382 Common Pleas and Exchequer Sittings. It was admitted that the plaintiffs were the owners of the Delos in March, 1829; and that "the Register of Shipping" for the year 1829 was printed by the order and authority of the committee for conducting the affairs of the Society for the Registry of Shipping, of which Society the defendants were the chairman and two of the committee for 1829. Proof of the soundness of the vessel, and of the special damage, was given. On the part of the defendants it was shown, that the plaintiff had requested that the surveyor of the Society would examine the vessel, that she might be put in the Register; that a survey was accordingly made, and the account of the vessel which had appeared in the Register was founded on the survey so made. Lord Tenterden C. J. on this evidence directed the plaintiff to be called. Kerr and Others v. Sedden and Others. Sit. after H. T. COURT OF COMMON PLEAS. LIBEL. -JUSTIFICATION. In an action for libel the declaration alleged that the plaintiff had carried on in an honest and lawful manner the business or trade of a manufacturer of bitters; and that the defendant had published a certain libel of and concerning him in his trade.' The defendant put no justification on the record, but merely pleaded the general issue. At the trial the plaintiff proved the publication of the libel, and after he had closed his case the defendant proposed to give evidence that the plaintiff had been engaged in the manufacture not of bitters, as alleged in his declaration, but of something of a different nature, and to be used for a different and illegal purpose. This evidence was objected to on the part of the plaintiff on the ground that it would go to prove the truth of the libel, which the defendant had no right to do, he not having pleaded a justification. The learned judge who tried the cause admitted the evidence, not in proof of the truth of the libel, but to show whether or not the plaintiff had, as alleged by him, carried on the lawful trade of a manufacturer of bitters, at the same time cautioning the jury not to give any weight to the evidence so far as regarded the question, whether the libel was true or false. On showing cause against a rule for a new trial, the question for the decision of the court was whether or not the learned judge below had decided properly in admitting the evidence. The Court was of opinion, that he had decided properly in admitting it with reference to the point of whether or not the plaintiff had carried on a legal trade. There was no principle of law more firmly established, than that a defendant in an action of libel was not at liberty to adduce evidence in proof of the truth of the libel, unless it was specially pleaded in justification; but it was a principle equally well established, that if a defendant was charged with having published a libel of and concerning another in his trade he had a right to call evidence to prove the legality of the plaintiff's trade, even though such evidence might go to prove the truth of the libel. Suppose the declaration charged the defendant with having libelled the Minor Correspondence. plaintiff in his trade as a manufacturer of bitters by stating that he had taken the benefit of the insolvent act and defrauded his creditors, would it not be competent to the defendant to show that the plaintiff was not a manufacturer of bitters, but of something totally different? and that being so, where was the difference between that and the present case? The mere fact of such evidence being calculated to prove the truth of the libel was no reason why, provided it were not offered and received for such purpose, the defendant should be debarred from adopting that line of defence. The plaintiff who alleged he carried on a lawful business must come down to court prepared to prove that it was lawful, and to disprove its illegality. If he failed upon that point he was not entitled to a verdict. For these reasons the court was of opinion, that the Learned Judge had done right in admitting the evidence, and that therefore the rule for a new trial must be discharged. Manning v. Clement. H. T. 1831. MINOR CORRESPONDENCE. In Holliday's life of Lord Mansfield, a work I believe never held in high estimation, a speech of his Lordship is given, page 250, in which mention is made of a manuscript work of Lord C. J. Hale, respecting the power of the English legislature to make laws for Ireland. Can you or any of your correspondents say whether that MS. was ever published, and if so, under what title; if not, where it is now to be found? I remember many years ago to have read in a magazine or newspaper, a speech ascribed to Lord Mansfield, when Mr. Murray, said to have been made in consequence of the military having SIR, Q. Will you be so good as to inform me, or ask some of your correspondents, why whole classes of the most profitable professional business are left to be conducted by persons from whom no professional education is required, and who contribute nothing to the fiscal burdens laid on attorneys? I allude to such departments as those occupied by persons who call themselves parliamentary, election, privy council, Scotch and Irish AGENTS. The law and the revenue seem to have no cognizance of these gentlemen. Upon what principles of policy are the clerks and officers of parliament allowed to practise to the detriment of the profession and the obstruction of their official duties? Yours, A. S. The long existing abuses of the Court of Chancery being now under consideration, I take the liberty of proposing the following question as one not at all foreign to the enquiry. Is the statute 15 H. 6. c. 4. now in existence, enacting "that no bill in equity be commenced, and no subpoena be issued without security being first given for its due prosecution, that so the defendant may have recompense if he be unjustly harassed?" I can find no repeal, and submit that the same is now in full force and virtue. This statute in the year 1436, and for some years after, was productive of the greatest advantage both to the business of the court, and the interest of the party seeking its protection. New Court, Middle Temple, QUERIES. J. E. J. 1. A. and B. are sureties in a joint and several bond to C. who compels payment from A., would A.'s proceeding against the principal discharge B, or is he obliged to enforce contribution from B. first, before proceeding against the principal? In whose names should the action be brought F. F. against the principal ? If A. devise lands to B. upon condition that at his (B's) death, they shall go to C.; and C. dies in the lifetime of B., do the lands at the death of B. revert to the next heir of A., or can B. bequeath the same to any person he may think proper? Is the devise valid of an estate under a will which contains the following attestation, which, it will be perceived, omits to state that the subscription of the witnesses was in the devisor's presence? "Signed, sealed, published, and declared by me as and for my last will and testament, in the presence of" [three witnesses.] "This "The Exchequer is a four cornered board, about ten feet long and five feet broad, fitted in manner of a table for men to sit about; on every side whereof is a standing ledge or border four fingers broad. Upon this board is laid a cloth, brought in Easter term, which is of black color, rowed with streaks distant about a foot or a span." He adds, "This Court, by report, began from the very conquest of this realm, and was erected by king William; but the reason and proportion thereof is taken from the Exchequer beyond sea." The particoloured cloth here mentioned, and called by the French chequy, resembles a chess-board; and on it when the king's accounts are made up, the sums are marked and scored with counters. very ancient court of record," says Herbert, in his History of the English law, from whence the following particulars are taken, "was a part of the aura regia, though regulated and reduced to its present form by king Edward the First, and was intended principally to order the revenues of the crown, and to recover the king's debts and duties." With respect to the dignity and authority of this court Bracton tells "that it is a part of that court of our lord the King in which he himself judges in proper person; and that its determination may not, except by that court, be infringed or contradicted; by which it evidently appears, that the court of Exchequer was then a distinct court from the one wherein the king himself customarily sat, and from whence there was no appeal. Here originally sat, by the institution of its founder William,+ not only the great barons of the realm, ecclesiastical and secular, but also the justice of England, as president of the same by his office, and so continued to do for a considerable time afterwards. For in the reign of Henry the us,3 1 Tenis thesaur. et camerar. scacc. 2 Madox Hist. Exch. 109. 3 Ex. cod. nigro penes thesaur. et camerarios scacc. per Gerv. Tilbur. (ut fertur) composito temp. regis H. 2. cap. 1. 4 Dialog. Scacc. per Gerv. Tilbur. cap. 4. Second, ‘the abbot of Abingdon1 being dead, and an officer sent by the king's justices to seize the possessions of that monastery into the king's hands, de communi consilio, says the register of the house, misimus dominum Nicholaum priorem nostrum, &c., by common consent we despatched Nicholas our prior, and certain of the monks unto Ranulph de Glanvill, who then executed the power of justiciar under the king throughout his whole realm, to the end that he might, by word of mouth, represent to him our customs; and to entreat him that they might not be altered by reason of this seizure: and when they were come to the said Ranulph, then sitting in the Exchequer at Westminster, and had manifested to him what our liberties and customs were, he, advising with the bishops and other justices who also sat there, published the judg ment of the Court, viz. that whether our church were destitute of a pastor or not, our customs should not be infringed.' "In the time of Henry the Third, upon the seizure of certain lands which belonged to one Rose de Chesterton, who was then commanded to appear coram Huberto de Burgo, justiciario et baronibus de scaccario.2 "In this court, anciently, fines were sometimes levied and recorded, as upon an agree ment made betwixt Roger de Braie and Mabel, the daughter of William de Orgo, concerning lands in Maldone sold by the said Mabel to the same Roger, coram justiciariis regis, scie., Richardo Pictaviensi archidiacono, et Reginaldo de Warennâ apud Dunstaplam: which agreement concludes thus, Hanc cartem, quam sigillo meo confirmavi, concessi et confirmavi apud scaccarium, coram domino Richardo de Luci, et aliis baronibus de scaccario. "This, though not dated, was in Henry the Second's reign; when Richard de Luig was justice of England, and sate in this court, with others already mentioned. "After the confirmation of the great charter, for the greater part of the reign of Edward the First, the Common Pleas were usually held in this court: the statute of the 28th of that monarch being expressly made to prevent their being henceforth held there, contrary to the form of Magna Charta. Instead of ecclesiastical and secular barons, here sat canonists and other temporal persons learned in the laws, who had thereupon the name of barons, because they sat in the same place as the real barons did; the Lord High Treasurer also supplying the room of the Chief Justice of England, as we learn both by the testimony of Fleta and the record of 18th Henry 3., when William de Beauchamp was appointed a baron of this court, together with Alexander de Swereford, then treasurer of St. Paul's Cathedral, and Richard de Montfichet, each of whom had a pension of eleven marks per annum, payable out of the Exchequer, for their support. 1 Regist. de Abbendon in Bibl. Cotton. 2 Rot. fin. 8 Hen. 3. m. 5. 3 Ex ipso autogr. penès prænob. Thoman dominum Bruce, comitem Elginiæ, an 1660. . STAFEL LAWS. The stapel laws, or the right which many cities possessed to detain, for a certain time, in their own warehouses, all merchandise passing by or through their territories, and that they should be there exposed to sale, seriously injured the commerce of Germany. A melancholy instance of this is given us in the stapel right enforced by the city of Dordrecht in Holland. It is a fact not to be denied, that the Rhenish cities, particularly Cologne, were formerly the most powerful and flourishing of all Germany, as the Cologne merchants were the first founders and occupiers of that house, celebrated in the annals of English commerce, the Gildehalla Teutonorum, known also by the name of Stalgeard, Steelyard, in London. By the stapel right enforced by Dordrecht, not only their navigation was injured, but, powerful as the Germans were, they saw their greatest and most important river closed before their eyes, and had to wait the will of another as to what and how much merchandise they would please to take from them.-Schmidt's History of Germany. TEMPLE GARDEN. Shakespeare, whether from tradition or history is unknown, makes the Temple Garden the place in which the badges of the white and red rose originated; the distinctive cognisances of the houses of York and Lancaster, under which the respective partisans of each arranged themselves in the fatal quarrel which caused such torrents of blood to flow. The scene is preserved in the First Part of Henry 4. (act 2. scene 4.), where Richard Plantagenet plucks a white rose, and the Earl of Somerset a red one. After a very tedious and heated controversy between them, the Earl of Warwick thus prophesies: John Dickson, a stubborn Englishman, being commanded by an officer of the ordnance to veer his boat, and give place to king's artillery; he answered, that he would not veer his boat for either king or kaisar; and thereto added, that James I. was but a bastard king, and not worthy to be obliged, for which crimes he was condemned to death. dicted for a libel, as we should now call it, deOctober 10th, 1600, Francis Tennant was intracting from the king, and terming him (in allusion to Rizzio) the son of Signior Davie. He was sentenced to be taken to the market cross, his tongue cut out by the root, his brows crowned with a paper, on which his crime should be inscribed, and then hanged till death. A subsequent revision of the sentence dispensed with cutting out the tongue, or any further torture, such being the tender mercies of the monarch; but the punishment of death was inflicted. SOCIETY FOR THE PROMOTION OF LAW REFORM. To the Editor of the Legal Observer. I HAVE long been desirous of bringing before the profession and the public the plan which is the subject of this letter, and I think that your publication will enable me to do so to the greatest advantage, should you think proper to insert this letter. I view the present times with feelings which constantly vary; sometimes with hope, sometimes with fear. There is a strong and universal desire abroad for reform reform in our state- reform in our church -reform in our laws. Now, sir, I partake of this feeling I am also a reformer - I am also desirous of seeing a general amelioration of our institutions, and in particular of those of which, from my past occupations, I am best able to judge of the laws of the land. I am most ready to admit that they have many faults which may and which must be amended. But I will frankly own, that I think that this feeling may be carried too far. I cannot join in an indiscriminate clamour against our legal institutions. I think that many of them are well calculated for the administration of sure and speedy justice, and I am desirous to see them preserved. This is my opinion, sir, an opinion in which I am certainly not singular; and seeing a strong feeling abroad for law reform, and rejoicing at it, I am desirous of directing it to the proper objects. If it be kept in the right channel, it may be of great service, but it may otherwise effect no good purpose, and may be productive of much mischief. I have therefore been desirous of finding some means which will effect all the desired ends, and I consider that I am now able to propose them. It appears to me, that a highly useful society might be immediately formed, the NO. XXV. object of which should be to meet the feeling in favour of law reform, and to direct it into the proper channel. I should recommend that it should be composed of all branches of the profession, and of such other respectable persons as should think proper to join it-that the subscription should be moderate, so that its members might be numerous that the exertions of the members, and the funds of the society, should be devoted to the investigation of all necessary law reforms—and that the results should be communicated to the society and to the public at an annual general meeting. If a society of this description be formed, sir, I anticipate much benefit from its labours. We should then have the full and proper means for the discovery of all real abuses and evils in the administration of justice throughout the country, and we should then have the proper remedies suggested which practical wisdom and experience can alone propose. The amelioration of our laws might thus be gradually brought about, not by any violent change, but by steps slow and certain. The attention of the law reformers would thus be directed to the proper objects, and the demand for law reform might thus be attended with benefit. I propose the formation of a society of this kind, sir, from the sincere belief that it will exist for the benefit of the country and the legal profession; but if this feeling creates no sympathy in the breasts of your readers, which I can hardly believe, I should then address them in a different style-I should then say, that it is absolutely necessary to satisfy the moderate demands which are now made for law reform. The real grievances, and there are many, must be redressed; or in the general shout for reform the good part of our present institutions may perish with the bad. If I could not speak to their feelings of justice, I would address their fears, and earnestly Hh 386 The Master of the Rolls and the Vice Chancellor. exhort them to prove that they are busy in the work of rational reform. The public might not be easily satisfied; but it would be easy to prove that all hasty and sweeping changes in the administration of justice have ever been productive of evil, confusion, and injustice; but that, on the contrary, the remedy of an actual grievance, proposed and carried into effect by men of experience, has been the best mode of effecting reform. This would be the object of the society which I would propose, and I sincerely trust it may be taken up and established by men of weight and importance. I am, Sir, Your obedient servant, A PRACTICAL MAN. THE MASTER OF THE ROLLS AND LETTERS OF A HEIDELBURG STUDENT ON THE LETTER II. MY DEAREST FRIEND, IN my last letter I described fully to you the court of the Lord Chancellor, and gave you my opinion on the eminent person who now presides there. I shall devote this letter to the other learned judges who sit in the inferior Courts of Chancery. But first I will mention to you a singular inconvenience that obtains in the administration of equity in this country. So pleased was I with my first day in Westminster Hall, that I proceeded thither two days after my first visit, having been assured that the Lord Chancellor was sitting, but found to my mortification a very different scene from that which I have before described. The courts were all closed, the hall was empty and desolate, the busy faces were no longer seen, and I was the sole occupant of a place which, when I last had seen it, had been crowded with people. I was just turning away much disappointed at the incorrectness of my information, when I met the very friend who had given it to me. Why," I said hastily, "I thought you said the Lord Chancellor was sitting. "Yes, and so he is," was the answer. "It is with closed doors then." "No, he is sitting in Lincoln's Inn; I thought you knew enough of our institutions to know that he was sitting there. He only sits here in Term time.' "What is the reason of the change of place ?" "There is none, in Term time But now let me proceed to the other Courts of Equity. The Court of the Master of the Rolls, is the next in rank to that of the Lord Chancellor, and the most eminent judges have presided there; and as the appointment is for life, many persons have preferred it to the Chancellorship. I shall shortly describe the judge who now presides there. Sir John Leach has now acted as judge in equity, as Vice Chancellor and as Master of the Rolls, for about thirteen years. He possesses certain qualities in an eminent degree. He seizes, with most remarkable quickness, the real facts of the matter before him; he does not attempt to lay any foundation for the judgment which he shall give, but grapples with and surmounts the difficulty of the case at once. He certainly has extraordinary powers in despatching his business, exceeding, I am told, in this quality any other judge who do not always give satisfaction; they are freever presided in equity; but his decisions |