312 Power of the Bench over the Bar. very general riot and disturbance, occasioned by the mob forcing its way into the court, and this person at its head, advancing in a riotous, menacing manner, using abusive and insulting expressions to the magistrates, and holding up his clenched fists towards them, in a threatening attitude.' Before, I say, they had stated these as facts, they should have most attentively canvassed all the circumstances which suggested them, and weighed them well, before they should have brought such serious charges against any individual, and if their only grounds for the statement was the assertion of third persons, they should have been perfectly satisfied of the truth of the assertions, and the credit of the persons making them. "We find, shortly after, that these magistrates make use of the expression, His companion in the dock,' alluding to another person of a different grade in life, whom these magistrates had committed that day. Now, gentlemen, it is for you to consider, whether they would have used this expression, if they had been preparing a fair and candid statement of the circumstances that had occurred on the occasion, and whether there is any thing in the tone of this expression, which savours of ill-will towards the plaintiff, and whether, if a magistrate should find it his duty, his painful duty, to commit a barrister to the dock, you think he would designate him as 'this person,' and allude to him in the words 'his companion in the dock.' "But next comes a direct allegation, that, They had no reason to believe he was a barrister, and that it was not until after he had been committed to the dock, that they knew he was a barrister.' You, gentlemen, will see from the evidence, whether that allegation was consistent with the fact, whether it appears on the evidence, that Mr. Croke had declared himself, in the beginning, to be counsel for the plaintiff in the case; or whether it was not disclosed that he was counsel, until after his committal. The magistrates, indeed, add, that his rank should not have protected him:' but, gentlemen, it is right that we should recollect, that a barrister stands not, as such, in any peculiar or personal rank, but his claim to the attentive consideration of the court is, from its feeling that he is the shield of the subject. It is true that a magistrate may, in an extreme case, undergo the responsibility of committing a barrister, if his conduct is grossly contemptuous, but it must be an extreme case; and you will see whether this committal was that extreme case. No one recollects a barrister having ever been committed in the exercise of his duty to a client. We have heard of judges having threatened this result, but the oldest man living does not recollect any court having ever exercised this power and it has been left for the magisgistrates of the petit sessions at Bruff to be the first to show the example. "The next thing we find stated by these magistrates is, that, from the thronged state of the court, from the noise proceeding from the crowd, and from the post in the centre of it, taken by Mr. Croke, they early apprehended a riot.' Now, gentlemen, if there were facts which portended the appearance of a riot, it certainly was their duty to state them; but when they say, that a barrister was the cause, I think they should have been able to establish it beyond suspicion; but here they put him down as the probable cause of the riot. Their sus picion, they say, lighted upon Mr. Croke, as the probable leader.' Of this, too, gentlemen, you are to be judges, whether he was so or not; or whether they lightly, or whether they fairly formed that suspicion. "Again, they say, that his face was partly disguised, as if to prevent his being recognised.' Now, what is the impression thus intended to have been made by this letter? Is it not, that Mr. Croke came, intending to foment a riot, and to protect himself from the consequences that he actually had disguised his face? You will consider the evidence as to that, and what is the case as to this part of the subject. A pedlar has a cause with a toll-gatherer, and it is generally understood that a barrister is to come to Bruff, on the plaintiff's side; the barrister does attend, and he is addressed by the clerk of the court, who offers to get him a suitable seat, and yet, after this, he is charged with wanting to disguise himself, for the purpose of commiting a riot, and to disguise himself from those whose attention he has called on to those rights, with which, as a barrister, he was invested. Now, if the magistrates did not believe that he disguised himself for the purpose they suspected, this was not a true statement, and therefore it is, as respects them, an unworthy insinuation; but they go on and say, that from his dress, deportment, and conduct, they never suspected he was a gentleman,' and they had considerable doubts whether he was sober.' You will consider whether any thing appears to have entered into the mind of any of the witnesses, to justify that suspicion. "These magistrates then add, that 'these very unfavourable impressions' on their minds have received strong confirmation from information which has since reached them.' You will see, presently, the nature of this information. It is left for us to suppose it could only be the very evidence which we have heard given for the defendants here yesterday, but they say there are facts to which they wish to call the attention of the Lord Chancellor. And what were these? -That Mr. Croke, when he first entered the court-house, loudly and distinctly addressed the crowd in the hall, and told them, he was come there to humble the magistrates, and that be would be assistant-barrister of the day,' and such like observations. Now, gentlemen, if Mr. Croke used these or similar expressions, and there is evidence that he did so, the words are most important indeed, and if you believe that he so conducted himself in the hall, before going into court, it will go to diminish very much the amount of any damages you might be inclined to find; and it will be also material, if the magistrates had any reason to believe that he had been acting so, for it will go to justify that part of their statement; and if it is an established fact that he did so misconduct himself, and that you should doubt as to what was his conduct in the court, his conduct in the hall will help to throw light on his conduct in the court, and you The New Bankruptcy Bill. will think his conduct, as stated there, to be less improbable; for where there is any doubt in the evidence, you will have to consider probabilities." We have no room to extract the correspondence between the bar and the Irish Lord Chancellor (Hart) on this subject, which is of considerable interest. It is sufficient, however, to say that this affront was not tamely submitted to, and the case will hardly now be quoted as a precedent. This is the state of the authorities on the point, from which we deduce the following principles. That, in this country, the Inns of Court have an undoubted authority to disbar a barrister who has grossly misconducted himself: that in the colonies this power may be exercised by the bench; but, that the bench has no power to commit a barrister in the discharge of his duty as an advocate. THE NEW BANKRUPTCY BILL. We shall again shortly allude to the Bankrupt Bill, the details and the principle of which still continue to be agitated both in and out of Parliament. It is said, that all the law-lords, including Lord Tenterden, are opposed to it; and considerable fears are entertained as to its passing, at any rate in this session of parliament, even though there be no dissolution. If this be true we most sincerely regret it; its being thrown out will, to use the emphatic words of the Lord Chancellor, "carry dismay and despair into the hearts of the citizens of London." We have elsewhere stated our only objection to the bill, but we shall insert two letters which we have received from persons whose opinions are entitled to attention, which enter into some of the details. We hope, most heartily, that it will pass; and are satisfied that, as a whole, the legal profession is favourably disposed toward it. 343 but that, receiving from many sources as well the results of experience and practical knowledge as the speculations and theories of the law reformer, we have endeavoured to benefit by both of them, to stand forth the friend of moderate and practical reform, and to direct growing feeling in its favour into the proper channels. The letters we alluded to are as follow: THE BANKRUPTCY COURT BILL. To the Editor of the Legal Observer. On my return from the country last evening, A perusal of the new bill raised some doubts in my mind; perhaps I can best convey them and obtain answers by putting them, with your permission, in the shape of questions; thus, In case no creditor shall think fit to accept the office of assignee, under the official assignee, is the official assignee to act alone? Is the official assignee to appoint the solicitor to the commission? Is the official assignee to be subject to liabilities as assignee of the estate, and to actions for things done in the execution of his office? What sort of security for costs on appeal is expected to be found by a bankrupt (9th sect.) iminediately after the adjudication has divested him of his property? Are attorneys to be permitted to stand in the place of their clients, and examine and cross examine witnesses, and address these new courts, or must barristers be always employed? Section 12. directs all examinations of the bankrupt to be carried on in private: does this mean to the exclusion of the creditors and their attorneys? Does it not occur to you, that the machinery Your very obedient Servant, 21st March, 1831. To the Editor of the Legal Observer. We may take this opportunity of adverting to some remarks on our publication in an able contemporary. It is misinformed if it supposes that we profess peculiarly to represent the opinion of any one class of the profession. We are proud of the support which we have met from all I have read with great care the new Bankits branches. We certainly have laboured, ruptcy Bill printed in your Supplement for Feand shall continue to labour, to set the|bruary, and your remarks on it. I wish to call your attention to a part of it, which, as it at profession right with the public; but we are also anxious to advocate the interests present stands, so far from being productive of of the community. If our contemporary will benefit, will greatly increase both expense and delay. I allude to the sections in the bill which therefore favour us by the promised exrelate to the proof of debts and the power of amination of our opinions, he will see, that appeal thereupon. They enact, that the proof we in no way support the exclusive senti- of debts shall first be made by one of the juments of any one class of the profession;nior judges, who, if he thinks fit, may adjourn E e 4 344 Settlements by Infants. That when the light for any dwelling house, workshop, or other building shall have been actually enjoyed for the full period of twenty years without interruption, the right shall be deemed absolute and indefeasible, any local usage to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for the purpose by words or writing. Analysis of New Bills in Parliament. such proof into the subdivision court to which he belongs, which shall finally dispose thereof, without any appeal, "excepting upon matters of law or the refusal or admission of evidence;" in which case it is further enacted, that such matter may be brought under review of the court of review, and the proof of the debt shall be superseded until such appeal shall be disposed of; "and in like manner, there may be an appeal on the like matter of law from the court of review to the Lord Chancellor." It is also provided, that an issue may be directed to a court of common law for the trial of disputed debts. Now, sir, here are four distinct courts through which a disputed debt may be carried. 1. That of the Junior Judge. 2. The Subdivision Court. 3. The Court of Review. 4. The Lord Chancellor's, besides an issue which may be directed as to the same debt to a court of common law. There may be no fewer than three appeals. This appears to me worse than the present system, where, as you know, there is but one; and, I am convinced, from some experience in the matter, that if this triple right of appeal be given, there will be much more vexation, delay, and expense, than now exist. I am, sir, your obedient servant, ANALYSIS OF NEW BILLS IN PARLIAMENT. TITLES BY PRESCRIPTION. OUTSTANDING TERMS AND JUDGMENTS. LORD TENTERDEN's bill for shortening the time of prescription, and lessening the impediments to the transfer of real property created by outstanding terms and judgments, recites that the expression 'time immemorial' is now by the law of Eng. land, in many cases, considered to denote the whole period from the reign of Richard the First, which is productive of injustice; for remedy whereof it is proposed to be enacted, That no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common, or other profit or benefit to be taken and enjoyed from or upon any land of our sovereign lord the king, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except rent and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless itshall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by words or writing. In claims of right of way, watercourse, or other casement, the periods to be twenty years and forty years, unless by consent as aforesaid. Prescriptions and claims to modus decimandi cr exemption or discharge from tithes where tithes in kind demanded by the king or a layman or corporation aggregate, to be deemed valid, on proof of enjoyment for thirty years; unless proof of render or payment prior to thirty years. If the proof of the claim extends to sixty years, the right to be indefeasible: unless proof of consent, &c. Where tithes in kind demanded by any ecclesiastical person or corporation sole, the prescription or claim to be valid and indefeasible, upon evidence during the whole time of two incumbents, and of six or more years after the appointment of a third, not being less than sixty years in the whole; unless proof of consent, &c. The act not to be available in suits pending or to be commenced within three years. Proviso in favour of infants, idiots, &c., as to the periods of twenty and thirty years, but not in any case where the right or claim is hereby declared to be absolute and indefeasible. Proviso for absence beyond sea at the expiration of the period. Six years allowed, except where the right is declared to be absolute and indefeasible; and Scotland, Ireland, the isles of Guernsey, Jersey, Alderney, Sark, or Man, shall not be deemed places beyond the seas. In actions on the case the claimant may allege his right generally, as at present. In pleas to actions of trespass and other pleadings, where the party used to allege his claim from time immemorial, the period mentioned in this act may be alleged; and exceptions or other matters to be replied specially. Terms of years created for particular purposes to be considered as determined at the end of two years after the purpose is satisfied, unless assigned, &c. for some other purpose, or to attend the inheritance. Terms attendant on the inheritance may be merged therein by the owner thereof. Money recovered by bond, covenant, judg ment, or term of years, to be deemed satisfied at the end of twenty years, if no principal or interest paid in the meantime. SETTLEMENTS BY INFANTS. In another page of this Number will be found a short note from our Chancery reporter of a late important case, in which the Master of the Rolls has held that a female infant cannot settle her leasehold property or chattel interests which are limited to her use. We shall briefly notice the state of the law on this point. Although a contrary opinion formerly Medical Jurisprudence. obtained, yet it now seems decided that a female infant cannot settle her real estate.† It was, however, perfectly clear, that she might settle her personal property, as well vested as contingent, if the settlement were reasonably beneficial to the infant,‡ and also her choses in action. Leaseholds being personal estate it has always been considered that they might also be settled by an infant; which does not seem to have been disputed by the Master of the Rolls as he grounded his decision on the circumstances of their being limited to the separate use of the infant. This, then, is the present state of the question, and as the decision of the learned judge has been appealed from we may soon hope to see it finally settled. ON MEDICAL JURISPRUDENCE, No. I. THE LAWS RELATING TO THE BIRTH OF CHILDREN.-TENANCY BY THE CURTESY, AS AFFECTED BY THE CÆSARIAN OPERATION, AND BY MONSTERS, &c.- -ORDER OF BIRTHS. MR. Amos, in a recent Lecture on Medical Jurisprudence, delivered at the London University, made the following observations: "It is frequently of great importance in legal affairs to ascertain whether a child has been born alive, though it live but for a few seconds. I might put a number of instances of this, but one will suffice. A man marries a woman who is possessed of a landed estate; he has a still-born child, and his wife dies shortly after the delivery. The landed estate will go over to the remotest relation the wife has, nay, to the king, in preference to the husband. But if the child was born alive, and lived only a second, the estate would go to the husband for his life, who would be called a tenant by the curtesy.' "I put this instance of a tenancy by the curtesy only by way of illustration; for I could put many other instances, where the living but for an instant is important with a view to legal consequences; but my only object is to impress on the mind of the medical practitioner the necessity of paying particular attention to cases where children die soon after birth. As I have selected the instance of a tenant by the curtesy, I will follow it up by mentioning one or two medicolegal points connected with this particular legal estate. *Cannle v. Buckle, 2 P. Wms. 243. Harvey V. Ashley, 2 Atk. 612. Warburton v. Lytton, B. C. C. 440. Drury v. Drury, 5 B. P. C. 590. Pierson v. Pierson, cit. 1 B. C. C. 115. Chitty v. Chitty, 545. Milner v. Lord Harewood, 18 Ves. 275. Trollope v. Linton, 1 Sim. & Stu. 774. Harvey v. Ashley, 2 Atk. 612. Williams v. Williams, 1 B. C. C. 152. § Price v. Seys, 3 Barnard. Trollope v. Linton, 1 Sim. & Stu. 477. 6 345 "For a considerable time it was the opinion of the profession, that, to create a tenancy by the curtesy, the child must be heard to cry. Our great oracle of law, Lord Coke, dissented from that opinion; but upon a ground of which I de not know whether medical men will approve, viz. that the child may be deaf and dumb. It is probable, however, that the crying of the child would be regarded by a jury as conclusive evidence of the child being born alive. Again, it is the law, that a tenancy by the curtesy will not be created, where the child is ripped from the womb' by the Cæsarian operation, after the death of the mother, because it is not born during the marriage. Here is a strong inducement as far as interest, not feeling, is concerned, on the part of the husband, to have the operation performed before the death of the mother. And in case the mother expire under the operation, or if it be performed with great haste after the supposed death of the mother, here is a question of fact, attended with important legal consequences, as to whether the mother survived the birth of the child but for an instant. This is a legal point which may stimulate your medical enquiries with respect to the history of the Cæsarian operation. Again, the birth of a monster does not create 66 a tenancy by the curtesy. Some writers on medical jurisprudence pass over the subject of monsters' by saying, it is unimportant to make particular enquiries concerning monsters, because they seldom live long; whereas, from what has been just said, you see the importance, as regards a tenancy by the curtesy, of the point, where a child has lived a minute, of ascertaining whether it were, or were not, a monstrous birth. "I have been taking the tenancy by the curtesy only as one example out of many to which to attach my observations; we will take another example, for variety:-Suppose a man had a daughter by one wife, and a daughter by a second wife, and died; and there happens a posthumous birth. If the posthumous child is a son, and it lives for a second, the consequence would be to disinherit the eldest sister entirely, and give all the estate to the youngest; for the eldest sister is not heir to the brother, being of half-blood. But if the posthumous birth was of a monster, then the two sisters would inherit equally. This is what the law calls a possessio fratris;' and many other examples of the importance of these enquiries, in a medico-legal point of view, might be stated. "A word or two more on the subject of monsters: our law is, in a great measure, the creature of emergencies. We are a practical people, and have dealt very little in prospective legislation. The subject of monsters affords an example of this. I will read you the legal definition of a monster: "A monster, which hath not the shape of mankind, cannot be heire, or inherit any land, albeit it be brought forth within marriage; but although he hath deformity in any part of his body, yet if he hath human shape he may be heire. Hi qui contra formam humani generis converso more procreantur, ut si mulier monstrosum vel prodigiosum enixa, inter liberos non computentur. Partus tamen cui natura aliquantulum ampliaverit vel diminuerit, non tamen superabundanter (ut si sex digitos vel nisi quatuor habuerit) bene debet inter liberos connumerari. Si inutilia natura reddidit, ut si membra tortuosa habuerit, non tamen is parlus monstrosus. Another saith, ampliatio seu diminutio membrorum non nocet."* "You will ask, how does the law provide for the case of the Siamese youths, their rights in regard to third parties and to each other?—and how for a person whose face may be inhuman, but may possess reason-say the case, real or supposed, of the pig-faced lady? and, probably, medical men may put a number of other instances;-I answer, that the law says nothing more than what I have just read; and that, therefore, if a case of monstrous birth should be brought before the courts, the courts will seek for all the medical information that can be obtained, and will legislate for the particular occasion; only they will not call it legislation, but will pretend to found their decision upon Lord Coke's definition; which definition, by the way, is borrowed from Bracton, who borrowed it from the civil law. "There is another species of birth, of which the law speaks in terms as vague and rude as upon the subject of monsters-I mean hermaphrodites. "An hermaphrodite (which is also called androgynus) shall be heire, either as male or female, according to that kind of the sexe which doth prevaile. Hermaphrodita tam masculo quam femina comparatur, secundum prevalescentiam sexus incalescentis. And accordingly it ought to be baptized.+' "A committee of medical men and lawyers would give us some more distinct and scientific rules upon the subject of hermaphrodites, as well as upon monsters; but, in the present infantine state of our jurisprudence as to these matters, it is the more incumbent on the medical practitioner to note every minute fact, with regard to births of doubtful sex, particularly when you reflect on the misrepresentations which ignorant or interested persons may make on such a subject; and to which such malformations, as are every now and then occurring, may give a colour. "We have been considering the nature of particular births; I should mention that the order of births is also a most material circumstance to attend to, when two or three children are born at a time. The following case has occurred in our courts:-There was a family of eight children, of which the three youngest were born at one time, and the five eldest died-the priority of birth of the three youngest was questioned in a suit brought for the inheritance. The names of the children were Stephanus, Fortunatus, and Achaicus, three names which are to be found in this order at the conclusion of St. Paul's Epistle to the Corinthians; and evidence was given of the declarations of the dead father, that this was the order of their births; but this evidence was outweighed, in the opinion of the jury, by the evidence of the declaration of a deceased aunt, who was present at the birth, and who used to say, that she tied a string round the arm of Stephanus immediately after he was born, in order to denote that he was the second son." * Co. Lit. 7 b., 8 a., and 20 b. + Co. Lit. ibid. EXPENSE OF LEGAL PROCEEDINGS. To the Editor of the Legal Observer. As so much has been said about the necessity SUPERIOR COURTS. LORD CHANCELLOR'S COUrt. THE petitioners, who were solicitors, had received instructions to sue out a commission of bankruptcy against a Mr. Cooper, and the docket was struck on the 14th of the last month; and before ten o'clock on the morning of the 19th, they applied at the bankrupt office to bespeak the commission. The fees thereon were taken by a junior clerk, in the absence of the principal clerk, who, however, arrived at ten o'clock, which is the proper time for opening the office, and at that time a clerk of Messrs. Allen and Co., solicitors, came to the office to bespeak a commission against Cooper, on behalf of another creditor. The order requires the applicant for the commission to bespeak it four days from the striking of the docket, and the 19th being the fifth day afterwards, Messrs. Allen's clerk demanded the commission. The principal clerk thereupon directed the fees to be returned to the petitioners, and caused the commission to be prepared for Messrs. Allen. Mr. Walker now applied on behalf of the petitioners to have the commission given to them, and cited In re Graham, Buck. B. Č. p. 529. The Solicitor-General opposed the question. The Lord Chancellor thought that the preference had been rightly given to the last applicant, as the commission had not been bespoken within the appointed time. What was done before the It can hardly be said that the claim for court fees stands on the same footing as the entries of pleadings. The officers engaged in trying causes have a laborious duty to perform.ED. |