14 Recent Decisions in the Courts of Equity. the admission of the defendant, or by evidence, a clear legal title to some land in the possession of the defendant, and also a ground for equitable relief : and where the quantity of the land of the plaintiff in the possession of the defendant is doubtful upon the evidence, the court will direct a commission, or an issue, as will best answer the justice of the case. The Master of the Rolls. It appears by the authorities which have been referred to, that to sustain a bill of this nature, it is necessary that the plaintiff establish a clear title to some land in the possession of the defendant; and, according to the case in Bumbury, (Bunb. 522,) the court will not direct an issue to try the title, if it be left in doubt upon the evidence in the cause. It has been argued, that the title of the plaintiff must appear from the admissions of the defendant, and that it is enough that it is established to the satisfaction of the court by the evidence in the cause. That proposition is not countenanced either by authority or by principle, and is manifestly untenable; for, if such were the rule, there never could be a decree for the plaintiff in a suit of this nature, as no defendant would admit the plaintiff's title. In this case I am of opinion, that the plaintiff has established by evidence a clear title to some land in the possession of the defendant. According to the doctrine of Lord Northington, in Wake v. Conyers, (1 Eden's ca. temp. Lord North, 331,) and of Sir William Grant, in Speer v. Crawter, (2 Mer. 410,) the plaintiff must also make out that he has some equitable ground upon which to call for the assistance of this court, and he will otherwise be left to seek his remedy at law. The confusion of boundaries by the defendant, or those under whom he claims, is an equitable ground. Here the boundaries are certainly confounded; the confusion must have been intended to have been the act of those who for centuries have been in possession of the land. It is in evidence, that the hedge, which now separates the land on the left side from the Chase-way, has been made within the last sixty years, and there is now no boundary to distinguish the particular parts of the land on the left of the Chase-way, to which the plaintiff and defendant may respectively be entitled. When the court is satisfied with the plaintiff's title, and that he has equitable ground for the assistance of this court, the authorities will justify the court in affording relief, either by a commission or by an issue, as will best advance the justice of the particular case: and as an issue might not finally settle the question between the parties, I am of opinion that the proper proceeding will here be, to direct a commission to inquire and ascertain, what part of the lands in the possession of the defendant on the left side of the Chase-way is the property of Queen's College, and to set out the same, with the usual directions in that behalf. EXECUTOR-AGENT-SETTLED ACCOUNT-ANSWERS. Davis v. Spurling.-1 Russell and Mylne, 64. An executor, who is employed by his co-executor as his agent to sell an estate, which, under the will of the testator, the co-executor alone had power to sell, and who hands over the price of his estate to his co-executor, is not accountable for the misapplication of that price by the co-executor, because he had no legal right to retain it, although, by the will of the testator, the price of the estate, when sold, was to be considered as part of his personal estate. If an error in a settled account is discovered and Harrison v. Harrison.-1 Russell and Mylne, 71. Where a testator who has given his personal estate to charitable uses contracts to sell real estate, but the sale is not completed in his life-time, his lien upon the estate for the amount of the purchase money is an interest in land within the statute of mortmain, and the purchase money will not pass by his will to a charity. A testator bequeathed the two sons and the daughter of A. B. 501. each;" at the date of the will, and the death of the testator, A. B. had one son and four daughters, each of these five children is entitled to a legacy of 501. PIRACY OF COPYRIGHT INJUNCTION. to Bailey v. Taylor.—1 Russell and Mylne, 73. A plaintiff who complains of a piracy of his work has no remedy in equity unless he establish a title to an injunction, and then the account will follow. The court will not grant an injunction, but will leave the plaintiff to seek his legal remedy, where the matter which is the subject of the alleged piracy, forms but a very inconsiderable part of the plaintiff's work, and merely contains calculations, and when the work complained of has been published some years. The Master of the Rolls observed, "I agree, that, although the plaintiff failed upon the answer of the defendant to obtain an injunction, he is at liberty to claim it at the hearing. The question then is, whether the court ought to grant an injunction as the case now appears? Considering the very inconsiderable part of the defendant's work which is complained of, and that this may be calculated in a few hours, so as to give the defendant an unquestionable right to its republication; and considering the difficulty which would be imposed on the Master, if an account were directed of ascertaining what part of the defendant's profits ought to be attributed to the plaintiff's tables; and considering also the distance of time at which the injunction is now sought, being nine years after the publication of the defendant's second edition, I am bound to refuse the injunction, and to leave the plaintiff to seek his remedy at law; and the injunction being refused, there can be no account. bill must therefore be dismissed, with costs." The Fellowes v. Lord Gwydyr and Page-1 Russell and Mylne, 83.-See 1 Sim. 63, S.C. It is no defence to a bill for specific performance by the vendor, (Fellowes,) that during the treaty Miscellanea. he falsely assumed the character of agent for another, (Lord Gwydyr,) when, in fact, he was dealing on his own behalf, and that he thereby deceived the purchaser, (Page,) as to the party with whom the contract was made, provided the purchaser does not show that the deception induced him to enter into the contract, or occasioned any loss or inconvenience to him otherwise. The judgment of the lord chancellor was as follows: "Mr. Page, I am satis. fied, had every reason to believe he was contracting with Lord Gwydyr, but the only question here is, what loss or inconvenience has he sustained in consequence of acting under that mistake? There is nothing in the cause that can lead me to suppose that he would not have contracted with the plaintiff, 15 practice, and dismissed the application, but gave directions to the Registrar to draw up a general order, to prevent a similar occurrence in future; and, although he dismissed the application, yet, as it had been the means of reforming the practice of the court, which required alteration in this respect, he refused to give the defendant the costs of it. MISCELLANEA. A MODEST LAWYER. LORD KEEPER GUILFORD'S Composition of temper was extraordinary, for he had wit, learning, and elocution, and knew it, and was not sensible of any or that he would have declined to offer the sum of notable failings whereof to accuse himself; and yet was modest, even to weakness. I believe a more 1,500 guineas, had he been aware of the party who shamefaced creature than he was, never came was really the owner of that property. It was into the world: he could scarce bear the being strongly pressed upon me in the argument, that the parties should be left to proceed at law. But from seen in any public places. I have heard him say, the situation in which they respectively stood, as that, when he was a student, and ate in the Templewell as from the form of the agreement, they could hall, if he saw any company there, he could not not have obtained an effectual adjudication upon walk in till other company came, behind whom, as their rights at law, and it was necessary for the he entered, he might be shaded from the view of the plaintiff, therefore, to come into this court. Mr. rest; and he used to stand dodging at the screen Fellowes says, that the name of Lord Gwydyr was till such opportunity arrived, for it was death to not used for any improper purpose; but even if it him to walk up alone in open view. This native were otherwise, that circumstance alone would fur- modesty was a good guard against vice, which is not nish no reason why Mr. Page should be released desperately pursued by young men without a sort from his contract, without showing that the decep-fore, ladies and other fond people are greatly of boldness and effrontery in their natures. Theretion has in some way operated to his prejudice. Decree confirmed, without costs. Mr. Jacob, on the part of the plaintiff, now moved the court that it might be referred back to the master, to review his taxation, and reduce the above charges to such sum as the decree would have amounted to, if the recital of the pleadings had been omitted. In support of the application he cited the 33d rule of the court, from Fowler, p. 164, by which it is stated "that every decree and order is to he drawn up as short as with conveniency can be, without reciting the former orders and proceedings at large." And he contended, that as nothing more was to be done under the order, than simply to tax and enforce payment of the defendant's costs, there was no necessity whatever to have recited any of the pleadings, which were very long, in consequence of the bill having been amended several times, by reason of disclosures made by the defendant's answers, and separate answers having been put in on the occasion of each amendment, which were recited verbatim in the order, and that it was not the practice in the court of chancery, on a mere order of dismissal, to recite the pleadings, and that a similar order in that court would cost only 15s. whereas it here amounted to the enormous sum of £24 13 0. Mr. Jervis, on the part of the defendant, relied on the practice of the court of Exchequer, being to recite the pleadings at length. The Lord Chief Baron said he felt bound by the mistaken, when they desire that boys should have the garb of men, and usurp assurance in the province of shamefacedness. Bashfulness in the one hath the effect of judgment in the other: and where judgment, as in youth, is commonly wanted, if there be not modesty, what guard has poor nature against the incentives of vice? Therefore it is an happy disposition; for when bashfulness wears off, judgment comes on; and by judgment, I mean a real experience of things that enables a man to choose for himself, and, in so doing, to determine wisely.— North's Life of Lord Guilford, Vol. I. pp. 46, 47. THE LAWYER WITNESS. A bold and zealous defender of prisoners belonging to the home circuit, had, in a late trial at Chelinsford, several times told a witness, whose character was not too high, that he must state nothing which did not pass in the presence of the prisoner. At length, the time for cross-examination arrived. The learned gentleman began by asking: "Pray how often have you been transported?"Nay," answered the witness, "I must not tell you that, for it was not in the presence of the prisoner." VULGAR ERRORS. That leases are made for 999 years, because a lease for 1000 years would create a freehold. That deeds executed on a Sunday are void. That in order to disinherit an heir-at-law, it is necessary to give him a shilling by the will, for that otherwise he would be entitled to the whole property That a funeral passing over any place makes it a public highway. That the body of a debtor may be taken in execution after his death. That a man marrying a woman who is in debt, if he take her from the hands of the priest clothed only in her shift, will not be liable for her engagements. That those who are born at sea belong to Stepney parish. That second cousins may not marry, though first cousins may. That a husband has the power of divorcing his wife by selling her in open market with a halter round her neck. That a woman's marrying a man under the gallows will save him from execution. That if a criminal has been hung and revives, he cannot afterwards be executed. That the owners of asses are obliged to crop their ears, lest the length of them should frighten the horses.-Barrington's Observations on Ancient Statutes (1775) p. 474-5, Note.-Retrospective Review, Vol. 9, p. 262-3. THE DOCTOR AND LAWYER. The late Doctor Brodum, of nostrum celebrity, was once a witness in a case at Exeter. Atter he had gone through his examinations in chief, in which he had displayed something of the marvellous, the late Abram Moore commenced the cross examination thus:-"Your name is Brodum?" to which the doctor having nodded assent, the barrister proceeded-" Pray how do you spell it, Bro-dum, or Broad-hum?" at which there was, of course, a loud laugh, but louder still when the doctor very coolly gave the following answer: Vy sare, as I be but a doctor, I spells my name Bro-dum; but if I vas a barrister, I should spell it Broad-hum." ANCIENT LEGAL POLICE. About St. Clement's church, and in the parts adjacent, were frequent disturbances by reason of the unthrifts of the Inns of Chancery, who were so unruly on nights, walking about to the disturbance and danger of such as passed along the streets, that the inhabitants were fain to keep watches. year 1582, the recorder himself, with six more of In the the honest inhabitants, stood by St Clement's church: to see the lanthorn hung out, and to observe if he could meet with any of these outrageous dealers. About seven at night they saw young Mr. Robert Cecil, the lord treasurer's son, who was afterwards secretary of state to the queen, pass by the church, and as he passed gave them a civil salute: at which they said, "Lo! you may see how a nobleman's son can use himself, and how he putteth off his cap to poor men our Lord bless him." This passage the recorder wrote in a letter to his father, adding, "Your lordship hath cause to thank God for so virtuous a child.”—Strype. THE SOLICITORS OF ANCIENT ROME. In Cicero's oration upon the question of conducting the prosecution of Verres, reference is made to the expert and eloquent solicitors ["subscriptoribus exercitatis et disertis,"] who it was presumed would | support Cæcilius. The solicitors alluded to by the it is evident that a class of lawyers similar to the great orator are not treated very respectfully; but solicitors of our courts, were in the habit of assist ing the principal pleaders, and addressing the tribunals. Cicero characterizes the first solicitor as a man of describes as concerned only in petty trials, though years, but a novice in the forum. Another he well exercised in clamour: and others he assumes will be taken from the common herd of retainers. sustained by Allienus (the clamourous solicitor); yet The weight of the prosecution, he considers, will be he maintains that Allienus will not exert his utmost power in pleading, but restrain his eloquence that Cacilius may be enabled to shine. assist the accuser ATTORNIES AT LAW IN THE SIXTEENTH CENTURY. learned, yea, and also verie necessarie for the pracAttornies at common law, men verie honest and tice of the common lawes of this realme, and finishing of other civill businesses; insomuch that by no yet such is the unthankfulness of this age, that even means their labour and services may want. And when they have served their turns, so that they see their owne clients(of whom they have best deserued) no present occasion to use them any longer, for the fault of some few will uneth afford the best of them is worse, they will generally slander and condemne one good word for many good deeds. Nay, which them as covetous persons and disturbers of the comsuites. Where, in verie truth, the most part of the mon peace and quietnesse of all men by unnecessarie said attornies being very peaceable, do oftentymes dissuade their clyents from the same, so much as they can, by means whereof they greatly offend suspect them of affection towardes the adverse their minds, insomuch they will for that onely cause parties, and threaten earnestly that if they will not intermeddle therewith others shall.-West's Symbolangraphy, sec. 352, [1590]. TO CORRESPONDENTS. Since the circulation of our Prospectus, we have received many Communications, no small number of hints and suggestions, with numerous offers of legal and literary assistance; some of them specific enough, but not acceptable; and others too vague to permit us to judge of their value. We may observe, that our Work, in its general features, was arranged on mature deliberation; and many eminent members of the profession, who felt and suggested its utility, have decidedly approved the plan on which it will be conducted. Our friends will observe, that in this the commencement of our campaign, we have not been able to draw out more than a division of our forces. We have merely established a sort of advanced post. Our light troops are on the alert, our pioneers are industrious, and the main body is moving on to overcome any remaining difficulties. We have noticed elsewhere the nature of many of our forthcoming Articles, and we shall be glad to receive from our young contributor the "First Year's History of his Clerkship," His effusion displays a laudable love of learning, and considerable powers of fancy. We are compelled to decline the insertion of a most apt and witty article on certain Dignitaries, fo whom we entertain great personal respect. We think the parties themselves would rather b amused than offended by it; but "weaker brethren" might feel differently, and we therefor reluctantly return it. VOL. I. The Legal Observer. SATURDAY, NOVEMBER 13, 1830. No. II. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. "We have entered into a Work touching Laws, in a middle term, between the speculative and reverend discourses of Philosophers, and the writings of Lawyers." BACON. ON THE STUDY AND PRACTICE In a Letter addressed to a Gentleman intended for [FROM A CORRESPONDENT.] BEFORE I proceed to point out the course of study which I advise you to pursue, and the elementary works which I recommend you to consult, I consider it useful to commence with some preliminary instruction regarding your general conduct in the transaction of business; the best means of obtaining a practical knowledge of the routine of professional duty, and the details which will enable you to combine the skill of a man of business with the learning of a lawyer. You will do well to avail yourself of all leisure hours to understand and make yourself master, as soon as possible, of those elementary books to which your attention will be directed. When tolerably well understood, they will enable you to comprehend the details of business in the office, and elsewhere, with much greater facility than the mere routine of such details alone could otherwise afford. But though elementary knowledge and elementary books are absolutely essential in the commencement of your studies, you must never forget that it is detail, and detail alone, that must ultimately be the business of your life, the source of your professional gains and professional honours; and that even elementary knowledge is by far the most valuable, the best understood, and the most lasting on the memory, when it is acquired through the medium of detail. In this office you may see a certain routine of business, which, after you have left it for the Bar, you will have no further opportunity of observing. During the period that you are here, therefore, consider the detail, the practice, and the routine, that are passing before your eyes, as the primary objects; and do not esteem any thing as too insignificant for your attention. Having observed it, endeavour, by research, and by inquiry and conversation, to trace its meaning, its history, and use, in all the ways that occur to you. You will often find those who know the routine without the least apprehension of its NO. I, principles; but it should be your anxiety never to rest satisfied with such a state of information. will be of the very essence of your profesYou will find, hereafter, that it sion to pass beyond the surface into the elements and foundation of these uninteresting minutiæ. To pursue the same observation: whenever an instance of business occurs in the office which engages your attention, or becomes a part of your duty, do not be satisfied with the particular part which you are to transact,-trace it from the beginning, unravel its complexities, pursue it watchfully to its termination, endeavour to throw an interest around it, and, as much as you can, to make it your own. You may often, in this way, succeed in suggesting something material, that others have not observed; you may prevent mistakes, and guide the affair to a more useful or more advantageous conclusion. Your own experience is, in the mean time, growing with your labours: not to mention in how high a degree your zeal and industry may be cultivated by habit, and how firm and how warm it makes those friends on whose behalf they are exerted. Let it be therefore your first care always to master the principles of that which immediately engages your exertions; next to this, pass two or three hours daily in reading the elementary books which I shall hereafter recommend. There are various others to be afterwards read, but those I refer to will suffice for the present. Do not be alarmed at their number. Three hours a day, for a year, would make you thorough master of them all, without trenching upon more active labours; and a man who would devote that time steadily to reading in his profession, would become, in seven years, one of the first lawyers in the kingdom. I add but a word more on your ulterior pursuits. When you have acquired as much as will be useful to you here, you will find the same observation applicable, in another shape, to your subsequent studies. You will go to a Pleader's office; when there, attend, as the first object, to the details of that office; collect, from the business of the office, and, at your leisure, from books, the precedents and forms of pleading; and not merely collect, but observe and understand them, with all the C 18 On the Study and Practice of the Law. tions, and you will be materially assisted by reading the third volume of Blackstone; Boote's Suit at Law; Stephen on Pleading; Tidd's Practice; and Chitty's Pleadings. You will do right, if, in term time, you go through the different offices, and make yourself well acquainted with the business transacted at each, take as much responsibility upon yourself as you are able, and copy all forins, adverting particularly to the number of days necessary to be observed in the different proceedings, on which the practice wholly de attention of which you are master. Disen- 4. Observe the TRIALS of causes, study the rules of evidence, and the minor points necessary to be attended to in preparing for trial. This you will obtain by attending to causes as they proceed,-by a close consideration of the pleadings, and of the precise facts, and the exact evidence necessary to be, and which can be adduced, and of the notices proper to be given; and, by reading Peake's, Phil lips's, and Starkie's, Evidence, the Nisi Prius Reports, and Selwyn's Law of Nisi Prius. The different text books will materially help you, viz. Bailey or Chitty on Bills of Exchange, Ross's Law of Vendors, Long's Law of Per The reading of Cases, and search after them, will be the ultimate stage of your professional studies. This, again, is but the detail of that study which you will never relinquish while in the profession. The sooner you are in a situation to give up elementary reading, and devote yourself to these details and practical researches, the better. Lastly, remember that yours is a profession of incessant competition. Your competitors are daily and nightly at their labours in the closet; and it may be stated, as a proposition true, as a general one, that professional diligence, and professional honour and profit are correspond-sonal Property, Abbott on Shipping, Paley's ing and co-equal. I now proceed to enumerate the several departments of study and practice, which it will be your duty to pursue, in order to obtain a thorough knowledge of your profession. Principal and Agent, Lawes on Charterparties, Montagu and Whittaker on Lien, Caldwell on Arbitrations, Montagu and Gow on Partnership, Parke or Hughes on Insurance, Holt's or George's Law of Libel, Fell on Guarantees, and Adams on Ejectment. 1. DEEDS AND AGREEMENTS, noticing their 5. Obtain a knowledge of BANKRUPTCY. This forms, and particularly the forms of cove- will be acquired by actual business, and by nants and agreements, and of the mode of seeing the proceedings which are kept under deducing titles to estates. You will have an all commissions, and by reading and digesting opportunity of seeing deeds, agreements, and all the bankrupt statutes and general orders abstracts; and while directing your attention in bankruptcy. You will also peruse Cooke's, to this subject, you should read and digest the Eden's, Montagu's, Christian's, Cullen's, or second volume of Blackstone; Watkins's Prin- Whitmarsh's, Bankrupt Laws. The examinaciples of Conveyancing; Watkins or Scrivention of bankrupts and witnesses before commison Copyholds; Littleton's Tenures; Preston sioners, forms a material part of business in on Estates and Abstracts; Sugden's Law of bankruptcy, and deserves particular attenVendors and Purchasers; Coke upon Little- tion. ton; Sanders on Uses; Shepherd's Touchstone; Burton's Compendium; and Platt on Covenants. The references in these and the other books, after mentioned, should be consulted. 2. SUITS IN CHANCERY, the forms of pleadings, and the jurisdiction and practice of that court, will next deserve your attention, particularly as regarding Injunctions, which connect themselves with Actions at Law. You will also have an opportunity of seeing bills, answers, and proceedings in Chancery; and while directing your attention to this point, you should read Milford's, Cooper's, or Lube's Pleadings; Van Heythuson's Forms, a Synopsis of the Practice of the Court; and Maddock's Principles of Equity. 3. Acquire correct knowledge regarding ACTIONS AT LAW, and their different sorts, the inodes of prosecuting and defending them, and particularly of the pleadings and the practice of the courts of King's Bench, Cominon Pleas, and Exchequer. You will also have an opportuinty of seeing proceedings in ac 6. Acquire a general knowledge of the law relating to EXECUTORS AND ADMINISTRATORS. This will connect itself more or less with the foregoing. Toller's Law of Executors and Administrators, and Preston on Legacies, should be well digested. 7. Acquire a thorough knowledge of merchants' accounts, and of the habits, manner, and forms, of business in general, not only in, but out of the profession, and of every subject connected with the LAW OF MERCHANTS. Beawes Lex Mercatoria, by Chitty, you will find much useful information. In 8. The practice of SESSIONS is very necessary to be attained, and this you will find in the fourth volume of Blackstone, Nolan's Poor Laws, and Chitty's Criminal Law. Of this practice I profess no particular knowledge, and therefore am unable to promise you any insight into it in our office. 9. The practice in ELECTION CASES it is also desirable you should be acquainted with, and this you will find in Mr. Roe's or Mr. |