tent. Courts of Local Jurisdiction. His dispatch of business was great, and his decisions were held in high estimation by the Scotch lawyers; so that when he visited that country in the autumn of 1825, he was treated with marked respect by the judges of the Court of Session and other persons of legal eminence. The University of Edinburgh conferred on him the honorary degree of doctor of laws, (as the University of Cambridge had previously that of master of arts,) and he was admitted to the freedom of the metropolis of Scotland. On the death of Sir Thomas Plumer, master of the Rolls, in March 1824, Lord Gifford quitted the bench of the Common Pleas, and became his successor. This remove subjected him to increased labour: in addition to the business of the Rolls, he had to give his particular attention to the appeals before the privy council, as well as to discharge the duty of deputy speaker in the House of Lords, and to determine the Scotch appeals. All this he did without any other remuneration than that attached to the office of master of the Rolls, till the 6th of George IV. Unhappily his spirits were oppressed with his laborious occupations: his health declined: in the latter end of August 1826, he was affected by a bilions attack, while at Dover, and on the 4th of September following he expired. His remains were interred in the Roll's chapel, on the 12th of that month, attended to the grave by many dignita ries of the law, and other eminent men, who were forward to testify their respect for his memory. He married in April 1816, and had issue, while living, three sons and three daughters: his lady was delivered of another son, nine weeks after his decease. His professional and public character have already been considered in the course of this imperfect sketch: his private character is faithfully pourtrayed in the following extract from the Morning Chronicle, which, though opposed to his politics, has rendered justice to the man: 'His own affectionate nature secured for him the warm regard of those who were near enough to see bis character. His mind, unstained by vice, had no need of concealment, and was at liberty to indulge its native frankness. He was unassuming, unaffected, mild, friendly, indulgent, and in intimate society, gently playful. His attachments were constant, his resentment (for he had no enmity,) was hard to provoke, and easily subsided. last moments he was sustained by the domestic affection and religious hope which had cheered his life. In his "Among the numerous body who have risen from the middle classes to the highest stations of the law, it will be hard to name any individual who owed his preferment more certainly to a belief of his merit than Lord Gifford, or who possessed more of those virtues which are most fitted to disarm the jealousy naturally attendant on great and sudden advancement." COURTS OF LOCAL JURISDICTION. We subjoin an abstract of the bill lately brought into parliament, by Mr. Brougham, for the establishment of local courts for Kent, and for Durham and Northumberland, and which it is designed should be extended to the other counties of England and Wales. This epitome of the proposed Act accompa nied the printed copy of the Bill, and is, of course, an accurate summary of its contents. The bill proposes to facilitate the trial of 9 causes, and to diminish the expense, delay, and inconvenience, attending them. To accomplish these objects, five species of tribunal are to be established. The 1st would resemble a County Court, limited to actions in some cases for £100, and in others for £50. The 2d would be a kind of £5 Court of Requests. The 3d a court for Legacies, not exceeding £100. The 4th a court for actions of any amount tried by Consent. The 5th, an Arbitration court, and the 6th a Reconcilement court. Although the bill only provides for two courts, land, its provisions may be extended to the other one for Kent, and one for Durham and Northumbercounties of England and Wales, as soon as it can be ascertained how large each juridical district should be. of trying causes at as little expense, and with as little The object of the bill being to afford the means delay and inconvenience as possible to the suitors; district courts are established under the revision of superior courts in most cases. ordinary, and he has a registrar, with a clerk, crier, The judge of each district is called the judge in usher, and messenger. The judge must be a sergeant or a barrister of ten years' standing. He and the registrar are appointed by the crown, the clerk by the registrar, and the other officers by the judge. The judge, registrar, and clerk, are paid partly by salary, and partly by a proportion of fees collected on the business done; but those fees do not depend cedure in any case, they depend only on the number upon the number of steps, or the length of the pro. and value of the causes. salary, and the usher and messengers by salary, and The crier is paid by fixed fees on the service of process Extra messengers are to be appointed, when necessary, from the sheriffs' bailiffs, and these are to be paid by fees on the service of process. The constitution of the court is laid down in the first twelve sections, and of the courts of Westminster hall, sec. 106. rules of practice are to be laid down by the judges The court thus established has six branches of jurisdiction, three compulsory, and three voluntary. certain actions, in small debts, and in legacies; the or prorogated. The compulsory jurisdiction is in voluntary, in all actions, in arbitration, and in re concilement. The court is to sit once a month at least, except in August, and in different parts of the district. that and the adjoining counties, and in the comThe judge ordinary is to be a justice of peace of mission of Oyer and Terminer, and Gaol delivery. 1. The court has authority to try all actions where the defendant resides within the district, and the cause of action, if on a debt, does not exceed one hundred pounds, or if on a tort, fifty pounds, and where title to real estate, tithe, or by bankruptcy, or to toll, market, or other franchise, does not come in question. small debts not exceeding five pounds, under the 2. It has authority to try, in a summary way, like restriction as to real estate, &c. 3. It has authority to try claims of legacy not exceeding one hundred pounds. 4. It has authority to try all actions at law, of all kinds, and to any amount, by consent of parties. 5. It has authority to try all matters, whether at law, or in equity, by way of arbitration, the parties consenting. 6. It has authority to hear, and advise upon all 10 Courts of Local Jurisdiction. disputes, with consent of the parties, for the purpose of reconcilement. 1.-ACTIONS. 2.-PLAINTS. The proceeding in the Small Debt Court (for sums not exceeding five pounds) of the judge in ordinary, is by plaint and plea. The rules relating to the service, pleading, and notices, are laid down in sections 52, 53, 54, and 55, and forms are given in schedule (C.) The judge is to sit for the trial of plaints at each place immediately after the sittings for trials of actions. He may examine on oath the parties before him, and these parties may appear by others, if prevented from attending. The execution is summary, by warrant; and there is no appeal or revision, unless the judge deems it fitting. The proceeding here is by statement, answer, reply, and rejoinder. Sections 13, 14, 15, 49, 51, treat of the jurisdiction under this head. The manner of serving the defendant with the statement, which stands both for writ and declaration; of putting in the answer, which serves for plea or demurrer, as the case may be; of putting in the reply, which serves for both replication and demurrer; and of putting in the rejoinder, which may be either rejoinder or demurrer, is laid down in sections 16, 17, 18, and 19, and the consequences of making default are laid down in section 86. The manner of pleading, in its different stages, is laid down in sections 16, 17, 18, and 19, and Schedule (C) gives various forms, according to which the pleading is to be conducted, as nearly as may be. Precautions are taken to prevent prolixity and misstatement of facts, by making practitioners liable for the consequences of the same, at the discretion of the court; but the parties have a direct interest in put-serving the office of both subpoena and bill; and by The proceeding in legacy is by citation and claim, ting these discretionary powers in motion; sections 21, 22, 23, 36, 37. The process for summoning jurors and witnesses is laid down in sections 30, 31, 34, 35, and schedule (D.); the mode of trial in sections 29, 32, 33. The judge is authorised to give time to parties for pleading, and to put off trials; and he is also authorised to hear parties and their attornies, and on oath if he pleases, on the matter of such applica tions. Sections 21, 87, 88, 89. The judge is authorized to decide points of law raised before him on the pleadings. ر The general mode of proceeding in trying matter of fact is by jury; but the judge, with the consent of both parties, may try any matter of fact without a jury, with power, if in the course of the trial be finds the matter, or any part of it, more fit for a jury, to impanel one. He may also, with consent of both parties, exclude strangers, and try the action in private, with or without a jury, as the case may be. These powers are defined in sections 25, 26, 27, 28, and 93. Any matter tried before a judge, whether of law or fact, may be reviewed by a motion before the judge of assize for the county, the judge in ordinary sitting with him, but not having a vote in the decision of the appeal. If the judge of assize pleases, he may hear it with the other judge of assize. The judgment of the judge in ordinary, in matter of law, may be reviewed by the judge, or judges of assize; and the sentence of the judge in ordinary and verdict of the jury, in matter of fact, may be set aside, and a new trial ordered, by the same judge or judges. Powers are given, under certain restrictions, as to costs and securities, of carrying the matter before the courts of Westminster, from the decision of the judge of assize; and a discretionary power is also given to the judge in ordinary, to require securities before appeal by motion to the judge of assize. Powers are also given, under certain restrictions, to both the judge in ordinary, and judges of assize, to reserve points, and order cases for the opinion of the superior courts. The subject of appeal is treated of in sections 41, 42, 43, 44, 45, 46, 47, 48, and 51. Upon all final judgments execution is to be taken out, and the process thereof served, according to rules laid down in Sections 38, 39, and 40. The judge has power to order payment by instalments, section 39, and debts may be assigned in satisfaction, section 40. The trial is by the judge, without a jury, unless he thinks it fit to have a jury. The trial of plaints is treated of in sections 56, 57, 58, and 60; the judgment and execution in sections 59, 61, and 62. 3.-LEGACY. article, serving the office of answer, plea, and de murrer. after the executor or administrator's title accrued, The citation must be not less than six months and twelve months after the death of the testator. The rules for proceeding and pleading in legacy are laid down in sections 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, and 78, and forms are given in schedule (C.) Wherever the executor, or administrator, has free assets, he must either pay the legacy as far as his assets go, or he must show cause why he does not, stating the claims against the estate, which he apprehends may be made; and, in that case, he must pay the money claimed into court, to await the coming in of such claims. An appeal, by way of motion, lies from decisions in legacy, to the courts of law and equity, according to rules laid down in sections 70 and 73. 4.-GENERAL JURISDICTION BY CONSENT. This extends to all actions at law. The consent of parties must be given in writing, and filed with the statement, answer, &c. or at whatever other stage of the cause, the necessity arises of extending the jurisdiction beyond its ordinary limits. This is laid down in section 14, and the forms are given in schedule (C) The forms of pleading under such parts of this head as are not exemplified under the head of Actions, are given in schedule (C.) The mode of proceeding is laid down in sections 79, 80, 81, 82, and 83. The judge is to raise any question of law on the face of his award, that either party desires to carry before one of the superior courts of law or equity. He has also power to try any part of the matter referred to him by a jury, subject to certain rules. The reference to him is irrevocable; witnesses are compellable to attend him; false swearing before him is punishable as perjury; and his award can only be impeached if it exceed the terms of the refer ence. Judgment and execution on the award is to be had, as laid down in sections 84 and 85. Original Letter of Justice Blackstone. Schedule (F.) attorney's fees [in blank] It may be useful for the information of our readers, to add to this abstract the following details, extracted from the bill. The judges and registrars are not removable except by address from both houses of parliament. The clerks are removable without assigning a reason, at the pleasure of the registrars. The criers, messengers, and ushers, are removable in the same way by the judges. The salary of the judge, including fees, is not to exceed £2000 a-year; that of the registrar, £700; the clerk one fourth of the amount of the registrar's salary; the crier, £80; and the mes senger and usher £50 each, with the fees of serving process. Causes of action are not to be split, so as to bring them within the jurisdiction of the court, but the excess of amount may be abandoned, and the judgment shall be a discharge for all demands on the same cause of action. The defendant's place of residence to determine the venue, unless by consent. 11 made through the fault of the attorney, the judge shall call upon him in a summary way to answer the matter of the complaint, and fine him in such reasonable sum as he shall think fit to be paid to the said plaintiff or defendant, for whom he was employed respectively. In the Reconcilement court, the party cited, shall, at his own election, appear or not, and shall, within one week, serve notice of his intention; and such notice, with proof of citation, may be given in evidence, to prove the refusal to appear: sec. 97. It shall be in the option of the parties to follow, and abide by the advice of the judge, or not, as they shall think fit: sec. 100. We postpone our observations on the policy of this measure. We consider it one of such vast importance to the interests of the community, as well as of the members of the profession, that we are desirous to collect the opinions of men of experience, and we therefore invite a temperate discussion of its merits and demerits. MR. JUSTICE BLACKSTONE. To the Editor of the Legal Observer. SIR, I HAVE read with great pleasure the Pros- the judge's letters, which may possibly, at DEAR SIR, J. J. J. S. You have been so kind as to tell me, The responsibility of attorneys, under section 19, is as follows: "that in all cases, the judge yt a Line now & then from me wd not be unacbefore whom such action shall be tried, shall be em-ceptable to you. 'Tis this that has drawn upon You powered to direct the jury to take into consideration ye present Trouble, for wch You have Nobody but any plain and wilful departure from the real truth of Yourself to blame. the case, in the written statements of the parties, and I have been in Town about ten Days, & am to diminish the amount of the damages given to the tolerably well settled in my new Habitation (wch is party guilty of such misrepresentation, if he be at Mr. Stokes's a Limner in Arundel-Street). The plaintiff, or increase the amount of the damages People of ye House seem honest, civil, & indusgiven against such party, if he be defendant; and, trious; & my Lodgings are in themselves chearif it shall, at any time within six months from the ful, retired, &, as every Body tells me, extremely trial of the cause, be made to appear, to the satis-reasonable. Nor do I want Opportunities of Galfaction of the judge, that such misrepresentation was lantry (if I have inclination to improve them) there is 12 Recent Decisions in the Courts of Equity. lodging in ye same House a young Lady of extraor- | Qu. How shall ye Estate be divided? N.B. We dinary Accomplishments & a very ample Fortune; must suppose a Jointure, or something, in Bar of but alas! She has, together with ye Riches, ye Dower. Complexion also of a Jew. So that She is not like to prove a very formidable Rival to Coke upon Littleton. We are quite in y Dark as to Intelligence here in Town, You must observe what strange, perplexed, incoherent Accts ye Gazette affords us. I fear our Loss in Scotland was greater than they care to own. But at ye same time, even Victory must lessen ye Number of ye Rebels, while we are continually recruiting. There is a Talk of assessing all personal Estates, & raising thereby 3 millions. If so ye Assessment must run high. I was sensibly concerned at hearing of Mar Richmond's Illness; but hope, by not hearing lately any thing further, that all is well again. My hearty Good wishes attend him, & my Cousin, who I shd think might take a Trip to Town this Spring. My Aunt of Worting will be at Lincolns-inn-fields about Easter; and probably wḍ be glad of a Com. panion to partake of some of ye gay Diversions Coke I have not yet ventured to attack, but have (according to Ch. J. Reeves's Plan) begun with Littleton only. Two together wd be too much for a Hercules, but I am in great Hopes of managing them one after ye other. I have stormed one Book of Littleton, & opened my Trenches before ye 2d; and I can with pleasure say I have met with no Difficulty of Consequence; There is one thing indeed, & but one, I cd not understand in ye first Book, wch is a mere matter of Speculation : & is in short this. The Donees in Frank-Marriage shall do no Service (but that of Fealty) to ye Donor or his Heirs till ye 4th Degree be past. Of wch 4 Degrees ye Donee shall be said to be ye first. 6. 20. To prove wch last Assertion Littleton produces a Writ of Right of Ward (as you may see Pag. 23. b.) Now with me ye Question is, how the Writ wch he produces proves ye Point he wd have it do, viz. that ye Donee in Frank-Marriage is ye first of ye four Degrees. You will observe that this is a Point of mere Curiosity, Frank- Marriage being now out of Use. But I don't love to march into an unknown To MR. RICHMOND, at Sparsholt, near Country, without securing every Post behind me: & it is a greater Slur upon a General to leave a slight Place untaken, than one more hard of Access. Besides, in my apprehension, (and I shd be glad to know your opinion of ye matter) ye Learning out of use is as necessary to a Beginner as that of every Day's Practise. There seem in ye modern Law to be so many References to ye ancient Tenures & Services, that a Man who wd understand ye Rea sons, ye Grounds, & Original of what is Law at this Day must look back to what it was merly; otherwise his Learning will be both confused & superficial. Excuse, Sir, this tedious Length, wch I promise never to be guilty of again, & when You have an idle hour, be so good as do think of, Sir, Your most obliged humble Servant, WILL. BLACKSTONE. Arundel-Street, Jan. 28, 1745. (Superscribed) for I have sometimes thought that ye Common Law, as it stood in Littleton's Days, resembled a regular Edifice where ye Apartments were properly disposed, leading one into another without Confusion, where every part was subservient to ye whole, all uniting in one beautiful Symmetry: & every Room had its distinct Office allotted to it. But as it is now, swoln, shrunk, curtailed, enlarged, altered, & mangled, by various & contradictory Statutes, &c; it resembles ye same Edifice, with many of its most useful Parts pulled down, with preposterous Addi tions in other Places, of different Materials and coarse workmanship: according to ye Whim, or Prejudice, or private Convenience of ye Builders. By wch means the Communication of ye Parts is destroyed, and their Harmony quite annihilated; & now it remains a huge, irregular Pile, with many noble Apartments, tho' awkwardly put together, & some of them of no visible Use at present. But if one desires to know why they were built, to what End or Use, how they communicated with ye rest, and ye like; he must necessarily carry in bis Head ye Model of ye oid House, wch will be ye only Clew to guide bim thro' this new Labyrinth. I have trespassed so far on yr Patience, that 1 am almost afraid to venture any farther. But I happen'd t'other day upon a Case in a Civil Law Book, wch I should be glad to know how you imagine Chancery wd decide. A Man dies & leaves his Wife with Child: & by his Will ordains that, if his Wife brought forth a Son; ye Son shd have 2 3ds & ye Mother one 3, of the Estate: If a Daughter, then ye Wife to have 2, & ye Daughter 134. The Wife brought Twins, a Boy & a Girl. Wantage, Berks. RECENT DECISIONS IN THE COURTS SOLICITOR AND CLIENT-SOLICITOR AND TOWN AGENT. Livesey and others v. Livesey and and others. By the direction of A. a bill was filed for the ad- act as solicitors for her. Chancellor had made an order that Ellis and Co. The Lord Chancellor. I consider E. W. Livesey plaintiffs, and the propriety of his appointment does as having been, in point of fact, the solicitor of the not come into question for the purposes of this motion. Whatever impropriety there might be in the appointment, it was the act of J. W. Livesey. these papers came into their possession as agents. Ellis and Co. were the agents of E. W. Livesey, and They are, therefore, held by them for the benefit of their clients, and one or two of the plaintiffs are not entitled to demand the delivery of them without the concurrence of the third. Let the order of the Vice Chancellor be discharged. WHERE WITNESS IS PRIVILEGED FROM ARREST. Gibbs v. Phillipson.-1 Russel and Mylne, 19. Recent Decisions in the Courts of Equity. candum in London, and is at the time resident there, is not protected from arrest in the interval between the service of the subpana and the day appointed for his examination. But it would seem that a witness not resident in London, but who comes there in order to be examined, is protected from arrest during the whole time that he remains in London bond fide for the purpose of giving evidence. But a witness is not protected in going three days before the day appointed by the examiner to the solicitor's office to look at the interrogatories with a view to prepare himself to give his evidence accurately. CUSTOMARY TENEMENTS. Bingham v. Woodgate.-1 Russell and Mylne, 32. Where a customary tenement is freehold, and the lord being only tenant for life of the manor, purchases the fee of the customary tenement, the seignory is suspended during the life of the lord, but revives at his death, and the customary tenement descends to his heir. Where the custom of a manor requires a bargain and sale, as well as a surrender and admittance, to pass the customary tene. ment, the freehold is in the tenant, and not in the lord. The judgment of the Master of the Rolls is as follows: 13 that he had a right to recover by ejectment that portion of the leasehold which was in Trenchard's occupation. It was also determined, that where the possession is vacant, a purchaser is not bound to inquire of the late occupier what was the nature of his title. PARTNERSHIP-USURY-MINES. Fereday v. Wightwick.-1 Russell and Mylne, 45. Where a lease of mines is taken by six persons for the purpose of working them in partnership, and the managing partner, in the course of his management, becomes indebted to the concern, his interest in the partnership is in the first place applicable to satisfy his debt to the concern. Where an annuity is grauted for a term of years, to be paid half yearly, and at the same time promissory notes are given to the grantee for the payment of each half year's annuity when it becomes due, and it appears that the several half-yearly payments will repay the purchase money with interest, exceeding the rate of £5 per cent. the transaction is usurious. The judgment of the Master of the Rolls on both points is as follows: "The general principle is, that all property acquired for the purpose of a trading concern, whether A lord of the manor, who was tenant for life only, it be of a personal or real nature, is to be consipurchased the fee of three customary tenements dered as partnership property, and is to be first apwhich were holden of the manor, and which, ac-plied accordingly, in satisfaction of the demands of cording to the custom of the manor, were conveyed to him by bargain and sale, and also by surrender. The custom of the manor required a bargain and sale, as well as a surrender and admittance, to pass the customary tenements; they are plainly freehold ; and Paul v. Lord Dudley, 15 East, 167, and Doe v. Danvers, 7 East, 299, have therefore no application. The necessity of surrender and admittance is probably a remnant of the ancient tenure of villenage, and does not affect the freehold nature of the interest, although it prevents the customary tenement from being strictly of freehold tenure,-a distinction which is well established. The question then is, what is the effect of the union of the fee of the customary tenements, with the estate for life of the lord. If the lord had been seised in fee of the manor, then the union would have extinguished the customary tenements; but extinguishment takes place only when the two estates have the same duration. The lord being tenant for life, the effect of the union was to suspend the seignory during the life of the lord, for a man cannot at the same time be lord and tenant: but, at the death of the lord, the seignory was revived, and the fee of the customary tenements descended to his heir at law. This doctrine is fully stated in Littleton, sections 559, 560, 561; and in Lord Coke's commentary on those sections. the partnership. It is true, a mining concern dif- "With respect to the question of usury, I shall not refer to the old cases which have been cited. This, in effect, is an agreement to pay the principal sum of £4000, with interest, by twenty-three instalments; and, as it appears that the interest thus paid will exceed legal interest, the transaction is plainly usurious." PURCHASE BY AGENT. Lees v. Nuttall.--1 Russell and Mylne, 53. If an agent employed to purchase an estate beThe master's report is, therefore, correct, and the dered by a court of equity as a trustee for his comes the purchaser for himself, he will be consiexceptions must be overruled. VENDOR AND PURCHASER. Miles v. Langley.--1 Russell and Mylne, 39. Under an agreement of exchange between Hellicar, who held lands under a college lease, and Trenchard, the owner of the adjoining estate. Trenchard occupied part of the college lands, and Hellicar had occupied, along with the residue of the leasehold, part of Trenchard's estate. Hellicar having become bankrupt, the college leasehold was sold, and was described in the particulars of sale as "late the residence of Hellicar." It was held that the purchaser was not to be considered as having implied notice of the agreement of exchange, and principal. |