PROBATE AND DIVORCE, &c., COURT.

Orders by her Majesty in Council have been issued appointing the 11th day of January instant as the period for the coming into operation of the new Probate Act and the Divorce and Matrimonial Causes Act (ante, pp. 157-160, 165–169, 215, 216),

With respect to the Probate Act, the order directs that the said recited act (except where otherwise specially provided) shall come into operation on the 11th January next; and her Majesty, by and with the like advice, is further pleased to order and appoint, and it is hereby ordered and appointed, that the above-mentioned Court of Probate shall hold its ordinary sittings in any of the courts in Westminster Hall which can be conveniently used for the purpose, and shall have its principal registry in the city of London, in the building now used as the public registry of the Prerogative Court of the Archbishop of Canterbury."

As to the Divorce and Matrimonial Causes Act, the order directs that the said recited act shall come into operation on the 11th January next; and her Majesty, by and with the like advice, is further pleased to order and appoint, and it is hereby ordered and appointed, that the above-mentioned Court for Divorce and Matrimonial Causes shall hold its sittings in any of the courts in Wesminster Hall which can be conveniently used for the purpose.

THE MONTH'S SUMMARY.

Joint-Stock Company - Winding up-7 & 8 Vic. c. 110, s. 29-Director being contracting party -Purchase of goodwill of business—Notice. As we have before seen (ante, pp. 149–152), there is no remedy, either at law or in equity, against a company upon any contract to which a director of the company was a party, and in which he was interested, unless the requirements of the 29th section of 7 & 8 Vic. c. 110, have been complied with (Sea Fire Life Assurance Society v. Port of London Shipowners' Loan and Assurance Society, 6 Week. Rep. 24).

Metropolitan county courts-19 & 20 Vic. c. 108, s. 18-Residence of plaintiff.-The following decision has been noticed at greater length in the "Summary" in the present number. A plaintiff, in a metropolitan county court, since the 19 & 20 Vic. c. 108, s. 18, failed in his suit, because it appeared that neither he nor the defendant resided within the jurisdiction of that county court, and that the cause of action arose elsewhere. The plaintiff then came to reside within the jurisdiction, and, a few days

afterwards, took out a fresh summons: Held, that he was entitled to do so. Per Martin, B. A man may come to lodge within the jurisdiction of a county court for which he has a predilection, for the express purpose of bringing an action there (Massey v. Burton, 3 Jur. N. S. 1130).

Will-Competency of testator [ante, pp. 123, 124]— Onus probandi-Presumption.-A party propounding a will, is bound to show that it was executed by the testator, and that he was of a sound and disposing mind; but if there is nothing irrational about the document, the jury will be directed to find for the will without proof of sanity (Sutton v. Sadler, 26 Law Journ. C. P. 284; ante, pp. 123, 124).

Discovery Ejectment.-A plaintiff in ejectment is not entitled to a discovery of the defendant's title (Horton v. Bott, 5 Week. Rep. 792).

Arrest-Sheriff-Arrest on void writ-Detainer on other writs- Ca. sa. -Fi. fa.-Duties of sheriffLiberty of the subject-Review of the authorities.-We have elsewhere shortly noticed the following case, but its importance merits further consideration. It is established that, where the sheriff has arrested on one good and valid writ, he may detain on any number of valid writs which he had at the time of the arrest, or which may afterwards have reached him. But in the case of an arrest on an invalid writ it is different. Though the party arrested has been deprived of his liberty, that has been done in circumstances which make it the duty of the sheriff to discharge him. He has no right to treat him as a person deprived of his liberty, and an arrest on the valid writ is therefore necessary. But to allow the sheriff to make such an arrest, while the party is unlawfully confined by him, would be to permit him to profit by his own wrong, and therefore cannot be tolerated. The sheriff cannot arrest him, because he has already been deprived of his liberty; the sheriff cannot detain him, because he is entitled to be discharged. Barratt v. Price (9 Bing. 566) confirmed. If the sheriff, by the illegal act of himself or his officer, has taken a person unlawfully into custody. so that the custody amounts to a false imprisonment, the sheriff cannot avail himself of that illegal detention to execute against his body other writs which he holds at the suit of other plaintiffs. The liberty of the subject requires that a person illegally arrested should have an absolute unqualified right against the person who has illegally arrested him, to be set at large without reference to what may be the consequence of his liberation to others. Though for some purposes the sheriff is the agent of the party who puts a writ into his hands, he is not a mere agent. He is a public functionary having duties to perform as well towards those against whom the writs in his hands are directed as towards those who put those

writs into his hands. The sheriff S. held a ca."sa. against B., lodged by L. more than one year before. A writ at the suit of A., but void on the face of it, was then handed to S., who 'issued his warrant to his officer, who arrested B. thereon. B. applied to a judge at chambers and was discharged, whercon S. claimed to detain him on L.'s writ. But the judge discharged B. absolutely, and he left the country. L. then sued S. for negligence, the declaration alleging as the first breach the non-arrest, and as a second breach the arrest of B. on an invalid writ, whereby B. was discharged, and thereby L.'s writ became useless. S. pleaded not guilty to the whole declaration, and traversed particular allegations. The judge at the trial ruled that there had been no arrest on L.'s writ; that it was for the jury to say if S. was guilty of negligence towards L. in not knowing that A.'s writ was invalid, and that B was set free from all writs by his discharge, which was no justification of S. The jury having found for the plaintiff, except on the issue on the second breach, and a bill of exceptions being tendered: Held, affirming the judgment of the Ex. Ch. (Wightman, J., Erle, J., Martin, B., and Bramwell, B., dissenting), that the ruling was right, (Hooper v. Lane, 30 Law Tim. Rep. 33).

Legal Status of an Englishman in France.-The following general statement of the legal status of an Englishman in France, may be interesting and even useful to our readers:-"Great facilities are given by the law of France for the arrest of a foreigner when the creditor is a Frenchman, and many an unfortunate Englishman has been incarcerated upon overdue bills of exchange (often obtained from him fraudulently) indorsed to a Frenchman. As, however, in the majority of cases, the party is not a bonâ fide holder for valuable consideration, but merely a man of straw who lends his name for the occasion (technically called a prêtenom), the debtor generally succeeds in obtaining his liberation on showing to the court the real nature of the transaction, and getting the arrest declared illegal. This, however, requires some time to effect, as if he succeeds in the Tribunal de Commerce, the nonimal creditor appeals to the Cour Impériale, and months elapse before a final judgment can be obtained. In the meantime the unfortunate debtor must remain in prison, unless he can deposit the amount claimed in the Classe des Consignations, or give bail; and as the surety is not only answerable, as in England, for the appearance of the debtor, but also for the payment of the debt and costs in case judgment is given against him, and he is unable to meet the demand, it is almost impossible for a foreigner to find a substantial person willing to undertake responsibility. In England no distinction

is made as to liability to arrest between a British subject and a foreigner, as neither can be arrested on mesne process (that is, before judgment), unless the creditor can prove, to the satisfaction of a judge, that the debtor intends to leave the country. Art. 11, tit. 1, liv. 1, of the Code Napoleon, says:— L'étranger jouira en France des mêmes droits civils que ceux qui sont ou seront accordés aux Français par les traités de la nation à laquelle cet étranger appartiendra.' It is not, however, sufficient that certain rights are accorded to Frenchmen by the laws of a foreign country for the subjects of that country to enjoy the same privileges in France; the reciprocity must be expressly stipulated for by treaty, (see Rogron's note on this article in his Code Civil Expliqué). Now, no treaty exists which puts Frenchmen in England and Englishmen in France upon an equality as to arrest for debt, the former enjoying in England the same privilege in that respect as a British subject, purely and simply by the law of the land. It strikes me, however, that if the case were brought officially to the notice of the French Government, they would admit the equity of the claim of British subjects to enjoy in France the same privileges as the law of England accords to Frenchmen in that country; and the cordial alliance which now exists between the two nations, the high sense of justice of the Emperor of the French, and the well-known zeal of our ambassador at Paris, seem to render the present moment peculiarly favourable for obtaining the desired object.”

Sir William Follett.—If it had pleased Providence to prolong his days, he would have afforded a nobler subject for some future biographer than most of those whose career it has been my task to delineate. When he was prematurely cut off, the highest office of the law was within his reach; and I make no doubt that by the great distinction he would have acquired as a judge, as a statesman, and as an orator, a deep interest would have been given to all the incidents of his past life, which they want with the vulgar herd of mankind, because he never sat on the bench, nor had titles of nobility conferred upon him. One most remarkable circumstance would have been told respecting his rise to be the most popular advocate of his day, to be Attorney-General, and to be a powerful debater in the House of Commons-that it was wholly unaccompanied by envy. Those who have outstripped their competitors have often a great drawback upon their satisfaction by observing the grudging and ill-will with which, by some, their success is beheld. Such were Follett's inoffensive manners and unquestioned superiority, that all rejoiced at every step he attained-as all wept when he was snatched away from the still higher honours which awaited him.-Lora Campbell.

THE BAR AND SOLICITORS. ·

The prospects of business at the bar are daily becoming more gloomy, but this does not appear to affect the number of entries at the inns of courtat least so it is asserted, but we much doubt the correctness of this statement. Viewing the matter from this point of view, many are now urging university men to become solicitors rather than barristers, but we must question whether this is a piece of judicious advice, for that branch of the profession is sufficiently stocked. It certainly would. tend to elevate the status of solicitors, but this is being done in other ways. A writer in the Saturday Review, treating of this subject, says: "The graduates of Oxford and Cambridge who are not born to independent fortune distribute themselves, though rather unequally, between the church and the bar. It is only the latter of the two professions which presents the spectacle of the unemployed practitioners enormously outnumbering the employed. The Church of England furnishes occupation and even bread (often very thinly buttered, it is true) to the great majority of clergymen, but the great majority of barristers fail to earn a shilling from their profession. So steady is the operation of the causes which send young men to the bar, and so little have they to do with the supposed attractiveness of professional prizes, that the supply of students of law varies inversely with the work to be done. While the legal business which has to be transacted by barristers has fallen off about one-half since the reforms in common law and equity procedure, we are informed that the entries at the inns of court have pretty nearly doubled: In any other country in the world except England, the state of the legal profession would be a great political danger. The assemblage within narrow local, and still narrower intellectual, limits of so much ability and so much high education, would trouble the sleep of ministers and spoil the enjoyments of despots. But in England the political evils of over-population at Lincoln's-inn and the Temples are not distinguishable from the moral mischief done to individual character. Parties and sects find their most unscrupulous instruments among the "gentlemen of the long robe," because scruples do not flourish in a moral atmosphere vitiated by the crowd which breathes it. The subject is one which has both a ludicrous and a melancholy side. Mr. Briefless and Mr. Dunup, the par nobile of Punch, seem likely to amuse many generations of men; but the actual examples of professional poverty can only be contemplated with a shudder. Some years ago, the trial of two unhappy wretches, man and wife, for

the ill-treatment of a servant girl, let in some rays of light on a domestic establishment in the Temple. The culprits had married on the income of a fourthrate special pleader, and had set up their penates on a top floor in King's Bench-walk, where they had become literally brutalised by anxiety and poverty. When some surprise was expressed outside at such scenes occurring in a profession of gentlemen, it was whispered, we believe, in the inns of court, that the subject was not one to be probed too deeply, nor ought it to be too hastily assumed that the domestic condition of the couple was without a parallel. Probably, however, there are few men foolish enough to marry on the first fifty pounds brought in by drawing demurrrers. The greater part subside into the life of club-celibacy, and prepare in their own way for the practice which probably will never come. The dictum that the law is a jealous mistress has had a remarkable effect on the lawyer of the present day. It is a great mistake to suppose― though very many venerable luminaries of the profession appear to be firmly impressed with the belief that the unemployed barrister is nowadays too little devoted to law. As a matter of fact, devotion to law was never more exclusive; all infidelities are sedulously concealed or deeply repented of; and the consequence is that law destroys the moral stamina and exhausts the intellectual energy of a sensible fraction of each generation as completely and as heartlessly as any lady who ever wore camellias. For the prevailing belief in the jealousy of law produces the notion that it is better to do nothing at all than to do anything which is not legal. The result is that, during the weary interval which precedes the beginnings of success, many men have their faculties paralysed by sheer idleness; and this is very generally the case with the exceedingly common order of mind which requires active practical employment to keep its memory, and even its reasoning powers, to their work. Some there are, no doubt, who steadily accumulate masses of law which they have no opportunity of applying, and out of these are taken the few who succeed without the aid of connection. But it is to be hoped that success really does come at last; for there are few debasements of intellect worse than the seven-devil power of technical pedantry which overtakes the unemployed barrister who has expelled the demon of literary and scientific ambition, and swept all unprofessional knowledge out of the chambers of his mind.

The palliative for this state of things suggested by the Law Review is doubtless small enough; but it is easily practicable, and therefore important. Why should not university men become attorneys

and solicitors? The solicitors of the higher order are men of conspicuous intelligence, honour, and cultivation; the body to which they belong absorbs a much larger part than the bar does of the money paid by the country for legal assistance and advice; and their fitness for employment is guaranteed by a bonâ fide examination, the absence of which is steadily degrading the bar. Their designation as the "lower" branch of the legal profession would be a mere conventionalism, if it were not that there are certain walks of practice which lead an attorney deeper into the dirt than a barrister can easily go. But between the house of Quirk, Gammon, and Snap, and the leading firms of London solicitors, there is in reality no closer connection than between the Governor of the Bank of England and the gentleman who discounts a spendthrift's paper in money, pictures, paving-stones, and Amontilado sherry. That a young man commencing a struggle with the realities of life should consider himself necessarily lowered by becoming a solicitor, would be equally absurd with his looking upon himself as necessarily elevated by eating dinner for his call in the Inner Temple Hall, where his vis-à-vis at table may perhaps be Jim the Penman. Meantime, between the employment of a solicitor and that of a barrister, there is all the difference which there is between a fixed avocation and a lottery. A partnership in a firm of solicitors is a saleable commodity; and the capital and labour which the barrister invests in the purchase of a mere chance will always, if bestowed with tolerable prudence, buy for the solicitor a comfortable present living, and a fair prospect of future affluence. Nor should it be forgotten that, although nothing resembling the great judicial prizes is within the grasp of attorneys and solicitors, the number of lucrative offices appropriated to them has, of late years, been largely augmented. All notion, too, of the duties of the solicitors not being such as graduates of the universities are fitted for, should be absolutely discarded. We don't recommend a university man to join a partnership of Jew attorneys having a general retainer from Mr. William Sykes, or to lay himself out for advocacy in the county courts; but he may fairly hope to be preferred to others as a member of firms of the better and higher sort. The confidential solicitor has, nowadays, taken the place once filled by the priestly confessor. Ile advises in all domestic difficulties. He gets the hope of the family out of money scrapes, and saves the daughters from mesalliances. The best conventional standing is useful to the man who has to discharge these delicate offices; and a solicitor trained at Oxford or Cambridge would have a special advantage in that freemasonry which a common university education

creates between persons who otherwise have their position at very different points of the social scale. We believe it will be found that few men have so little reason to repent their choice of a profession as the graduates of the universities at present on the roll of attorneys; but their number, though not inconsiderable, admits of much augmentation."

Another publication-the Law Review-has spoken out in much the same manner. "The transition from law costs to attorneys is natural and easy; and accordingly Mr. Joshua Williams devotes his second letter to the consideration of the present state and condition of this branch of the legal profession. An university education is recommended as the principal cure for the evils which the public suffer at the hands of unprincipled attorneys. However this may be, we have frequently felt surprise that so few men who have received an university education should resort to what is commonly called the inferior branch of the profession of the law. Why such a continual rush to the already overcrowded ranks of the bar? The prizes to be obtained there are indeed great and glittering; but what a distressing number of blanks! Wherever men of university talent have fairly entered the field, they have, as a general rule, achieved success, The army and navy, from peculiar reasons having reference to age, are, practically speaking, closed against them: and the medical profession, for some cause or other, has never become popular with university men. In the Church, however, they reign supreme; and few at the bar, in the senate, or in diplomacy achieve any great success without having at some one of the universities laid the broad basis of a superior education. The East India civil appointments, also, now recently thrown open, have hitherto been, and will probably continue to be, nearly all obtained by university men. We have refrained, from a proper feeling of modesty, from alluding to the fourth estate of the realm-the press, which may be said to be monopolised by men educated at our universities. Want of capital in some cases, and in others a foolish feeling of prejudice, alone prevents such men from engaging in trade, and becoming numbered among the merchant princes of the land. Why should not, then, our wranglers and class-men enter the lists of the attorneys and solicitors? In order to afford every encouragement to them to do so, the period of articles in their case is reduced from five years to three years. At the end of that time an income of £100 or £150 a year may with certainty be procured without any extra outlay; and, in addition to the ordinary chances of success, should, as is sometimes the case, professional advancement concur with domestic arrangements, a settlement in life may be acquired at a much

earlier period than in any other profession. To enjoy, also, the regard, esteem, and confidence of a large circle of clients, is of itself a reward of no small importance. In the church of St. Dunstan'sin-the-West will be found a monument erected by the clients of a deceased solicitor to his memory, recording, in quaint certainly, but most endearing terms, their testimony of his integrity and kindness in the transaction of their affairs throughout a long professional career. Such a record of private worth is, to our mind, more valuable than many higher objects of human ambition.

COURSES OF LAW STUDIES. (Continued from p. 221).

We have before referred to the unsatisfactory statement in Blackstone's Commentaries as to the distinction between the operation of a fine and a recovery levied or suffered by a tenant in tail having the immediate reversion in himself, and as to the necessity of a recovery of an estate tail being with double voucher (ante, p. 217); as fines and recoveries are abolished, some of our readers may think it unnecessary to notice the subjects, but we conceive that no intelligent lawyer should be without a knowledge of them, sufficient at least to enable him to understand text-books on those branches of the law, and more particularly as abstracts of title are often carried back to the times when fines and recoveries were in vogue. Besides which the old law sheds a light on the new, and explains many things. which are otherwise incomprehensible. OF THE DISTINCTION BETWEEN THE OPERATION

OF A FINE AND THAT OF A RECOVERY, WHERE THE TENANT IN TAIL HAS THE REVERSION, AND THERE ARE NO INTERMEDIATE REMAINDERS.

The uses of fines prior to their abolition were, first, to extinguish dormant titles, which were barred after five years' non-claim by the statutes 18 Ed. 1 and 4 Hen. 7. c. 24. Or, secondly, to bar the issue in tail, under the statutes 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36. Or, thirdly, to pass the estates of femes covert in the inheritance or freehold of lands and tenements. In the last instance, the fine is supposed, by Blackstone, to be binding upon the feme covert because she was privately examined as to her voluntary consent (2 Bl. Com. 352). But, if that were indeed the principal reason, any other mode of conveyance, to which the same form of private examination was superadded, would have been as binding as a fine. It seems, that the fine was binding in such case, “because it was the conclusion of a real action commenced by original writ,”

without which preliminary, a fine would have been a nullity. In the ancient practice, the recovery of the estate of the wife, in a real action, was held to be binding, notwithstanding the coverture. Upon the same principle, the fine was held to be binding, because of the supposed depending of a real action, of which the fine was an amicable composition by agreement; and not because of the form of private examination, which was only a circumstance in the mode of levying the fine, and a merely secondary incident introduced to prevent compulsion. And although fines and recoveries were in later times no more than feigned proceedings, or, as they were usually called, common assurances, yet, in point of bar and conclusion, they were governed by the same principles as if they were really adverse suits (see the note 171, Co. Litt. 121 a.; Litt. s. 670, 672). The 3 & 4 Will. 4, c. 74, makes the separate examination an essential; and hence the case of Bancks v. Ollerton (23 L. J. Ex. 285), where the terms of the act had not been complied with.

The operation of a fine levied by a tenant in tail where he had the reversion in himself, and there were no intermediate remainders, was to bring the reversion into possession; but if he suffered a recovery in the like case, it operated to defeat the reversion. As for example: B. was tenant in tail by descent, with reversion to himself in fee, of certain lands, of which A. (his ancestor) had granted leases with covenants for further renewal. Now, in the first place, although the tenant in tail was empowered under the enabling statute (32 Hen. 8, c. 28, since repealed as to tenants in tail, 3 Law Chron. 110) to grant leases for twenty-one years, or three lives, pursuant to the directions of the statute, he had plainly no power, either by the statute or by the common law, to bind the issue in tail to a further renewal, and, consequently, whatever covenants A. might have made to that effect, they could not be binding upon the heir in respect of the estate tail. The reason is, that the heir in tail, although he comes to the estate tail by descent, yet takes as a purchaser, "per formam doni," and, consequently, is not chargeable, except by statutory provision with the incumbrances of his ancestor, as when he takes by descent at the common law. Secondly, with respect to the reversion in fee, which also descended at the same time from A. to B., this was "hæreditas infructuosa," as long as the estate tail subsisted; and although the covenants of the ancestor are said to descend as an onus upon the heir, whether he inherits any estate or not, yet they lie dormant, and are not compulsory until he has assets by descent from or through that same ancestor. But a reversion, or a remainder expectant upon an estate tail, was not assets, because it was