understood English, to the judgment, caused by the circumstance that it is though certain propositions might be good law, House of Lords when an appeal was being heard, delivered as the judgment of the House of they were not founded on philosophy or on re- and I was obliged to tell him, in answer to a Lords. It points out that it is delivered in the ligion. By a majority of 19 to 18 the House question which he put me, how matters were really form of a speech very often, and not ex cathedri, decided against the legality of the bond. The last being conducted, although I was in hopes that ho but standing up, and that a noble lord is in conse time at which an attempt was made to have the would not see through it. Now, to speak of dignity quence occasionally led to become more excited appellate jurisdiction of your Lordships exercised under such circumstances, so far as this House is in its delivery than is quite consistent with the by the House as a body was on the occasion of concerned, seems to me to be a political mistake tone of judicial eloquence, the table being somethe appeal in Mr. O'Connell's case. That would of a very serious character. So far from such a time slapped violently with the hand. Fault was have been a v.ry dangerous repetition of the privi- state of things contributing to the dignity of your also found with the absence of forensic attire ; ledge. Some noble lords expressed a readiness to Lordships' House, I can, I confess, see nothing but these are points on which I do not now wish to vote who had not heard the arguments in more undignified than that one or two noble lords lay any stress, in comparison with the other points the case, and others who had heard them should be placed in the painful position which I which I have mentioned, such as the loss of time, but who were not learned in the law, were desirous have just described, and I can hardly express my the expense, and, above all, the pretending of taking the same course. A remonstrance having sense of that position in stronger terms than were that the decisions given are the decisions of been made on the subject, they wisely resolved used by my noble and learned friend on my right, the House of Lords, instead of being, as they not to have anything to say to it, and they left in the evidence which he gave before the committee are, the judgments of one noble and learned the decision to the law Lords. Since then, it is of 1855, when, in answer to a question which was lord, assisted by two or three others. In idle to talk of the decisions of the House of Lords put to him as to whether lay lords being present the evidence a case is detailed to which, but for as the decisions of your Lordships as a body at the hearing of appeals, and evidently not its mention there, I should have some delicacy in The decisions have been in reality those of a small attending to what was going on, was not a cause referring. Malins, V.C., then Mr. Malins, tas committee of law lords. They are called the of disturbance and distraction, he replied, “We examined, and gave strong evidence in favour decisions of the House of Lords, and I will now have long since ceased to take any notice at all of of the very measure I am about to propose-the show the great inconvenience of this fiction. It is those lay peers.” But things could not go on in transfer of the appellate jurisdiction from this not a new one, and in consequence of its exis. this way, although matters had begun to mend. House to a bona pde court, and not to a com. tence, a course grew up and provailed for a long The tenure of office of Lord Eldon had been very mittee calling itself the House of Lords. He time of securing the attendance of three Lords, long, but since the changes in the occupants of gave this instance of what occurred in the prethat being the number necessary to make a House. the woolsack have been more frequent, and you sence of Lord Brougham, who had an opportunity During the Chancellorship of Lord Eldon this was have in consequence secured the services of a of replying to him by question and answer. A case done ; and whether the two Lords who sat with number of learned lords, which you could not have was decided under the Acts for winding-up public the Lord Chancellor were law lords or not appears obtained at the period to which I have been refer companies, a case of considerable importance to to have been regarded as a matter of but little ring. Owing to that happy accident, the conduct a large number of persons who had embarked their consequence. Of course, the Lord Chancellor was of business in the hearing of appeals has been fortune in an unprofitable adventure, and were glad to get two other law lords, but there was no somewhat more satisfactory; but it was, never called upon in many cases to sacrifice the last penny personal obligation on the law iords to attend. theless, in 1855, deemed to be highly expedient to they had to make good their engagements. It In the next place, there was great uncertainty as appoint a committee to inquire into the subject, was a case of first-rate importance with a view to to whether there would be a sitting for the hear- with the view of seeing what alterations were ascertain who was liable

or, in technical language, ing of appeals, the Lord Chancellor being required required for the purpose

of improving the appellate who and who were not contributories, and to have in the Court of Chancery. In 1811 a Committee jurisdiction of this House. That committee was the law clearly laid down as to what constituted was appointed to inquire into the mode of exer. very strongly constituted. Among the lay lords a contributory to govern, as it would govern, a cising the appellate jurisdiction of your Lordships' on it were the late Lord Derby,

Earl Grey, and the vast number of cases hereafter. It so happened House, and as to whether any improvement in the Lord Privy Seal of the day. I cannot go through the that a Master in Chancery, a near relative of Lord