descent. But the language of the writ may be varied according to the exigency of the case. Now what is the exigency of this case?-that the persons entitled to the property should not be defeated by a supposititious child. Desinherison or exhæredatio is not confined strictly to an heir. When there is eadem ratio there ought to be eadem lex. The question is, whether there be in this case circumstances sufficient to warrant me in granting the order? The situation and conduct of the wife may well alarm the parties interested. She was brought to bed in less than three weeks after the marriage, and doubts arising when soon after upon her husband's death she declared herself pregnant, she did not take proper measures to remove these doubts-which she should have done, if it were only for the sake of the child. I therefore clearly think that the writ should issue."1

In Halfhide v. Fenning, Sir Lloyd Kenyon pronounced a judgment which has often been overruled, but which I humbly apprehend rests on just principles. To a Bill for an account between partners, the defendant pleaded that by the articles of partnership it was stipulated that any disputes arising between them respecting matters of account should be referred to arbitration.

Master of the Rolls.-"There can be no doubt but that parties entering into an agreement that all disputes shall be referred to arbitration, are bound by such agreement. The Legislature has countenanced arbitrations by enacting facilities to enforce the performance of awards. Where a cause is referred by rule of the Court of King's Bench, with a clause that no Bill in Equity shall be filed, that Court, considering this clause legal, grants an attachment for the violation of it. Such references are very advantageous to the parties, as arbitrators are more competent to the settling of complicated accounts than the officers of Courts of law or equity. I ought to be convinced that arbitrators cannot or will not proceed before I entertain jurisdiction of the matter. I am satisfied that in the first instance recourse ought to be to those judges pointed out by the articles. If they cannot determine the controversy, they will remit it to this Court."2

'Ex parte Bellet, 1 Cox, 297.

2 2 Brown, 336. The maxim that Courts of Law and Equity are not to be ousted of their jurisdiction by the agreement of the parties arose at a time when the profits of judges depended almost entirely upon the number of suits tried before them. This mode of remuneration accounts for the decisions whereby the statutes made to discourage frivolous actions by depriving the plaintiffs of costs were long rendered abortive.-December, 1849.

I am glad to think that by judgments of the Court of Queen's Bench, and of the House of Lords, in which I took a part, the right of parties to provide for the settlement of their disputes by arbitration is now fully established.—January, 1857.

Although we shall in vain look in his judgments at the Rolls for such masterly expositions of the principles of equity as delight us in those of his successor, Sir William Grant, and there were several of his decrees reversed, he dispatched a great deal of business in a very creditable manner. Lord Eldon afterwards said to his son, "I am mistaken if, after I am gone, the Chancery Records do not prove that if I decided more than any of my predecessors in the same period of time, Sir Lloyd Kenyon beat us all." This compliment to Sir Lloyd Kenyon is well deserved, although the condition on which it is awarded cannot be affirmed, as Lord Eldon himself, in finally disposing of causes, was one of the slowest as well as one of the surest Judges who ever sat upon the bench.

The distinguished Welshman was now to exhibit his judicial powers on a wider stage. Lord Mansfield having presided thirty years as Chief Justice of the Court of King's Bench, was disabled by age and infirmity from longer doing the duties of his office, and he anxiously desired that Mr. Justice Buller should be appointed his successor. He intimated his willingness to resign if this arrangement should be acquiesced in. But it is said that the Prime Minister, when at the bar and going the Western Circuit, although Buller, the Judge of Assize, was very civil to him, had been much scandalized by observing his Lordship's demeanor in trying a great Quo Warranto case, which involved the right to return members of Parliament for a Cornish borough, contested by his family; and it is certainly known that Mr. Pitt not only had a good opinion of Sir Lloyd Kenyon's moral qualities, but felt deep gratitude for the sacrifices that his Honor had made in qualifying himself to vote for Sir Cecil Wray by sleeping in his own stables, and in zealously defending the "Scrutiny." Lord Mansfield was therefore told that the Master of the Rolls would be recommended to the King as Chief Justice. The notion was particularly disagreeable to the aged Peer. He not only sincerely believed that his favorite was much better qualified, but he had been told that the rival candidate had sneered at some recent decisions of the King's Bench which tended to bring about a fusion of law and equity, and that he was accustomed, like the Sergeants celebrated by Pope, to

"Shake his head at Murray as a wit." For two years, while shut up in his villa at Caen Wood, Lord Mansfield retained his office of Chief Justice, in the hopes that Buller's growing popularity, while de facto presiding as the first common law Judge in Westminster Hall, might bear down all

opposition, or that there might be a change of ministry-when his superior merit might be acknowledged and rewarded.

At last, hints were thrown out that this retention of the office was an abuse of the statute which made judges irremovable, and that the power of removing, reserved to the Crown on an address of. the two Houses of Parliament, might be put in force for incapacity as well as for criminality.

Accordingly, on the 4th day of June, 1788, Lord Mansfield signed his resignation, and on the 9th of the same month, being the last day of Trinity Term, 1788, Sir Lloyd Kenyon was sworn in as his successor. On the same day the new Chief [Nov. 7.] Justice, by letters patent under the Great Seal, was created Baron Kenyon of Gredington, in the county of Flint. He sat at nisi prius immediately after, but he was not formally installed till the first day of the following Michaelmas Term.

CHAPTER XLIV.

LORD KENYON AS CHIEF JUSTICE OF THE KING'S BENCH.

ALTHOUGH Lord Kenyon afterwards acquired the full respect both of the legal profession and of the public, his promotion was in the first instance much disrelished. The gibes of the Rolliad circulated in society; he had offended several barristers by his hasty and uncourteous manner, and there was an illiberal apprehension that, because he had practised while at the bar in a court of equity, he must be unfit to preside in a court of law. Buller, on the contrary, was not only "the Prince of Special Pleaders," and really had done the business of the King's Bench exceedingly well for two years, but he had been in the frequent habit of inviting all grades of the profession to the genial board, where they found flowing cups as well as flowing courtesy.

As I am henceforth to speak of the new Chief Justice almost exclusively in his judicial capacity, it may be convenient that I should at once proceed to the notice which I am called upon to take of him as a politician. He was introduced into the House of Peers in his robes between Lord Sydney and Lord Walsingham on the 26th of June, 1788. Of course he was a steady

1 "June 26, 1788.

"Sir Lloyd Kenyon, Baronet, being, by Letters Patent bearing date the 9th June, 1788, in the twenty-seventh year of his present Majesty, created Baron Kenyon of Gredington, in the county of Flint, was (in his robes) introduced between the Lord Sidney and the Lord Walsingham (also in their robes), the Gentleman Usher of the Black Rod and Garter King at Arms preceding. His Lordship on his knee presented his Patent to the Lord Chancellor at the Woolsack, who delivered it to the Clerk; and the same was read at the table. His Writ of Summons was also read as follows (videlicet):

"George the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth: To Our right trusty and wellbeloved Counsellor Lloyd Kenyon, of Gredington, in our County of Flint, Chevalier, greeting: Whereas Our Parliament for arduous and urgent Affairs concerning Us, the State and Defence of Our Kingdom of Great Britain, and the Church, is now met at Our City of Westminster; We, strictly enjoining, command you under the Faith and Allegiance by which you are bound to Us, that considering the Difficulty of the said Affairs and Dangers impending, all Excuses

* Sic.

supporter of the Government, although he very properly abstained from again making himself prominent as a political partisan.

In a debate which soon after arose upon the insanity of George III., Lord Porchester, to enforce the necessity of [JAN. 23, 1789.] immediately restoring the exercise of the royal authority by addressing the Prince of Wales to act as Regent, stated

"That on Monday last two men had been butchered by a public execution, because the door of mercy was barred against them, and that these unfortunate convicts had been deprived of all opportunity of applying either for a pardon or for a temporary reprieve, although it had been laid down by Judge Blackstone that if a convict, after receiving sentence of death, loses his senses, execution is stayed, because, if he had retained his senses, he might have urged some plea to induce the Crown to remit or to mitigate his punishment."

Lord Kenyon: "It would ill become me to listen with silent indifference to a charge of so serious a nature, and urged with such vehemence against a judge. The judge who tried these criminals is now the party accused. If on the trial of a person convicted of a capital crime, circumstances come out which warrant the judge in supposing that the verdict is wrong, it is his duty to respite the convict. If anything favorable appeared on the trial of the two persons executed on Monday, the judge who tried them ought to have respited them; and if he neglected his duty, they have not been butchered but murdered by him, which is a much higher offence. The judge guilty of such an act of criminal neglect, instead of being allowed to go in state to Westminster Hall next morning, ought to have been seized in his fur robes, dragged from the seat of justice, and hurried to that dungeon in which the two unfortunate men had lingered the last hours of their existence. I therefore call upon the noble lord to

being laid aside, you be personally present at Our aforesaid Parliament with Us, and with the Prelates, Nobles, and Peers of Our said Kingdom, to treat of the aforesaid Affairs, and to give your Advice, and this you may in nowise omit as you tender Us and Our Honour, and the Safety and Defence of the said Kingdom and Church, and the Despatch of the said Affairs.

"Witness Ourself at Westminster, the Ninth Day of June, in the Twentyeighth Year of Our Reign. "YORKE.'

“Then his Lordship took the Oaths, and made and subscribed the Declaration; and also took and subscribed the Oath of Abjuration, pursuant to the Statutes, and was afterwards placed on the Lower end of the Baron's Bench.

"Garter King at Arms delivered in at the Table his Lordship's pedigree, pursuant to the standing Order."-38 Journal, 249.