« EelmineJätka »
side, whioh, so far as living memory extended, until 1871 when they were removed, were in the exclusive possession and occupation of the plaintiff and his predecessors. In 1871 a relative of the plaintiff-the plaintiff being thon a minor--removed the woodwork of the pews to Sharnbrook-house, and kept them there, and in the site of the old pews chairs were placed on each side of the chancel, and it seemed that these chairs covered the whole length of the old pews, but not the entire breadth. The whole of the ground covered by these chairs was within the sites of the old pews, and they were placed there in substitution of those pews. In 1877 the plaintiff came of age, and continued to attend the church, and occupied these chairs in the chancel. In 1885 temporary wooden platforms were placed in the chancel for the choir, occupying wholly or in part the sites of the old pews.
The plaintiff strongly protested against what he considered as an infringement of his legal rights, but the matter remained in abeyance until 1893, when it was proposed by the vicar to substitute permanent stalls for the temporary platforms. The plaintiff insisted upon his right to the pews or sites in question, and he based his claim to the pews upon his right as lay rector to the chief seat in the chancel, but he did not at first claim them as annexed by prescription to Sharnbrook-house. The plaintiff removed the platform on the south side and erected thereon a permanent oaken seat, and ultimately the application was made to the Chancellor which it was now sought to prohibit. Exclusive occupation of both the old pews by residents at Sharnbrook-house, so far as living memory extended, was proved, but the plaintiff failed to prove any actual repair of the woodwork or struc. ture of the pews, but he did prove that in 1850 the pows were re-lined with baize by nails driven into the wood. The plaintiff now principally relied upon his right to the pews by prescription in respect of his occupancy of Sbarnbrook-house. For the defendants it was contended that to establish a right to the pews as against the Ordinary, proof not only of occupation but of reparation at the plaintiff's expense would be neces. sary, and the plaintiff relied on the re-lining of the pews in 1850 as an act of repair by him, and the plaintiff also relied upon the removal of the pews to Sharnbrook-house in 1871. Cur. adv. vult. Held, that to prove the right to the pews as against the Ordinary it was necessary to prove not only occupation, but repair, if necessary ; that the re-lining of the pows, even accompanied by the driving the nails into the wood-work, was not a sufficient act of repair, but that the removal of the pews was a sufficient act of ownership to establish the plaintiff's right; and also (without deoiding the point) that, as lay rector, the plaintiff was entitled to the chief seat in the chancel.
Re An Application for a Writ of Prohibition in certain proceedings in the Consistory Court of Ely. Q. B. Div. : Charles, J. Dec. 22.Counsel : Dibdin; A. B. Kempe. Solicitors : Taylor, Stileman, and Underwood ; Lee, Bolton, and Lee.]
the ground; and when he was lifted up again it was found that he had lost his eye.
The friend, who had been standing with Mr. Scott, rushed to Bill Ryal : for Bill was pointed out to him as the man who had thrown the squib. Bill Ryal said: "I could not help myself. Jack Willis threw the squib at me. It is he, and he only, that is to blame.”
The friend went to Jack Willis, and he made a similar reply : “ It was not my fault,” he said. “The squib fell on Tom Yates's stall, when I was treating my youngsters to gingerbread. I wasn't going to have them hurt, nor did I see why poor Tom's wares should be injured."
It was like a game of hunt the slipper.
Mr. Scott's friend replied: “It would have been better to have spoiled a ton of gingerbread than that my friend should lose his eye. Who threw the squib?"
“It was Harry Shepherd who threw it,” said one of the crowd.
Mr. Scott's friend found the jovial Harry and said to him : “You must pay Mr. Scott compensation for the terrible injury which you have done him."
Shepherd said : “Not a bit of it. I threw the squib, I admit; but not at Mr. Scott. I won't pay a penny. I'm not responsible for other people throwing my squibs about.”
Mr. Scott's lawyer wrote to Shepherd afterwards. It must have been only in the excitement of the evening, he said, that he had refused to compensate Mr. Scott for the terrible wrong he had done him ; what compensation would he now offer ?
But Shepherd still refused to pay any compensation whatsoever. He was not responsible, he repeated, in the least degree for what had happened.
At Bridgwater Summer Assizes, however, a jury awarded Mr. Scott £100 damages, which meant more in those days than it means now, for the injury which he had suffered.
Even now Shepherd obstinately refused to pay, and appealed from the decision of Mr. Justice Nares, who held at the assizes that he was liable.
The appeal was unsuccessful, and Mr. Scott received his £100. Everybody in the place wished that it was more, the general public entirely agreeing with the court that Willis and Ryan were blameless and that Shepherd was entirely in fault.
Legal Proposition.—When the natural and probable consequence of the act done by a defendant is injury to someone else, the act is illegal at common law. The act being unlawful, the defendant is liable to answer for the consequences, be the injury mediate or immediate ; for Qui facit per alium facit per se. See Smith's Leading Cases,” 10th edit., at pp. 438 and following, where this case is reported with notes; and cf. Clark v. Chambers (38 L. T. Rep. 454 ; 3 Q. B. Div. 327).
OUR LITERARY COLUMN.
STORIES FROM THE LAW REPORTS.
(From Scott v. Shepherd, 2 W. Bl. 892.) It was the evening of the fair-day at Milborne Port, the 28th Oct. 1770. The whole population seemed in a state of wild excitement. Noisy singing was to be heard in the street, drink was running: and every sort of merriment was going forward.
Fireworks seemed suitable to the occasion, and a half-tipsy buffoon whose name was Harry Shepherd, was expressing his feelings by means of blazing squibs. He did not much notice where his squibs went, but he stood in the street and ignited them, afterwards throwing them about him with reckless joviality.
Close opposite to the place where he was standing the market-house of Milborne Port was to be seen. It was a covered building supported by arches, and inclosed at one end, but open at the other, and at both the sides. A large concourse of people were gathered together there ; and a larger quantity of money was being spent than often happened at Milborne Port. Those who had made gains during the day were buying biscuits and apples to take home with them to the children, and the boys who had received coppers for doing odd jobbs at the fair were spending them on sweets and cocoanuts and ginger-beer.
Tom Yates's gingerbread stall was a favourite one with the youngsters. Jack Willis was a great friend of Tom, and had brought his youngsters to treat them at Tom's stall. While they were swallowing the muchappreciated delicacy, and Jack was just about to pay the price, one of the jovial Shepherd's squibs, just well ablaze, lighted upon Tom Yates's stall and seemed likely to do great damage to some of the poor man's
Jack Willis instantly took it up and hurled it from him to prevent its spoiling his friend's goods or harming himself and his children. Where it went when it left his hands Jack Willis cared not ; he acted partly from the motives which we have mentioned, and partly from the mere instinct of self-preservation.
It fell upon another standing of Bill Ryal, the seller of the rival gingerbread. He instantly, and to save his own goods from being injured, took up the lighted squib from off the standing, and then threw it to another part of the market-house.
The blazing squib struck Mr. Scott, the greengrocer, who was standing with a friend discussing the points of a horse which he had bought that day, and looking in the opposite direction. The squib was most unfortunately now burning to its bottom end, and before Mr. Scott could ward it off it burst. With a shriek of agony the unhappy greengrocer fell upon
Misrepresentation has ever been the tribute paid by the ignorance and prejudice of mankind to real merit: as Swift says: “ Censure's to be understood
Th' authentic mark of the elect,
Our shallow search and judgment to direct." Upon none of the institutions of civilised society has the storm of calumny beaten more fiercely than upon the great trio of professions, Religion, Medicine, and Law. The reason is not far to seek. These professions are standing reminders to the world that, boast as men may, and disguise the facts as they please, society is by no means ideal, and man is far from perfect in spirit, soul, or body. Is not this what Robert Greene, the Elizabethan dramatist, meant when he wrote in 1592: “The divine is to preach the Gospel; the lawyer to reform wrongs and maintain justice ; the physician to discover the secrets of God's wonders, by working strange cures.” With this view agrees an old writer, cited in the “ Harleian Miscellany,” under date 1649 ; but whilst this writer grounds Religion and Medicine on “the weakness " of mankind, he assigns "the corruption" of humanity as the occasion for the Legal Profession.
It is, of course, true that in an ideal world there would be small or no need for lawyers. Sir Thomas More utterly excludes and banishes "all attorneis, proctours, and sergeauntes at the lawe” from his “ Utopia,” it being “moste meete that every man should pleade his own matter, and tel the same tale before the judge that he wold tell to his man of law." I must also admit, to cite again from the Harleian Miscellany, that “ Lawyers though necessary callings are no increasers of a nation's wealth”-i.e., I presume, in the sense in which manufacturers of cycles, small-arms, torpedoes, or whisky are “ increasers ;” but the world has amply revenged itself for this fault--if it be such ; and many a gentleman or lady, who would never dream of taking a suit of clothes or a ball dress without paying for it, will without the smallest compunction rob his or her solicitor of £5 worth of his time and an inestimable amount of his patience, resenting, as a monstrous piece of extortion, any suggestion as to remuneration on the plea, " Why-it was only advice!" And then they speak of us in terms of abuse! e.g.:
"That snip of an attorney.”—Massinger ("A New Way to Pay Old Debts ').
“They are angry hornets not to be jested with."- Massinger (" The Guardian").
“A lawyer's mercenary tongue.”—Massinger ("Parliament of Love ”). “Some picklock o' the law.”—Jonson ("Bartholomew Fair '). "He's a lawyer, and may lie.”—Tatham (“The Rump').
A set of men so greedy of gain, that Greene says, they are troubled with the heat of the liver, which makes the palms of their hands so hot, that they cannot be cooled unless they be rubbed with the oil of angels.”
Nay, these writers even deny to the Profession the possession of good looks, apparently thinking that the nefarious nature of our business stamps its outward mark upon us; says Webster (" The Malcontent"):
“Mercury shall be your lawyer, lady."
“Nay, faith, Mercury has too good a face to be a right lawyer.” Or as Ben Jonson puts it: “ The antiface to this” (a soldier's face)" is your lawyer's face, a contracted, subtile, and intricate face, full of quirks and turnings, a labyrinthæan face, now angularly, now circularly, every way aspected:” (“Cynthia's Revels ").
We are, too, charged with such an intimate acquaintance with the devil that we are naturally selected as his representatives on emergency ; say Beaumont and Fletcher :
“There was a devil, hir'd from some magician,
I'th' shape of an attorney.” Congreve considers we can give even the infernal powers some points, for he says : “ This is a trick to defer signing the conveyance. I warrant the devil will tell him in a dream that he must not part with his estate. But I'll bring him a parson to tell him that the devil's a liar ; or, if that won't do, I'll bring a lawyer that shall out-lie the devil; and so I'll try whether my blackguard or his shall get the better of the day : ” (“ Love for Love').
Grave doubts are expressed by many as to whether a lawyer has a conscience. Jonson thinks it very doubtful, since
(" The Staple of News”). In any case conscience is in a parlous condition, for Congreve attacks the lawyer thus: “ Lawyer, I believe there's many a cranny and leak unstopped in your conscience. If so be that one had a pump to your bosom, I believe we should discover a foul bold. They say a witch will sail in a sieve ; bnt I believe the devil would not venture aboard your conscience. And that's for you:” (Ibid).
In the same play a character remarks: “Why does that lawyer wear black ? Does he carry his conscience without-side P"
An old play-date 1608–by John Day, entitled “Humour out of breath,” contains an amusing dialogue, describing a “strange wedding
of a young lawyer and old Madame Conscience ;” it is too long to quote, but in answer to the question, “ Did they live together p” the reply is : “ In the country they did, and agreed passing well all the long vacation."
Greene sums up his diatribe against the Profession by remarking that "it booteth not men to discourse their little conscience and great extortion ; only suffice (it that) " they be not so rich as they be bad, and yet they bee but too wealthy."
Before leaving this part of my subject, I must quote a letter of the Commonwealth period from a Quaker, which is cited in the Harleian Miscellany, and vouched for as genuine. It runs :
“Friend John,-I desire thee to be so kind as to go to one of those sinful men in the flesh, called an attorney, and let him take out an instrument with a seal fixed thereunto, by means whereof we may seize the outward tabernacle of George Greene, and bring him before the lambskin men at Westminster, and teach him to do as he would be done by, and so I rest thy friend in the Light.-R. G.”.
In fine, the lawyer is treated as being an inevitable evil, to be avoided if possible ; if not, to be endured: as Harvey (1597) puts it to Nash in a quarrel : “ In sadness provide your lawyer ; I have mine,” and Webster sighs out as for something quite impossible of attainment :
“O give me such a lawyer as will think
("The Devil's Law-case '). It will only be possible to deal in this paper with a few of the charges brought against the Profession. I shall not take pains to distinguish those brought against the Bar -- and those more particularly laid to the account of Solicitors, inasmuch as many solicitors are extremely able advocates, and also because the Profession stands or falls as a whole. There are individuals who appear to derive gratification and think they gain increased respect, by speaking of the “higher” and “ lower” branches of the Profession, as if in the great legal House there were, so to speak, vessels to honour" (the Bar) and “vessels to dishonour” (the Solicitors). Even on the Bench there have been found persons who spoke of solicitors as "attorneys,” using that word with the delicate intonation implying secret contempt. Such men, however, never thus gain respect, as Jonson says :
“ It is a note
Massinger makes an advocate answer a new judge, who exclaims
“ Sirrah! you that prate
Thus saucily, what are you ? in these words :
“ Why, I'll tell thee,
(“The Fatal Dowry ”). and Webster, in a similar case,
(“ Appius and Claudius.”) The first charge I shall deal with is, to put it briefly, that lawyers provoke strife. This appears in many forms :Sir Walter Raleigh writes :
“Tell Law, it is contention.
Then give them still the lye.”
“If I can now commit father and son,
A Picklock's name in law :" ("The Staple of News ”).
« The law to him
To entangle those shall feed him."
“The multiplicity of attorneys dispersed over all this kingdom may well be compared to such as stand with quail pipes ever calling the poor silly bird into the net." Greene attacks a lawyer thus (" James the Fourth "):
" Are you not those that should maintain the peace,
He is not heard." I am bound to add that the lawyer, in his reply, rather gives himself away, for his main argument is thus put :
“ Did we not taste the bitterness of war,
Because the parts thereof did still accord.”
“Strife and wrangling have made him rich, and he is thankfule to his benefactor and nourishes it. If he lives in a country village, he makes all his neighbours good subjects ; for there shall be nothing done but what there is law for. His businesse gives him not leave to thinke of his conscience, and when the term of his life is going out, for Doomesday he is secure ; for he hopes he has a tricke to reverse judgement."
And Congreve, who is peculiarly bitter, makes a character say :
“Is the lawyer gone? 'Tis well! then may we drink about without going together by the ears : (“Love for Love").
(To be continued.)
PROMOTIONS AND APPOINTMENTS. Information intended for publication under the above heading should reach us not later
than Thursday morning in each week, as publication is otherwise delayed.
Mr. SEYMOUR WILLIAMS, solicitor, of Bristol, has been appointed Clerk to the Warmley Out Relief Union, the Warmley Rural District Council, the School Attendance Committee, and the Mangotsfield Parochial Committee. Mr. Williams was admitted in 1890, and is senior member of the firm of Lawrence, Williams, and Watts.
Mr. PRETOR W. CHANDLER, of 8, New-court, Lincoln's-inn, has been appointed by the Council of the Law Society an Assistant Examiner. Mr. Chandler was admitted in 1882.
Mr. W. G. CARN, solicitor, of 2, Broad-street-buildings, Kingstonon-Thames, has been appointed a Commissioner for Oaths. Mr. Carn was admitted in Oct. 1890.
Mr. JOHN WILLIAMSON BROWN, jun., of the firm of Forster, Brown, and Forster, Newcastle-upon-Tyne, has been appointed a Commissioner for Oaths. Mr. Brown was admitted in 1890.
Mr. EDWARD H. RIDGE, of 15, Bedford-row, and Clapham, has been appointed a Commissioner for Oaths. Mr. Ridge was admitted in August, 1883.
CRIMINAL LAW AND THE JURIS
DICTION OF MAGISTRATES.
QUARTER SESSIONS. Barnstaple, Tuesday, Jan, 5
Leeds, Thursday, Jan. 7 Bedford, Tuesday, Jan. 5
Leicester, Wednesday, Jan. 6 Bideford, Wednesday, Jan. 6
Lichfield, Wednesday, Jan. 6 Birkenhead, Wednesday, Jan. 6
Northampton, Friday, Jan. 8 Birmingham, Monday, Jan. 11
Nottingham, Thursday, Jan. 7, at 10 Blackburn, Friday, Jan. 8
Newcastle-upon-Tyne, Friday, Jan. 8 Bolton, Thursday, Jan. 14
New Windsor, Tuesday, Jan. 5, at 11 Bradford, Yorks, Friday, Jan. 8
Oswestry, Friday, Jan. 8 Bridgnorth. Wednesday, Jan. 6
Oxford, Monday, Jan. 11, at 11.15 Bridgwater, Saturday, Jan. 9
Plymouth, Thursday, Jan. 7 Bristol, Monday, Jan. 4, at 10.30
Portsmouth, Friday, Jan. 8 Bury St. Edmunds, Friday, Jan, 15 Reading, Thursday, Jan. 7, at 10 Cambridge, Monday, Jan. 4, at 10 Richmond (Yorks), Monday, Jan. 4 Cardiff, Thursday, Jan. 7
Saffron Walden, Monday, Jan. 4 Carlisle, Wednesday, Jan. 6
Salford, Thursday, Feb. 18 Chichester, Tuesday, Jan. 26
Salisbury, Saturday, Jan. 9, at 11.30 Colchester, Friday, Jan. 8, at 10
Scarborough, Friday, Jan. 15, at 10.15 Croydon, Thursday, Jan. 7, at 11
Sheffield, Thursday, Jan. 14 Deal, Monday, Jan. 18
Shrewsbury, Monday, Jan. 4 Derby, Thursday, Jan. 7, at 10.30
Southampton, Thursday, Jan. 7 Devizes, Monday, Jan. 4
Sudbury, Monday, Jan. 11 Devonport, Friday, Jan. 8
Swansea, Friday, Jan. 8 Dover, Monday, Jan. 4
Tiverton, Wednesday, Jan. 6 Exeter, Monday, Jan. 4
Warwick, Friday, Jan. 8 Faversham, Monday, Jan. 4
Wenlock, Friday, Jan. 8 Grimsby, Tuesday, Jan. 12
West Ham, Friday, Feb. 12 Guildford, Tuesday, Jan, 5
Wigan, Tuesday, Jan. 5, at 10.30
Windsor, Wednesday, Jan. 9
Wolverhampton, Friday, Jan. 8, at 10 Ipswich, Thursday, Jan, 7
Worcester, Thursday, Jan. 7 King's Lynn, Thursday, Jan. 14
York, Tuesday, Jan, 5.
SITTINGS OF THE COURTS.
FOR THE WEEK ENDING SATURDAY, JAN. 9. Alcester, Wednesday, at 10
Manchester, Tuesday, Thursday, and Andover, Friday, at 11.30
Friday, at 10 Ashton-under-Lyne,* Thursday
Margate, Thursday, at 10 Birkenhead,* Friday, at 10
Marylebone, Monday, Tuesday, Thursday, Birmingham, Tuesday, Wednesday, Thurs- and Friday day, and Friday (J.S.), at 10
Melton Mowbray, Friday, at 11
Middlesbrough, Thursday, at 10
Newcastle-under-Lyme,* Tuesday, at 9.30 Bradford (Yorks),* Thursday (R., Bky), New Malton,* Thursday at 10
Newton Abbot, Friday, at 10 Brighton,* Thursday, at 10 (Reg., Bky, at Northwich,* Wodnesday, at 10 11); Friday, at 10
Nottingham, Friday (Reg., Bky) and Bromsgrove, * Saturday, at 10
Saturday (J.S.), at 9.45 Bury,* Wednesday (Reg.), at 9
Oakham,* Thursday, at 10 Canterbury, Monday, at 11
Oldham,* Thursday and Saturday, at 9.30 Carmarthen, Friday
Pembroke Dock, Wednesday Cheadle,* Saturday, at 10
Penrith, Friday, at 10.30 Chelmsford, Monday, at 11
Pershore,* Thursday, at 10 Cheltenham, Friday
Portsmouth, Thursday, at 12 Colchester, Tuesday, at 11
Ramsgate, Wednesday, at 10 Congleton,* Tuesday
Redditch, * Tuesday, at 10 Consett, Wednesday, at 10
Rhyl, Friday Crewe, * Monday
Rochdale, Friday, at 9 Deal, Friday, at 10
Runcorn, Tuesday, at 10 Dewsbury, Tuesday (Reg., Bky), at 10 Ryde, Wednesday, at 11 Downham, Wednesday, at 11
Salford, Wednesday, at 10 Durham, Tuesday (Reg., Bky)
Scarborough,* Tuesday Edmonton, Friday and Saturday, at 11 Selby,* Wednesday Evesham, Friday, at 10
Sheffield, Wednesday, Thursday, and FriExeter, Wednosday and Thursday, day, at 10 at 10
Soham, Saturday, at 2 Faringdon, Friday, at 10.30
Southampton, Tuesday, at 11 Grantham,* Tuesday, at 10
Southend, Thursday, at 11 Great Grimsby, Wednesday (Reg., Bky), Southport, Tuesday, at 10 at 11
South Shields, Thursday, at 10 Greenwich, Friday, at 10.30
Stafford, * Thursday, at 9.30 Halifax, Tuesday and Wednesday, at 10 Stamford,* Wednesday, at 1 Hartlepool, Friday, at 9.30
Stockport, * Friday Haverfordwest, Thursday
Stockton-on-Tees, * Friday, at 9.30 Hinckley, Saturday, at 10
Stow-on-the-Wold, Monday, at 10 Huddersfield, Thursday, and Friday (J.S.), Sunderland, Thursday (Reg., Bky) at 10
Thetford, Thursday, at 11 Hyde,* Wednesday
Torquay, Saturday, at 10
Wellingborough, Monday, at 10
Whitehaven, Wednesday, at 9 Liverpool, Monday, Tuesday, Wednesday, Wisbech, Friday, at 10
and Thursday, at 10; Friday (Bky and Witney, Wednesday, at 11 Adm.), at 11
Woolwich, Wednesday, at 10.30 Malvern, Friday, at 10
Workington, Thursday, at 9.30. * Other sittings are specially fixed if necessary.
ADMINISTRATION OF THE ESTATE OF THE LIVING. By CHARLES NOBLE GREGORY, A.M., LL.B., Professor of Law and Associate Dean,
College of Law, University of Wisconsin. On the 2nd day of June 1784 Thomas Priestman died, and on the 13th day of August 1785 one Robert Brown proved in the Prerogative Court of the Archbishop of Canterbury a forged paper writing purporting to be the last will of Priestman, whereby he was supposed to have appointed Brown his sole executor, and the court issued a probate of the supposed will in due form and under its seal, in favour of Brown. Dundas, as treasurer of the navy, owed Priestman at his death £58 138. 6d. for money had and received to bis use and, not knowing the will to be forged, and believing Brown rightfully the executor, on Brown's demand, paid said sum to him, as he was apparently bound to do.
Jaly 21, 1787, John Priestman, the father and next of kin of the deceased, caused Brown to be cited before the Prerogative Court of the Archbishop of Canterbury touching the validity of such supposed will, and the will and probate were, on proof of the forgery, declared null and void, and it was decided that deceased died intestate, and letters of administration were granted to Allen as attorney for the father. As such administrator he brought an action against Dundas for the money. Dundas defended on the ground that the payment to a duly appointed executor whose authority remained unrevoked, discharged the debt.
The matter came to hearing in the court of King's Bench in the 29th year of Geo. 3 (1789) (Allen v. Dundas, 3 Term 125.) In the argument, Sir Wm. Henry Ashurst, one of the puisne judges, interrupted counsel to say “Supposing that Priestman was not dead, and that on his return from abroad he had found that his wages had been paid to his executor under a forged will ; such a payment would have been no answer to an action brought by him.” However, when he came to decide the case, Ashhurst, J. held “I am of opinion that the plaintiff has no right to call on the defendant to pay this money a second time, which was paid to a person who had at that time a legal authority to receive it.” But he says arguendo, “ The case of the probate of a supposed will during the life of the party may be distinguished from the present because during his life the ecclesiastical court has no jurisdiction, nor can they inquire who is his representative; but when the party is dead it is within their jurisdiction."
And Mr. Justice Buller expressed substantially the same view in stating his opinion in the same case. Upon this slight foundation of dicta and suggestion of doctrines by way of argument has been built up the inflexible rule (in a majority of cases a hard and unjust one) that administration granted on the estate of a living person is absolutely void, and will not protect any person, however innocent, who has dealt with the representative on the faith of the letters issued by the court.
In 1814, in Griffith v. Frazier (8 Cranch, 9), no less an authority than C. J. Marshall, in argument (not in the decision of a point), transplanted the theory to our shores, observing : “But suppose administration be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is about to be committed to the care of others be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he appoints with the character or power of an administrator. The case in truth was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by law."
This last dictum was quoted and approved in Burns v. Van Loan (29 La. An. 560-4), but the case turned on certain statutory requirements which had been ignored.
In 1858 the South Carolina Court, in Moore v. Smith (11 Rich L. 569-72), stated the law to be as set out in the dicta above and pointed out with surprise the fact that no case could be found involving the exact point, and held that letters of administration and distribution thereunder, in an estate of a person proved to be living, were void.
Within the year the courts of North Carolina held a like rule (State v. White, 7 Ired L. 116), and that, in consequence, if supposed deceased were proved alive, the bond of the administrator was void and not enforcible. In 1861 the authoritative voice of the Supreme Court of Massachusetts was heard on the same question : (Jochumsen v. Suffolk Savings Bank, 3 Allen, 87). This decision holds tbat the only authority the Probate Court had in the matter was derived from the statute wbich conferred the power to appoint administrators upon the estates of deceased persons. That Jochum sen, a Danish seaman, having been absent and unheard of for twelve years, and letters having been granted on his estate, yet the defendant savings bank, having paid over moneys belonging to him to his administrator, must pay it a second time to Jochumsen himself, he having returned alive, although the previous payment had been in entire good faith. The dicta in the English and federal cases above, and some remote analogies, seem the main, if not the sole, basis given for this decision. The question seems thereafter to have arisen with much frequency, and the above Massachusetts case was followed in numerous decisions : United States v. Payne (4 Dillon 387), decided in 1877; Melia v. Simmons (45 Wisconsin, 334), decided in 1878; D'Arusment v. Jones (4 Lea 251), decided in 1880; Lavin v. The Emigrant Industrial Savings Bank (18 Blatch. 1), decided in 1880; Sterenson v. Superior Court (62 Cal. 60), decided in 1882 ; Devlin v. Commonwealth (101 Pa. St. 273), decided in 1882; Thomas v. People (107 III. 517), decided in 1883.
In this last case certain moneys derived from a partition sale were in the hands of a master in chancery. He paid them into the hands of an administrator duly appointed for John Joiner's estate on the presumption of his death, arising after more than seven years' absence. He was com
COMMERCIAL FAILURES AND BILLS OF SALE.-According to Stubbs' Weekly Gazette, the number of failures in England and Wales gazetted during the week ending the 26th Dec. was 167. The number in the corresponding week of last year was 176, showing a decrease of 9. The number of bills of sale in England and Wales registered at the Queen's Bench for the week ending the 26th Dec. was 140. The number in the corresponding week of last year was 132.
WARNING TO INTENDING HOUSE PURCHASERS AND LESSEES.—Before purchasing or renting a house have the sanitary arrangements thoroughly examined, tested, and reported upon by an expert from Messrs. Carter Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of full particulars. (Established 21 years.)--[Apvt.]
pelled to repay them to Joiner on the latter's return alive. The court follows the earlier decisions and also bases itself on the constitutional inhibition on the taking of life, liberty, or property without due process of law, holding that as John Joiner was in no sense a party to the proceeding, before the Probate Court, within the above principle, he could not be prejudiced by its action.
The useful result of these decisions is that any property or estate of a person who disappears or whose death can be only inferred, as frequently in case of shipwreck, conflagration, or battle, can be administered solely at the risk of all who deal with it; that the lands of such person must lie fallow and his chattels uncared for, or the court and the representative attempting to administer them, the heir, distributee, and all persons holding under them, as well as the custodian or debtor surrendering them or paying them over, incur liability for the full value and one which is often not measured by the ordinary statutes of limitation since, in Melia v. Simmons above, it was held the possession of one claiming by descent in such case was not adverse.
The above line of decisions is controverted by the much disputed case of Roderigas v. East River Savings Inst. (63 N. Y. 460), in which the Court of Appeals of New York by a decision, agreed to by four and dissented from by three judges, held that the inquiry by the surrogate as to the death of one upon whose estate administration is prayed, is judicial and the surrogate bas jurisdiction to determine it upon sufficient evidence, and letters issued by him upon due proof are conclusive evidence of the authority of the administrator to act until the order granting them is reversed on appeal or the letters are revoked or vacated, so far at least as to protect innocent persons acting on the faith of them, and, therefore, it was held where defendant had, on demand and presentation of the letters, paid over, in good faith, to the administrator of a supposed deceased depositor, the amount of his deposit, an action could not be maintained by such depositor, he proving not to be dead, to compel the payment of the same a second time to himself in person.
This just and well-reasoned decision, which protects those who act in good faith in accord with the direction of courts charged with the granting of letters, even if such court has reached an erroneous conclusion of fact, was bitterly attacked by Judge Redfield in 15 Am. L. Reg. 212, and was expressly dissented from in the Illinois decision above cited.
Four years later, in 1879, the matter came again before the same court (Roderigas v. East River Savings Inst., 76 N. Y. 316), and, it being proved that the letters were issued by a clerk in the absence of the surrogate, the court held that, to sustain the letters, it must be held that the plaintiff was dead or that the surrogate had so determined ; neither was true in fact, therefore, on neither basis could the administration be supported.
Plume v. Howard (46 N. J. L. 211-230), commends the reasoning of the earlier New York case, and holds payment to the administrator of a creditor adjudged dead on the presumption raised by seven years'absence, will absolutely discharge the debtor.
And Judge Dillon, in United States v. Payne (4 Dillon 387-9), distinguishes the New York decision from the case before him, and thinks much can be said on both sides of the question.
On the above discordant decisions Judge Woerner, in his extended and able work on the Law of Administration, comments thus, “ To condition the validity of a judgment upon a contingency in the womb of the future, which may or may not arrive, to ascribe to probate courts the power to inquire into and judicially determine upon the factum of death, if the party shall not thereafter return alive, and to deny the existence of such power if he shall afterwards be proved to be not dead, is to introduce a new principle into the science of the law, a new class of judgments (suigeneris it is to be hoped), which, ignis fatuus like, are apt to lure confiding persons into peril; a logic equal to that of the sportsman who so meant to shoot, as to kill, if what he aimed at was a wild turkey, and to miss if it was his neighbour's goose:” 1 Woerner Am. Law Adm., sect. 211. And again in the same section, “It may be a hardship for a man who returns to his home after a long absence to find that meanwhile his property has been sold or used to pay his debts, or that it has been distributed to his widow or next of kin. Fortunately, the cases of such Enoch Ardens are rare, but when they happen, it seems neither right, nor logical, nor politic, that the law should shift their misfortune apon other parties, at least as innocent as they. Not right because the party absenting himself is the victim of his own imprudence, or of a combination of circumstances in which he is the actor or sufferer, and should bear the consequences, because blame, if any, can attach to no one but him; while the judge who passes upon the evidence submitted to him, the administrator who winds up the estate, the debtor who pays in obedience to the law, act, not voluntarily, but upon compulsion of the sovereign authority of the state.” In a note to this section the same learned author suggests the liability of the probate judge who grants letters upon the proof of death, to refund to the alleged decedent, if he later prove alive, all that may have been distributed, and intimates that it would be as logical to hold a judge who pronounces sentence of death, the jary who found the verdict, and the carpenter who built the scaffold on which the criminal was executed, all guilty, if it should subsequently transpire that no crime had been committed. Since Judge Woerner's comprehensive work was published (1889), two notable decisions have been rendered upon the question under discussion.
Scott v. McNeal (31 Pac. Rep. 873). In this case, on application for letters on the estate of Scott, notice of the time and place of hearing the petition was given by posting notices in three public places, and on the day set the court heard testimony and adjudged that " Scott is dead to all intents and purposes," and granted the letters. The administrator on due license sold the lands of Scott to pay his debts. Scott returned alive, and brought ejectment against the innocent parchaser. The Supreme Court of the state of Washington held that the probate court having passed on the question and found Scott dead, its proceedings were
not absolutely void, that the equities were in favour of the innocent pur. chaser of the land. Scott wilfully abandoned the property, and had reasons to anticipate proceedings for administration. That such proceeding is substantially in rem and all parties must be held to have received notice of the pendency of the proceedings, and the decision treats them as bound by the finding until modified or reversed. The court especially referred to the discussion of the subject by Judge Woerner, cited above, and the case of Roderigas v. Inst. (63 N. Y. 460).
This Washington decision was promptly carried to the United States Supreme Court on writ of error and decided in 1894 (Scott v. McNeal, 14 Supreme Court Rep. 1108), and there it is held that the jurisdiction of the Probate Court in granting administration was limited to the estates of deceased persons; that it had no jurisdiction to determine that a living man was dead ; that notice to those who after his death may be interested in his estate is not notice to him ; that it is not a proceeding in rem, and neither creditors nor purchasers could acquire any rights in the property of Scott through such administration.
The elaborate opinion of Mr. Justice Gray reviews the decisions carefully and at length, and the learned justice fortifies himself with dicta of bis own while on the Supreme Bench of Massachusetts, and the earlier dicta quoted above, and quotes many decisions as well. Namely, in addition to those above discussed: McPherson v. Cauliff (11 Serg. and R. 422-30), Peebles Appeal (15 Serg. and R. 39.42), Waters v. Stickney (12 Allen, 1, 13), Day v. Floyd (130 Mass. 488-9), French v. Frazier (7 J. J. Marsh, 425-7), Duncan v. Stewart (25 Ala. 408), Andrews v. Avery (14 Grat. 229-36), Morgan v. Dodge (44 N. H. 255-9), Withers v. Patterson (27 Tex. 491-7), Johnson v. Beazley (65 Mo. 250-64), Perry v. Railroad (29 Kansas, 420-23).
All of which, in the opinion of Mr. Justice Gray, directly adjudge or distinctly recognise the absolute nullity of administration granted upon the estate of a living person. Thus founded, he, speaking for the court, reaches the conclusion that the administration on the estate of Scott was void, moreover that the proceedings in the courts of Washington, if maintained, would deprive Scott of his property without due process of law, even though there were process of law against his next of kin.
It would seem that this decision by the United States Supreme Court, based upon rights secured by the Federal Constitution, must put an end to all doubts as to the law of the land on this subject and make statutes, and there have been several, as futile as decisions to protect from liability those unfortunate persons called on to act with reference to estates or properties of owners who have disappeared, and who are alleged and presumed, but not absolutely known, to be dead. If X. is indebted to A., and B. is appointed the administrator of A. on presumption of death arising from seven years' absence and silence, the administrator demands payment of X. The latter refuses, and denies A.'s death. The administrator sues X. He litigates the question. The administrator proves A.'s absence and raises the presumption of death, and X. is not able to make any proof that he is alive. Judgment is given against X. with costs, and upon compulsion he pays it. The next day A. retarns alive. He can compel X. to pay the same debt a second time, since he, A., was not a party to the previous litigation, and the supposed administrator who represented him held an absolutely void appointment. It would seem that some means of protecting debtors and others thus situated ought to be devised. It is suggested that statutes might be passed, if, as seems the case, the ordinary statutes do not cover it, by which in such circumstances the alleged deceased could be in form made a party, cited and notified to appear by publication and posting. Then, if he were alive, the adjudication that he was deceased would be had in a proceeding to which he wis & party, of which he had formal and binding notice and by which he would be bound, antil it was directly reversed, revoked, or modified duly. Of course as to all, except innocent persons who could not be restored to their former situation, the proceedings would be promptly set aside by the probate court itself, on proof that the supposed deceased was alive and that a mistake had occurred, which (saving the equities which had attached) should be rectified.
This is suggested as a feasible method of avoiding the serious mis. carriage of justice and the scandal which the rule now 80 firmly established must result in, by compelling administration to be granted by courts upon certain proofs, compelling creditors to pay over to the administrators so appointed, and then making judges and debtors liable over, perhaps in ruinous sums, on account of their docility to the law. The present rule seems as remote from exact justice as could be devised, since it imposes the loss and hardships upon those who have been guilty of no laches, neglect, or remissness whatever, and often on those who were compelled by law to take the course and conduct for which they are ultimately mulcted.
THE NEWFOUNDLAND JUDGES AND THE
EXECUTIVE. We take the following from the Daily News of the colony, dated the 20th Nov.:
“Yesterday Mr. Justice Winter made his last appearance on the Bench. It had been wbispered that his Lordship would make a personal statement after the business before him had been completed, and a large number of the legal fraternity were present.
" Having disposed of the business, Sir James Winter addressed the Bar. He said that he had not yet formally sent in his resignation to the Government, because certain business remained to be disposed of, and be was desirous of leaving nothing undone. This, however, was his last appearance as a judge of the Supreme Court. He had taken this step with the greatest possible reluctance, and only after the most earnest and
result of doing their duty, and their only possible duty. For this all three judges, and himself chiefly, had been personally and collectively visited with insult. Even had the administration of the law paid attention to technicalities rather than the letter, which some erroneously maintained, there was no excuse. If the judges were wrong there was a right way and a wrong way to deal with them. While a public servant, especially a judge, retains his office he ought to be protected. The attacks on the Bench had not been merely private ones, or by the Executive as a body, but especially by those charged with the conduct of the Department of Justice. This was the state of affairs existing at the present moment. He had used strong language, but not too strong. The insults had been gratuitous and the Executive had gone out of its way to give effect to them. The Bench had submitted quietly and without protest or resistance, in order to avoid a public scandal. The public service had been damaged and threatened to be even more damaged by he conduct of those who were at present in charge of the public affairs of the Colony."
careful consideration. His action was not a hurried one, it was a long time since he first contemplated taking the step. He had accepted the position under the usual circumstances, and with the full expectation of taking a position which he would occupy until the end of his working days. He had entertained the hope that he might have been enabled, with the co-operation of others, to effect some desirable and very necessary improvements in the conduct of judicial business. It was with the greatest reluctance he found himself constrained, he might say compelled, to abandon that hope. The reasons that had impelled him were strong and potent ones. If they had been only personal ones, or referred solely to the matter of private means, he would not trouble the public with them. The reasons for his action were not confined to personal affairs, they affected very materially and directly the public service, and particularly the administration of justice in the colony--a service on which the whole fabric of society rested. They were seriously affecting, had already affected and threatened in the future to affect the integrity of the Bench and the proper administration of justice, and he feared that the longer he remained on the Bench the worse matters would become if things went on as they had been. One of his reasons for resigning was the reduction of the judges' salaries. That fact would not of itself have induced his resignation if it had taken place under different circumstances and in a different manner. If the reduction was the result of paramount pablic necessity the judges would have had sufficient public spirit and patriotism to have submitted without demur or to have withdrawn. For his own part he would have preferred to remain. He had been compelled by other facts and circumstances. He had firm, positive, actual knowledge that the redaction of the salaries was but one item of many—the result of other reasons and other motives, which undoubtedly, without the possi. bility of question, actuated those who made that reduction. They had not been actuated by a sense of justice or equality, but had exercised an unfair and unjustifiable discrimination against the judges, nominally on a principle, really to make it press unduly and severely on himself and colleagues. There had existed in this colony for a period long antecedent to and since the reduction, a terrible fact, which he had no hesitation in saying from his place, with a full realisation of the responsibility, had now and will or must for some time to come exist. He referred to the continuous and undisguised hostility of the Government of this colony in their individual and collective capacity-a hostility which was violent and malignant, and aimed at the Bench collectively and personally. This hostility had been extreme, and shown alike in acts of omission and eommission. It was impossible of excuse, and could only be accounted for by attributing it to virulent personal malignity. This hostility was the main reason which had decided him to take the present step. Already the public service had been damaged, and the matter was one of public comment, noticeable on every hand. It was impossible that any other result could follow when the Government had so plainly showed to the public its hostility to the Supreme Bench. The fact that members of the judiciary did not stand well with the Executive had been shown in public and in private acts, through censure and fault-finding, reflecting seriously on the integrity and competency of the Bench, thus necessarily lowering the respect for that tribunal. It was not only a question of the effect already produced, but of the effect which was likely to be produced. He did not purpose going into details, his only surprise was that those who might have been expected to know the results of their action could have acted as they had done. The official communications of those in the control and direction of the business of the Department of Justice, not only constituted the greatest possible affront to the members of the Bench, but endangered, if it had not already impaired, the public adminis. tration of justice, to say nothing of the observance of the common rules of decency and conduct which had governed men in the past. The other judges were not there to speak of their feelings, which had been keenly, seriously, bitterly outraged. Out of regard for the public service they were obliged to keep to themselves the fact that these feelings had been so unnecessarily and gratuitously wounded. The hostile attitude of the Executive was shown in connection with official and pecuniary matters, so small and trifling as to be unworthy of detailing, and had been manifested in many ways other than the reduction of salaries. There had been interference in the vested and established rights of the Bench, accompanied by circumstances that could not be described in a milder term than 'indignity' on the part of the Executive, and could only be traced to the motives of personal hostility that existed towards the occupants of the Bench. So much for the judges generally.
In his own case they had gone even further, possibly accidentally, possibly otherwise. He had been treated in such a manner as to compel him to take the course of litigation to secure claims, which were beyond the possibility of question and had considered it better to do so as a free man, rather than as a judge, appealing to brother judges ; and thus in hostility to the court of which he was himself a member. The treatment of himself had been utterly and absolutely inexcusable and unjustifiable. If any technical grounds of objections to his claims existed he was unaware of them, but there could not be any question as to the moral honesty on the one side and the moral dishonesty on the other. He had been refused on grounds which on their face were merely untrue and also foolish-he might say silly. This treatment had been followed up to the last moment, even to the time when he took a temporary holiday, the first time for over three years. He could no longer with self-respect and due regard to the proper administration of justice be a party to such a condition of things. The facts he had stated were notorious and had been shown in and out of the Legislature, in the press and in public and private conversation. Of course the reasons for all this treatment made it a still more gross reflection on the Bench. It was no use to disguise or blink at the reasons and origin. It was the result of the course the judges of the Supreme Court had been compelled to take in relation to matters that came before them and directly affected those individuals who were in power at the present time. It was the
TEMPLE CHURCH. The order of the morning service for to-morrow will be as follows: First Lesson : Isaiah xlii. Second Lesson: Matthew ii. Versicles, &c.: Ferial, pp. 1-3. Te Deum Laudamus: Boyce in C. Jubilate Deo : Boyce in C. Apostles' Creed: Harmonised Monotone, E. J. H., pp. 4 and 5. Preces and Responses, Ferial, pp. 6-8. Anthem : “O come let us worship ” (Mendelssohn, No. 323, p. 148). Kyrie Eleison : Young in B flat. Doxology (before and after the Gospel): Tallis, p. 89. Nicene Creed: J. H., p. 100. Hymn before Sermon : No. 217.
Morning service for Sunday, the 10th inst. :-First Lesson, Isaiah li. Second Lesson, Matthew vi. to v. 19. Versicles, &c. : Ferial, pp. 1-3. Te Deum Laudamus: Garrett in D. Jubilate Deo: Garrett in D. Apostles' Creed: Harmonised Monotone, E. J. H., pp. 4 and 5. Preces and Responses : Ferial, pp. 6-8. Anthem : “ Arise, shine” (Hopkins, No. 380, p. 173). Litany and Suffrages : Pages, 9-15. Hymn before Sermon : No. 373.
Morning service for Sunday, the 17th inst. :-First Lesson: Isaiah lv. Second Lesson : Matthew x. to v. 24. Versicles, &c. : Ferial, pp. 1-3. Te Deum Laudamus: Hopkins in C. Benedictus : Hopkins in C. Apostles' Creed: Harmonised Monotone, E.J. H., pp. 4 and 5. Preces and Responses : Ferial, pp. 6-8. Anthem : “When Jesus our Lord” (Mendelssohn, No. 297, p. 134). Kyrie Eleison : Hopkins in C. Doxology (before and after the Gospel): Tallis, p. 89. Nicene Creed: J. H., p. 100. Hymn before Sermon : No. 286.
Morning service for Sunday, the 24th inst. :-First Lesson: Isaiah lxii. Second Lesson : Matthew xiii., v. 53 and xiv. to v. 13. Versicles, &c. : Ferial, pp. 1-3. Te Deum Laudamus : Nares in F. Jubilate Deo: Nares in F. Apostles' Creed : Harmonised Monotone, E. J. H., pp. 4 and 5. Preces and Responses : Ferial, pp. 6-8. Anthem : “0 God! have mercy (Medelssohn, No. 303, p. 136). Litany and Suffrages : Pages 9-15. Hymn before Sermon: No. 345.
Morning service for Sunday, the 31st inst. :-First Lesson : Job xxvii. Second Lesson : Matthew xvii. v. 14. Versicles, &c. : Ferial, pp. 1-3. Te Deum Laudamus : Garrett in D. Jubilate Deo : Garrett in D. Apostles' Creed: Harmonised Monotone, E. J. H., pp. 4 and 5. Preces and Responses : Ferial, pp. 6-8. Anthem : “() worship the Lord” (Wesley, No. 281, p. 125). Litany and Suffrages : Pages 9-15. Hymn before Sermon : No. 187.
HEIRS-AT-LAW AND NEXT OF KIN. BOND (Ann), Weston-super-Mare, Somerset, who died Aug. 6. 1895. Persons iiving at
the time of her death, or the legal personal representatives of such as are now dead, claiming under the Statutes of Distribution to be entitled to her estate, to come in, by Feb. 15, and prove their claims at the chambers of Mr. Justice Kekewich. Feb. 23, at the said chambers, at two o'clock, is the time appointed
for hearing and adjudicating upon such claims. HARDING (George Whittall), formerly of Tanby, Queensland, afterwards of Nithdale.rd,
Sydney, a son of Henry Whittall Harding, 112, Newington-butts, Surrey, timber merchant; if living, or his legal personal representatives, to come in, by April 30, at the chambers of Mr. Justice North, and prove their claim to a sum of £500 and an 11th share of residue standing to the credit of the action of Harding v. Harding. May 4, at the said chambers, at one o'clock, is the time appointed for hearing and
adjudicating upon such claims. LACY (Thomas Hailes). lata of 89, Strand, and Sutton, Surrey, theatrical publisher,
who died about Aug. 1873. Persons claiming to be his heir-at-law, and persons claiming to be his next of kin under the Statutes of Distribution, living at his death, or the legal personal representatives of such as have since died, to come in, by Feb. 2, and prove their claims at the chambers of Mr. Justice Stirling. Feb. 12, at the said chambers, at twelve o'clock, is the time appointed for hearing
and adjudicating upon such claims. RENNIE (Jessie), widow, formerly Jessie Yielding: William Yielding and Alfred
(commonly called Fred) Yielding, the two half-brothers of the above, were sons of William Yielding by his marriage with his second wife, formerly Sarah Snow. spinster. He resided at the time of his marriage in Marylebone, and afterwards at 51, First-st, Chelsea, and 8 and 2, Alfred-pl, Alexander-sq. One of the two said sons emigrated to Australia many years ago, and is believed to have kept an hotel at Sydney; the other went to sea, and has not been heard of for thirty-five years. If either of the two sons, or the child or children of either living on June 26. 1896, will apply before Sept. 1, 1897, to E. Hilder, solicitor, 36, Jermynst, s.w., they will hear of something to their advantage in connection with the estate of the above J. Rennie, on furnishing satisfactory proof of their
identity. SIDGREAVES (Mary Elizabeth), late of 1, Stafford-st, Chorlton-upon-Medlock, who died
July 3, 1892. Persons claiming to be her heir-at-law living at her death, or, if such heir-at-law be dead, claiming by devise to be entitled to such real estate as descended to such heir-at-law under the will of Thomas Barry, to come in, by Jan. 28, and prove their claims at the chambers of the Registrar of the Manchester District Court of Chancery, 4, Clarence-st, Manchester. Feb. 4, at the said chambers, at eleven o'clock, is the time appointed for hearing and adjudicating upon such claims.