tended, that as Mr. White was alive, and had duly authorised another to act in his stead, the corporation had no right to deprive him of his office. The summons, too, was irregular; and they had not given due notice of the day on which they would appoint another clerk.

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LEX DOMICILII.

ON an appeal from the Prerogative Court in a suit respecting two codicils to the will of Mr. John Stanley. This gentleman was a British subject by origin, and died at Madeira in 1826, after taking out letters of naturalisation in Portugal, marrying a Portuguese subject, and renouncing the protestant religion. His will and two codicils were made according to the forms of the law of Portugal; the two codicils in question were not made according to the form of that law, but to that of the English law. They were consequently void by the law of Portugal. The codicils, which made provision for a natural son, Josè Maria Bernes, and his issue, resident at Madeira, out of personal property in the English funds, were disputed by the only legitimate son of the testator, Mr. John Stanley jun., born a Portuguese subject, and resident in Portugal. The question was, first, whether the testator was a domiciled subject of Portugal at the time of his death; and, secondly, supposing him to have been so, whether the lex domicilii should be applied to the two codicils in question, so as to defeat the declared and express intentions of the testator, who had forbidden his legitimate son to dispute their validity.

After a very elaborate argument in the court below in Hilary term, 1830, Sir J. Nicholl decided in favor of the codicils. From this decision Mr. Stanley appealed.

Their Lordships, after a full argument, pronounced their judgment against the validity of the two codicils in question.

Thus the lex domicilii is ruled to apply not only in cases of intestacy, but to a testamentary paper executed by a natural born British subject domiciled abroad, disposing of personal property in England. The common law judges in the commission were, Mr. J. James Parke, Mr. J. Bosanquet, and Mr. Baron Bolland. Stanley v. Bernes, H. T. 1831. High Court of Delegates.

COURT OF PECULIARS.

DIVORCE.

In a suit promoted by Ann Hewit against John Hewit, her husband, for a divorce, on the No one

ground of adultery and cruelty,

Dr. Adams appeared for the wife. appeared for the husband.

Sir John Nicholl pronounced sentence. The husband in this case had been a widower with one daughter, and the parties were married in November 1824, at St. Andrew's, Holborn. They cohabited, first in lodgings in Hatton Garden, and afterwards removed to Mr. Hewit's house, Crofton Hall, Kent. They had issue, twins, a son and a daughter, who were born at Boulogne, in August, 1825. After the birth of the children, there had been no subsequent cohabitation between the parties. Acts of ill treatment on the part of the husband, at Hatton Garden, such as ordering the servants not to obey his wife; forcing her into her bedroom and locking her up there; compelling her to sleep separate in a garret, then in the drawing room, and finally, in the kitchen. After their removal to the country, the same treatment continued, and was aggravated by its taking place while the wife was in a state of pregnancy. Towards the end of July, 1825, he removed her to France, not allowing her to take clothes for the expected birth of a child; and, on arriving at Boulogne, he went first to one hotel and then to another, where he hired a bedroom for his wife in the garret, at the same time abusing her. The next day labour came on; but he provided no assistance for her: She was indebted to the humanity of others for assistance, and was delivered of twins. The husband stayed at Boulogne that day; but, the next morning, he abandoned his wife, leaving her without clothes or money. She remained at the hotel six weeks, supported by the kindness and humanity of the British consul at Boulogne. Mrs. Hewit wrote to her brother-in-law, and he came over and brought her to England, after paying all the debts she had contracted at Boulogne. It was with great difficulty, and then only by arresting the husband, that he could obtain repayment. The brother-in-law, under a misapprehension that the wife could not apply to this court unless she paid the costs, recommended a deed of separation, under which the wife was allowed 101 the first year, and a smaller sum annually afterwards. This deed, however, was no bar to the suit in this court; and accordingly, proceedings were commenced against the husband. There was a difficulty in getting the process served on him. At length, in November, 1827, he was served with the process of the court. The charge of adultery, it had been admitted, was

some

not sufficiently proved; but there was quite sufficient proof of sævitia on the part of the husband to entitle the wife to a separation. There was extreme cruelty at Boulogne thing even more than brutal in leaving his wife in such a situation. The wife was therefore entitled to the separation prayed.

On the question of permanent alimony, on the part of the wife it was alleged that Mr. Hewit was in the receipt of 1,500l. or 2,000l. a year. On the part of Mr. Hewit, his income was alleged to be 200l. a year.

The court allotted 120l. a year permanent alimony. Hewit v. Hewit. Court of Peculiars.

ESSEX SPRING ASSIZES.

[We commence, in this Number, a series of nisi prius cases, on the Home Circuit, which will be the more acceptable from the circumstance that there are, at present, no authentic reports of the cases there decided.]

Before Mr. Baron Garrow.

PROMISSORY NOTE. -STATUTE OF LIMITATION.

Fenton v. White and Pryke.

This was an action to recover the sum of 2001. and interest, due upon a promisory note given by the two defendants on the 25th May, 1814. White pleaded the statute of limitations, and Pryke suffered judgment to go by default. In 1814, Mr. Fenton, a tailor at Colchester, entered into partnership with Pryke, and they esta blished another business at Coggeshall. It was agreed that Pryke should bring in 2007.; as he was not able to do that, his relation, Mr. White, joined in giving the note in question. The Common Serjeant referred to Lord Tenterden's act 9 G. 4. c. by which it is enacted, that no verbal promise should be binding to take any case out of the statute of limitations, but there is a proviso that that act shall not affect any party where interest is proved to been paid. In this case payments of interest, and a small part of the principal, were indorsed to have been made in 1823 and 1825, and those indorsements were signed by Pryke, and he contended, that upon the case of Whitcomb v. Whiting, Doug. 651., if one of two promisers pays interest, it will revive the note as to the other, although he is not aware of the circumstance.

333

This was an action by ejectment, to prove what is sufficient to establish the right of the lords of the manor of Bures, otherwise Bowers Gifford, to the slips of waste by the side of the road adjoining freehold lands.

The lessors of the plaintiff deduced the title of the manor from the time when Doomsdaybook was compiled to the present time. Some short time back the manor and advowson were separated from the manor-farm. The manor has no copyholds belonging to it, but it had freeholds sufficient to keep it in existence, and through that circumstance courts were omitted to be held previous to the year 1800, when Mr. Curtis became the owner.

The deeds relative to the manor were in the possession of the defendant, and the plaintiff wished to prove the conveyance of the property from the original purchaser, who had covenanted for the production of the deeds, to the defendant; and in so doing, attempted to give in evidence the draft of a deed, but Mr. Baron Garrow would not admit it; for, as soon as deeds became evidence they must be stamped, and no draft could be permitted to refresh the memory of a witness, thereby enabling him to give parol evidence of its contents. Notice was served upon the defendant's attorney after the opening of the commission, to produce a deed, which he consented to do upon being paid the expenses of sending to London for it. Mr. Thessiger for the defendant contended, that he was not bound to produce the deed, inasmuch as sufficient evidence had not been given, and the attorney had not agreed to pay the expenses. This objection the Court overruled, and stated, that although it was now in contemplation to enact that all notices must be given before the commission was opened, yet, until such was the case, he must abide by the present decisions, and there had been sufficient time; as to the expense, the party who is compelled to produce the evidence must bear it. [The commission was opened on Monday, and the trial was on Thursday.] In tracing the title, the court presumed, that a person who devised the premises was the survivor of three persons to whom the estate was limited in 1785.

The facts relied upon by the lessors of the plaintiff were, 1st, When Mr. Andrews, through whom Mr. Spitty derived his title to the land for which he claimed the waste, purchased it, Mr. Curtis objected to the waste being included in the particulars of sale, and the quantity of land was therefore reduced sixpence, being that part uninclosed.

2d, Two letters from the father of the defendant (who had enclosed a part of the land in dispute) admitting that he had made an en

croachment, and offering either to pay some quitrent or throw down the banks.

3d, Several leases for lives from Mr. Curtis of the waste; the first beginning in 1800.

4th, Quitrents paid by Mr. Spitty (the father) and others, for land so leased or allowed upon

sufferance.

5th, (But this was not admitted). The courtbook, in which Mr. Spitty is stated to have been one of the homage. The reason of its not being put in evidence was, that the learned judge observed that the minutes signed by him, or a person who saw him act as such, were the only methods of proving the fact.

6th, Enclosures made by persons who had no estate behind, and which might have been made with the consent of the then lady of the manor; and one instance where her consent was given either as such lady or proprietor of the adjacent lands.

Those relied upon by the defendant were, 1st, The presumption of law, that where small slips of land adjoin freehold land they belong to the owners of the adjacent lands, and not to the lord of the manor. Steel v. Prickett, 2 Stark.

463.

Doe v. Pearsey, 7 B. & C.504. 24, No custom enabling Mr. Curtis to grant leases.

3d, No proof by perambulation that the manor was coextensive with the parish.

4th, Repeated instances of the waste being used by the owners of the fields for putting their manure on, and for turning their cattle on.

5th, The cutting of bushes and trees by the owners of the adjacent lands.

The learned judge in summing up stated, that prima facie all slips of waste did belong to the enclosed lands, but that was only a presumption; and it was for the jury to say whether the contrary had not been proved.

They found for the plaintiff. Damages 1s. Mr. Gurney and Mr. Platt for the plaintiff. Mr. Thesiger and Mr. Sheere for the defendant.

LIABILITY OF SHERIFF.

Digby v. Cure, Esq.

This was an action against the late sheriffs of this county, for wasting the goods of the plaintiff. On the 8th April last a fi. fa., issued at the suit of James Digby against the plaintiff, and was delivered to the sheriff. He sent his warrant to his officer, Smith, who entered and kept possession until 7th July last. The sheriff was connected with Smith by the evidence of the latter. On the 28th April the sheriff returned that the goods remained in his hands for the want of buyers. After that there was no writ of venditioni exponas, but Smith sold the property. The Common Serjeant contended, that after the return was made, the sheriff was functus officii, and that, as no new authority was given to him, or consequently from him, to Smith, the latter must have acted as agent for the plaintiff, he being an auctioneer as well as a sheriff's officer. Mr. Gurney replied, that he had an action in trover against the sheriff; and that the sheriff having once had possession, he could have been turned out.

Garrow B.,-after stating the circumstances of

the case-sheriffs, so far as they employ others are answerable; but they cannot be so for every act of their agents. After they have entered, it is their duty to sell the things, in order that they may make a return to the writ. If Smith had entered, and had not given proper notice, or had squandered the property, the sheriff would have been answerable. Here an execution issues, and under which Smith enters, and the plaintiff wishes a person to continue in possession, although the sheriff has made a return to the writ. Another writ should have issued, commanding the sheriff to sell immediately; but from the 23th April to 7th July Smith continues in possession, sells things by retail, and finally by auction. It would be preposterous to charge the sheriff after his officer has changed his character, and become an auctioneer. I shall therefore nonsuit the plaintiff.

1829.

Pattisson v. Pearce, Esq.

An action against the sheriff of this county for The plaintiff demised a farm in St. Lawrence, in 1824, to Richard Hunt, at a corn rent. On August 8. 1829, a fi. fa. issued at the suit of

Wayman against Hunt, under which the sheriff entered, and kept possession till October, 1830. This action was to obtain the rent accruing from Lady Day, 1829, to Lady Day, 1830. being left upon the premises to satisfy the plainbeing upon the averages 2941. 2s. 9d., sufficient tiff for that due at Michaelmas last. A copy of the writ and return was produced. The return was made by the succeeding sheriff, and was "for the want of buyers." The town agent of the under sheriff proved that it was the practice to endorse the name of the officer on the writ, and the day when the warrant was delivered. Smith (the officer), had admitted that he had the warrant, and proof was given that he entered, and conducted the farm, and sold the produce. Gurney-I propose to read the endorsement as connecting the sheriff with Smith. The Common Serjeant I object. The writ and the warrant are in your power; you have subpoenaed Smith to produce the latter. The copy of a writ is not the best evidence. You have only an examined copy of an endorsement by a sheriff, and a return by a succeeding sheriff, and this is to avoid calling the best evidence. Gurney-I have sufficiently connected them. I prove his own admission. In Fermor v. Phillips and Francis v. Neave, 3 Br. & Bing. 26., it is decided that the endorsement is evidence, and I prove the endorsement. Serjeant Stephen-We only want to connect Smith. This is good evidence of Smith's being employed. We are as well provided as if we produced the writ, it being the practice to put endorsements. We produce an examined copy of a record. It is quite immaterial what sheriff made the return, and it is sufficient if a return is made. The bailiff's name on the writ is sufficient without the warrant. Knox - We are not bound to call Smith. In Mr. Phillipps' book on Evidence, it is stated, that it is not proper to call the bailiff, if it can be shown by the sheriff or under sheriff that he was employed; and see Hill v. Lea, 7 Taunt. 8.

Garrow B., after adverting to Digby v. Cure,

in which he did not recollect the cases now referred to, or he should have admitted the endorsement in that case, said I have often seen the name of the officer on the stamp. It is more satisfactory that the writ should be produced than a copy; but, according to the copy, the word Smith is on the writ, which means that Smith was the officer who was employed. It seems that the evidence of a copy of a writ is received. Mr. Phillipps, in his very excellent work, refers to several cases in vol. ii. p. 378. There has been much contradiction of authorities as to the evidence of the name being endorsed, but it is clear that if the name is so endorsed by the sheriff or his agents, it is sufficient for the bailiff, and that the warrant is evidence without producing the writ. I shall admit the evidence, but reserve the point, that a nonsuit may be moved for.

The defendant ultimately agreed that a verdict should be entered against him.

MINOR CORRESPONDENCE.

It was stated in the course of the meeting of creditors of Messrs. Chambers, held on the 2d of March, and which, from the very respectable quarter it came may be relied on, that creditors of the bankrupts whose debts amount to at least 50,000l., have neither proved their debts or taken proceedings respecting them; and that it is much relied on by Mr. Chambers, sen. that in the event of such creditors not proving their debts before November next (which he calculates will be the case with the major part of them), they will be barred by the statute of limitations from enforcing their claims, the commission having issued in November, 1825. Whether this is the case or not, the subject is worthy the attention of solicitors who have clients circumstanced as above noticed.

SIR,

ANSWER TO QUERIES.

With respect to the answer of C. P. F. to the query inserted in No. xviii. Page 256 of this work. I think he must be mistaken, and that the case he cites does not at all bear on the point referred to, which is, "whether a house rented as a workshop, is liable to parochial rates, the person occupying it living in another parish," he says, that in a case recently tried, it was decided that a granary is not liable to parochial rates, and for which reason he concludes, a workshop would be exempt. Now, I can bring forward two cases equally as strong, if not stronger, as they are more decided to the point in question, one of which is King v. Hogg, 1 Durnf. & East, 721. in which it was held, "that a house and engine for carding cotton, which was rented as one entire subject, and described under the general name of an engine house, were rateable to the parochial rates;" and the other case is King v. St. Nicholas, Gloucester, 1 Durnf. & East, 723. note in which it was held, that a machine house for weighing waggons was rateable to the parochial rates, there being an emolument derived therefrom.

395

Even with regard to the case he alludes to, (but the name of which he has not acquainted us with,) if a man occupies a house as a granary, and from which he derives an emolument, then he would, I think, be liable to be rated; but if a farmer (who is not liable to be rated for his stock,) was to make use of a house for the purpose of a granary, it might then be different.

C. and D. according to the circumstances stated in No. xix. p. 503., are not at liberty to marry again, for it was decided that a marriage lawfully contracted in England, cannot be dis solved in another country, by any authority whatever. See Rex v. Lilly, Burn's Just. 637. and 1 Dow. Rep. 117.

The solution of the second query, in No. xix. p. 503. depends on two points, 1st, Whether the law of divorce in the United States amounts to a complete nullity of the marriage, which if it does B. cannot be entitled to dower in England, as she must be considered the actual wife of the party at the time of his decease; 2dly, If there are two kinds of divorce, as in England, a mensa et thoro, and a vinculo matrimonii, it would depend entirely from which of these B. is divorced. T. E.

QUERIES.

1. A. obtains a verdict against B. for 50%., upon which a ca. sa. issues, and B. is locked up in the King's Bench. A. undertakes to discharge B. from custody, upon receiving the security of C. for the amount of the debt and costs. The security (a bond with condition to pay within three months from the date) is given, and B. is discharged. C. before he pays the money becomes bankrupt. Can A. prove upon the bond under the commission against C.

2. S. and P. are partners in trade; P. is an infant. It is intended to strike a docket, should the commission issue against both?

3. A. mortgages to B. his freehold estate for 1000l. A covenant is made that B. shall not be at liberty to call in the same without previously giving A. six months' notice in writing of his intention; can 3. compel A. to pay off the 1000l. before the expiration of twelve months without giving A. notice?

MISCELLANEA.

APPEALS IN GERMANY,

THE judicial faculty in every German university forms a court of appeal for the whole confederation. In all the states the losing party in a cause had the right of appealing to a university: this right was confirmed by the act of confederation; and even the native forum, if it find difficulties which require the assistance of more profound jurisconsults, may send the case for judgment to an university. In all these appeals the members of the juridical faculty become judges; receive no salary for this part of their duty, but they are entitled to certain fees paid by the litigants, which at Jena I have heard estimated as at least equal to the professional salary. To this

* See Legal Observer, p. 318.

AN ADVOCATE'S REHEARSAL.

Sir Henry Martin, Knt. was born in this city (London), where his father left him 40l. a year; and he used merrily to say, that if his father had left him fourscore he should never have been a scholar, but lived on his lands: whereas this being though a large encouragement but a scant maintenance, he plied his book for a better livelihood. He was bred a fellow in New College in Oxford, and by the advice of Bishop Andrews addressed himself to the study of the civil law.

By the advice of the said Bishop, Master Martin had weekly transmitted unto him from some proctors at Lambeth the brief heads of the most important causes which were tried in the high commission. Then with some of his familiar friends in that faculty, they privately pleaded those causes among themselves, acting in their chambers what was done in the court. But Mr. Martin making it his work exceeded the rest in amplifying and aggravating any fault, moving of anger and indignation against the guilt thereof, or else in extenuating and excusing it, procure pity and obtain pardon, or at least prevail for a lighter punishment. Some years he spent in this personated pleading to enable himself against he was really called to that profession.

Hence it was that afterwards he became so eminent an advocate in the high commission, that no cause could come amiss to him. For he was not to make new armour, but only to put on and buckle it, not to invent but to apply ar. guments to his client. He was at last knighted and made Judge of the Prerogative for Probate of Wills; and also of the Admiralty in causes concerning foreign traffic; so that as King James said pleasantly: "He was a mighty monarch in his jurisdiction over land and sea, the living, and the dead."- · Fuller's Worthies.

JUDICIAL AMUSEMENT.

A few day's afterwards I dined with the Lord Chancellor (Jefferies), where the Lord Mayor of London was a guest, and some other gentlemen. His Lordship having, according to custom, drank deep at dinner, called for one Mountfort, a gentleman of his who been a comedian, an excellent mimic; and to divert the company, as he was pleased to term it, he made him plead before him in a feigned cause, during which he aped all the great lawyers of the age in their tone of voice, and in their action and gesture of body,

LOCAL COURTS IN HAYTI.

The proceedings in the lower courts are somewhat extraordinary in civil cases. If a creditor institute a suit against a debtor in one district and obtain a verdict, the defendant is permitted to appeal from the sentence to the court of the adjoining district, and so on in succession throughout the whole series of district courts; and if the last confirm the judgment of the first, the defendant can then move it into the Court of Cassation; and in the event of that court confirming the judgments of the courts below he may appeal from it to the president, and apply for a new trial in those courts, so that the contest proceeds ad infinitum. - Franklin's Present State of Hayti.

QUALIFICATIONS OF A CHIEF JUSTICE IN
HAYTI.

The Grand Judge, Mons. Freshnell,is an infirm man of colour, nearly eighty years of age. Until he arrived at middle age, he had been actively and successfully employed in the marauding career of a private. His legal knowledge is just what might have been expected from his previous avocations. He is a modest old man, it is true, for when his present appointment was of fered to him he declined it, as he said himself from his incompetency to fill it, and to perform the duties which it required. Boyer, however, insisted on his accepting it, and remarked, "that it did not require talent or legal knowledge to execute the duties of it; that he had only to do as he was directed by such orders as he might receive from the bureaus of government." -Franklin's Present State of Hayti.

LORD THURLOW AND THE DISSENTERS.

A deputation from the dissenters waited on Lord Thurlow, by appointment, to request that he would give them his vote for the repeal of the test act. They were shown into his library, where a plentiful collation had been prepared. At length Lord Thurlow appeared, and, highly gratified by their reception, they delivered a long harangue, to which he listened with much patience. When it was finished, he rose up and addressed them :-" Gentlemen, you have called on me to request my vote for the repeal of the test act. Gentlemen, I shall not vote for the repeal of the test act. I care not whether your religion has the ascendancy, or mine, or any, or none; but this I know, that when you were uppermost, you kept us down, and now that we are uppermost, with God's help, we will keep you down."