14. Constables, &c. may seize cattle travel-form a district, for purposes of this act, for ling on the Lord's Day. three years. Any one parish may give notice

15. Penalty for constables, &c. refusing to of intention to cease to form one of the disact in certain cases.

16. District surveyor to have power, &c, of surveyor, &c., except in levying rate. Money not to be expended out of parish, except, &c. Salary of district surveyor, how to be paid.

19. Recovery and application of forfeitures.
20. For compelling the attendance of wit-veyor, successor to be appointed.

17. In case of death, &c. of district sur

23. In actions against persons who have 20. As to repair of highways at ends of made information in cases where the convic-bridges hereafter to be built. Not to extend tion has been quashed, no greater damages to raised causeways, &c.

than two pence shall be recovered by the plain- 21. Parishes, when liable to repair new hightiff, unless he allege malice and want of pro-ways.

24. Limitation of Actions. Venue local. erected. General issue may be pleaded.

25. Ecclesiastical jurisdiction not altered. 26. Exemptions from this act.

27. Act not to extend to works of piety, charity, or necessity.

New Bills in Parliament.

77. Justices may order narrow highways to 55. How costs of proceedings shall be de-be widened. Surveyor to agree with owners of frayed, &c.

442 New Bills in Parliament.—Selections from Correspondence, No. XLIX.

assessed, ground to be deemed a public highway. Where there is not money sufficient, a further rate may be made, by order of the Justices at their Quarter Sessions, not exceeding one third of rate.

78. Costs of proceedings, by whom payable. 79. Previous to highway being stopped up, &c., surveyor to request Justices to view same. 80. Proceedings for diverting, &c. certain highways, and to stop up unnecessary highway. Surveyor to affix notice on side of highway, and insert name in newspaper; and after notice, on door of church. On proof of publication of notices and plan being delivered to Justices, they shall grant certificate of having viewed highway, &c. Contents of certificate. Certificate and plan, &c., to be deposited with Clerk of Peace, and read in open Court. Liberty to inspect certificate, &c.

SI. Persons who may think themselves aggrieved if such highway should be ordered to be stopped up, &c., may appeal.

82. In case of appeal, jury at sessions to determine whether new highway is nearer, &c. 83. Costs to be awarded in appeal against stopping up, &c. highway.

84. If no appeal be made, or if dismissed, Sessions to make order for diverting, &c., and the old ways may be stopped, and proceedings shall be conclusive, and new highway shall afterwards continue a public highway, &c.

85. When new highway shall be completed, old highway to be stopped up, and the land sold. Mines and minerals reserved to the

owners.

86. In what cases, and in what manner, and upon what terms, the old highways, or the land lying between the fences inclosing the same, shall be disposed of.

87. Provisions as to widening, &c. highways, to extend to highways which persons are bound to repair ratione tenure, &c. Justices to fix annual or other amount payable by party previously bound to repair.

88. Mode of proceeding before Justices, if highway out of repair. In what cases Justices cannot interfere.

100. Plaintiff not to recover for irregularity, if tender of amends be made.

101. Appeal may be made to Quarter Sessions against rate, &c.

102. Provisions of 41 G. 3. c. 23, applicable to this act.

103. Rates and proceedings not to be quashed for want of form.

104. In case of appeal, Sessions may grant a special case.

105. Limitation of actions. Defendant may plead the general issue.

106. Amount of fees.

107. Expenses for defending prosecutions agreed upon at a vestry meeting, how to be paid.

108. Limiting powers of act.

109. Not to affect the Universities. 110. Not to affect the county of Montgomery Act.

111. Powers of Commissioners of Sewers not abridged.

112. Concerning the forms of proceedings.

SELECTIONS

FROM CORRESPONDENCE.

No. XLIX.

SPECIAL USES TO BAR DOWER.

To the Editor of the Legal Observer.
Sir,

It seems to be to no very useful purpose to debate the question, whether what are called special uses, be now necessary, with a view to their utility in other respects would probably questions of dower or not-considering that render it, under any circumstances, desirable to continue them.

When we consider the expense and labour arising out of searches and precautions against judgments and other incumbrances, the relief which is so often afforded by the consideration of a purchaser being in under the original 89. Mode of proceeding if obligation to re-creation of the power, by taking as appointee, pair is disputed. is one which no one would lightly give up. A PRACTITIONER.

90. Fines, penalties, and forfeitures, how to be levied and applied.

91. Justices empowered to award costs to defendant, where information, &c. is withdrawn or dismissed.

92. Court may award costs to the prosecutor on indictment.

93. If highway out of repair, no other mode of proceeding than that directed by this act. 94. Surveyor may be a competent witness. 95. Justices may proceed by summons on the recovery of penalties.

96. Power of compelling witnesses to attend. 97. Forfeitures, costs, and charges may be levied by distress and sale. In what manner to be applied.

98. Forfeiture amounting to 40s., may be recovered by action.

99. Satisfaction recoverable for special damage, but distress not unlawful for want of form in the proceedings.

DOUBTS ON THE DOWER ACT, CONTINUED.
Sir,

I trust you will allow me to acknowledge my obligations to both your correspondents, J. ̊C. and P- -e, for their observations on the Fine and Recovery Act and the Dower Act. They have both treated their subject with great ability. If one feels more convinced by what Pe has said, it is not that P--e has written better than J. C.; but because his opinions have, as I think, truth for their foundation. They seem to me, moreover, to have a better title to the character of originality. In reading the communications of J. C., I never could get rid of the impression, that he went to the consideration of the subject with a mind somewhat warped by "the learned lecturer's

- Selections from Correspondence, No. XLIX.

opinion," and "the better opinion of West-
minster Hall." a Pardon me, Sir, for telling
you, that I much regret the impatience mani-
fested by you to put an end to the discussion.
At the feast which you furnish weekly, there
are dishes suited to all tastes. For my part,
there is none more adapted to mine, than what
is obtained from such men as your aforesaid
correspondents. You cannot, in my opinion,
"curtail" 'the productions of their
pen, with-
out curtailing the usefulness of your miscel-
lany. Their text is of very general import-
ance their commentary able and useful.

DOWER ACT.-LIMITATION CLAUSES.

Sir,

66

443

The question of your correspondent W. B., (P. 390) whether on the purchase of dowable 1st of January, 1834, the simple form in the property by a person married previously to the Dower Act (sec. 6) will suffice," is answered in the quotation he has made from Mr. Hayes' book-"The operation of the act is so far limited by the concluding section, as to leave married on or before the 1st of January, 1834." wholly unaffected the dower of every widow

"You may be sure," (says your correspondent) "I did not hesitate to follow the sufer course pointed out by Mr. Hayes;" but there Was no less safe course pointed out at all; for when Mr. Stalman says, referring to the 6th section of the Dower Act, "This declaration will render a limitation to uses to bar dower unnecessary on the purchase of dowable property," he could only mean, where the purchaser had been married after the 1st of Janu

I take courage, notwithstanding, to offer a word or two; which word or two, that I may not draw too deeply on your patience, I shall for brevity sake put in the interrogatory form. 1. Did J. C. notice these words at the beginning of the 1st section of the Fine and Recovery Act:-" in the construction of this act; and are not these words, in connexion with the proviso at the end, to be read thus :in the construction of this act, expressions that have more than one meaning shall notary, 1834, not where he had been married before that time. Now by W. B.'s statement, it cerned had been married before that time. appears the purchaser for whom he was con

have the different meanings given to them, where there is any thing in the subject or context repugnant?

The answer to the question whether or not 2. If J. C. should say that the Fine and Recovery Act and the Dower Act are in pari ma-limitations," when the marriage has taken "it is important to continue the customary teria, and therefore to be construed as one, does he mean that they are to be so construed as regards the subject-matter of every clause, especially the 1st of each act?

3. If the par materia be confined to the dower of women married after the 1st of January, 1834, as it seems to me it is, is not the question narrowed to one of no practical importance? Is not the repugnancy be speaks of,b applicable to the mode only of destroying the right of dower? Taken separately, the Fine and Recovery Act, if there were no Dower Act, would, if the former relate to dower at all, by J. C.'s own admissions, be sufficient to accomplish the thing designed, namely, the prevention of any future claim of dower; and this being so, how does he make it appear that the Dower Act, which declares that the same thing may be done by one person instead of two, is, as to the thing to be accomplished, repugnant to the Fine and Recovery Act? It was an useless piece of legislation to enact that the wife of man married after the 1st of January, 1834, should not, without her consent, be barred of her dower, and almost in the same breath to give the husband alone the power of barring her; but does not that repugnance which is to effect the destruction of a preceding enactment, include in it the idea of opposition, to such a degree as that the subsequent enactment cannot exist with the preceding one, nor vice versá?

a

place before the 1st of January, 1834, must be
in the affirmative; but the extent to which it is
important, depends upon the answer to another
question, viz., whether dower is within the
Fine and Recovery Act? If it be within,
that act a woman married before the 1st of
(some say it is, others it is not) then under
January, 1834. may, under the powers con-
ferred by the 77th section, " dispose of, re-
lease, surrender, or extinguish" her estate or
interest as effectually as she could if she were
a feme sole; but it will be useful to insert the
usual limitation notwithstanding, because no
widow will then have any claim at all to any
portion of her deceased husband's land, and
consequently she will have no interest to be at
husband's dominion will be from first to last
the trouble and expense to dispose of: the
exclusive and absolute. If it be not within
the Fine and Recovery Act, it is of paramount
importance that the limitation in question
should be inserted; for if claim to dower once
attach, the land cannot by any act whatever be

exonerated therefrom, because it is declared
by the Fine and Recovery Act, sec. 2, that no
the 31st day of December, 1833.
fine shall be levied or recovery suffered after
Yet it seems
Mr. Wilde has said the legislature did not
dower. See 7 L. O. p. 70.
mean the Fine and Recovery Act to extend to

F. W.

a 7 L. 0. p. 202. b 7 L. O. p. 45.

c P. 102.

EFFECT OF REDUCTION OF COSTS.

To the Editor of the Legal Observer.

Sir,

I have perused with some little attention those portions of your two last Numbers which relate to the New Scale of Common Law Costs;

*

444

Selections from Correspondence.-Superior Courts: Rolls.

him out, provided the peace was not broken in regaining possession. By your correspondent's statement, it appears that it was not a demise of the house separate from the service, but so long as the tenant continued in the service of the landlord. If, therefore, that service were determined by a proper notice from either party, the tenant is bound to give up the possession of the cottage. The case is analogous to that of a coachman occupying a chamber over the stables. If his master determine the service, he cannot consider himself as the tenant of the chamber; but his master might enter and put him out. In both cases the possession of the servant is the possession of the master, and therefore an ejectment is unnecessary.

in the former of which you have given an ex-upon the premises of the tenunt, and turning tract thereof, and in your last Number notes thereon. It cannot but be obvious to every discerning mind, that while the object of the Judges of the land appears to be to concede cheap law to the suitor, that it is to be principally effected at the expense of the attorneys; and nothing can be required to illustrate the fact more than this present scale of costs. Instead of the long-established charge for issuing writs, instructions for declaration, &c., they are to be reduced, the former 2s., and the other items one-half; while the fees to be paid on issuing the writ, signing judgment, &c., are to remain as usual. This I conceive to be monstrous in principle, unjust in effect, and requiring amendment; for while I advocate cheap law, I must maintain, that reason and justice should be dealt out in effecting that desirable object, by making every department connected with the proceedings bear a fair proportion of the diminution. Upon what principle can it be argued that the attorney alone should be the sufferer, in this decrease in the amount of costs, and that the fees payable in respect thereof should remain unaltered?

I should hope that the next Scale of Costs which may be issued (for, no doubt, there will be soon some further alterations made in these march-of-intellect times), that the fees alluded to will be diminished in proportion, by which means law may be obtained at a still cheaper rate than the present scale holds out to the suitor, and with a great deal more reason and justice in effecting so desirable an end.

I would ask the learned framers of this Scale of Costs, what will be the effect thereof on a large proportion of our fellow-men—the lawyers' clerks? Hundreds of that class (respectable men, too, in the common acceptation of the word) are at this moment out of employment, and unable to earn their bread by following any ordinary or mechanical business ; while those who are in employment, are in most instances not paid more than the wages of the labourer, whose work, though more heavy, is yet not more laborious. If, then, numbers of this class are at this moment in a state of destitution, what will be the effect of this system of cutting up the attorneys' costs, but that hundreds more will be thrown out of employment, and those who are fortunate enough to be retained by their principals, will have to suffer by a still further curtailment of their weekly pittance, and the work which others have done will be thrown upon them! This state of things, to a person acquainted with the profession, may be expected soon to come to pass. Newman Street. W. G.

LABOURERS' COTTAGES.-EJECTMENT.

To the Editor of the Legal Observer.
Sir,

In answer to the inquiry of your correspondent H. C. W., contained in the Legal Observer of the 8th instant, as to how a landlord should act under circumstances therein stated, I beg to say that he would be justified in entering

I coincide in the suggestion of your corre spondent, in giving magistrates the power of adjudicating in matters to which he refers. It would be the means of preventing a great deal of vexation and expense to the landlord; and if I am not mistaken, notice has been given of bringing the subject before Parliament. Sheffield, March 18, 1834. J. C.

SUPERIOR COURTS.

PRACTICE.
BEQUESTS.

Rolls Court.

BENEFICIAL AND BURDENSOME
SUBSTITUTION.-HEIR AT LAW.

In a bill to establish a will, a party of whose
adverse claim the plaintiff has notice, is
properly made a defendant; and if he puts
his adverse claim in issue, and fails to
establish it, he is not entitled to his costs,
but he may proceed at law to make good his
claim.

A legatee of two bequests, one burdensome,
the other beneficiul, is not permitted to re-
ject the former and take the latter.
A will charges the real estate with an an-
nuity, and directs the residue of the per-
sonalty to be vested in real estate, and to the
same uses. A codicil thereto directs that
the annuitant may enjoy the residue of the
personalty for life, and that the purchase
of real estate be postponed to her death:-
Held, that the provision by the codicil is a
substitution for that in the will.

An heir at law declining an issue devisavit vel non, will be restrained from afterwards disputing the will.

The facts relating to these several points are sufficiently stated in the following judg

ment:

The Master of the Rolls.—In this cause, a question was made, whether a person who claims adversely to a will was properly made a party defendant to a bill filed by the trustees for the purpose of establishing the will. Where no adverse claim is made prior to the filing of the bill, and the trustees have no such know