402

delay and expense fines and recoveries. There will be much mourning at this alteration among the cursitors and at the king's silver office. One conveyancer is reported to have said, on hearing of the alteration, in the frenzy of the moment, that he would rather "part with his bowels than treble voucher!" The Commissioners have, however, remained unmoved by this threat; and we think they have the public and the large majority of the profession with them. It is proposed that a simple conveyance should be substituted in the place of these theatrical assurances.

The only other alteration at present proposed is the change of the period of limitation from sixty to twenty years. This is by far the most important proposition; and we are not prepared to give our unqualified support to it. It is in some respects in conflict with the bill of Lord Tenterden* respecting prescription; and we anticipate and should recommend that one complete bill on the subject should be introduced.

We think this so likely, that we shall forbear to discuss the details of either bill. There is one point, however, in which both of them concur, to which we also most cordially agree. They both endeavour to fix some limitation to claims made to church property. The old maxim of Nullum tempus occurrit ecclesiæ is attended with extraordinary grievances in practice, and inflicts great injury on the alienation of all church property. We were surprised, therefore, to see an opposition to the measure of Lord Tenterden display itself on the right reverend bench of bishops. They might have trusted, we should have thought, to so old and tried a friend to the church as the present Chief Justice of England.

These bills, together with the other bills for the amendment of our laws, are now once more defeated. We hope, however, that, as the principles on which they are founded have been fully discussed, no delay will attend them in a new parliament, but that they will be permitted to pass without any further opposition.

• See analysis of the bill, antè, p. 344.

REMARKABLE TRIALS.

No. III.

Hawkins and Simpson's Case. Joux Hawkins and George Simpson were indicted for robbing the mail on the 16th April, 1722 Hawkins, in his defence, set up an alibi ; to prove which, he called one William Fuller, who deposed that Hawkins came to his house on Sunday the 15th of April, and lay there that night, and did not go out until the next morning. Being asked by the counsel," By what token do you remember that it was the 15th of April ?" he replied, " By a very good token; for he owed me a sum of money for horse hire; and on Tuesday the 10th of April he called upon me, and paid me in full, and I gave him a receipt ; and I very well remember that he lay at my house the Sunday night following." The receipt was now produced: "April the 10th, 1722. Received of Mr. John Hawkins the sum of 17. 10s. in full of all accounts. Per me,- William Fuller.'" Upon inspecting the receipt, the Court asked Fuller who wrote it: he replied, "Hawkins wrote the body of it, and I signed it." Court. "Did you see him write it?". Fuller. "Yes.". Court. "And how long was it after he wrote it before you signed?"Fuller. "I signed it immediately, without going from the table."-Court. "How many standishes do you keep in the house?"- Fuller. Standishes!" -Court. "Standishes; it is a plain question." Fuller. "My Lord, but one; and that is enough for the little writing we have to do." — Court. "Then you signed the receipt with the same ink that Hawkins certain."-Court. "Officer, hand the receipt to wrote the body of it with ?"-Fuller. "For the jury. Gentlemen, you will see that the body of the note is written with one kind of ink, and the name at the bottom with another very different; and yet this witness has sworn that they were both written with the same ink, and one immediately after the other. You will judge what credit is to be given to his evidence."

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Thus the authority of the receipt and the credit of the witness were overthrown by the sagacity of the Court. But while the judge (Lord Chief Baron Montague) was summing up the evidence, he was interrupted by the following occurrence: The person who reports the trials was then taking notes of the proceedings: his ink, as it happened, was very bad, being thick at the bottom, and thin and waterish at the top; writing appeared very pale or pretty black, so that, accordingly, as he dipped the pen the This circumstance being remarked by some gentlemen present, they handed the book to the jury. The judge perceiving them very attentively inspecting it, called to them-"Gentlemen, what are you doing: what book is that?" They told him that it was the writer's book, and that they were observing how the same ink appeared judge then told them-"You ought not, gentlepale in one place, and black in another. The men, to take notice of any thing but what is produced in evidence;" and then, turning to the writer, demanded what he meant by showing that book to the jury; and being informed by the writer that it was taken from him, he enquired who took it, and who handed it to the jury. But

for the debt for which the note was given; and it was holden that this agreement had discharged the surety.

An agreement between the two principal parties to alter in the slightest degree their original contract, will discharge the person who acceded to the contract as surety. Thus, in Whitcher v. Halls, by a special agreement between the plaintiff of the one part, and Joseph Hall as principal, and the defendant as his surety, of the other part; the plaintiff was to let, and Joseph Hall take, the milking of thirty cows at a certain rate per cow per annum, from the 14th of February following. On that day possession was given of the dairy of thirty cows, only ten of which were fit for milking. At Lady-day, the plaintiff put two more milking cows into the dairy, making thirtytwo; and subsequently the principal parties exchanged cows from time to time, the plaintiff putting in those fit for milking, instead of others which were not so. In May, Joseph Hall had thirty-two cows; and he made the following agreement with the plaintiff, viz. that the plaintiff, instead of taking out two then, should be at liberty to take out four at the fall of the year. This new arrangement was acted upon; and being new, the Court held it discharged the surety; though, in point of profit, it was proved to be equivalent to the original agreement. Eyre v. Bartrop was cited by Mr. Theobald as a case to the same effect in equity.

h

An agreement between the creditor and principal debtor, which would have the effect of discharging the surety, supposing it to have been made bond fide on the side of the debtor, will also have that effect, although it was fraudulent on the side of the debtor. For instance: Huey and Wilcox as principals, and Edwards as their surety, were severally and jointly bound to the plaintiff in a penalty for the payment of 20007. on a specified day; before which day Huey prevailed on the plaintiff to give him up the bond, and to accept, in lieu of it, four notes of different persons, payable at future days; and he signed an agreement, in the names of himself, Wilcox, and Edwards, that if the notes did not produce the 20 they would see him paid the deficiency; and he also gave the plaintiff a draft on his banker, dated one day forward; but on the same day he gave it, he drew his money out of the banker's hands. Huey and Wilcox having become bank

rupt, the plaintiff brought his bill against Edwards, the surety for the residue of the principal and interest due on the bond; insisting that, as Huey had prevailed on him by fraud to deliver up the bond, Edwards was not discharged. But the Lord Chancellor held, that as Edwards was not a party to the fraud, he was discharged by the new agreement, i

The rule that any agreement between the principal parties which is inconsistent with the terms of the original agreement, will discharge the surety, prevails in favour of replevin sureties. Thus, the condition of a replevin bond being for the appearance of the tenant at the next county court, and that he shall prosecute his suit with effect and without delay; an agreement afterwards between the tenant and avowant to refer the suit to an arbitrator discharges the sureties. k

The surety is discharged by the creditor's agreeing to give time to the principal debtor. The cases cited by Mr. Theobald here were, Nisbet v. Smith; Samuel v. Howorth; Governor and Company of Bank of Ireland v. Bursford"; Crickett v. Maghin°; Boultbee v. Stubbs P; and some others.

The Governor and Company of the Bank of Ireland v. Bursford was an appeal from the Court of Exchequer in Ireland to the House of Lords. It appeared that the respondents had executed a bond and warrant of attorney to secure to the appellants the sum of 10,000l., which they had advanced to one Blair. Blair, therefore, was the principal debtor, and the respondents were his sureties. Blair had obtained several extensions of credit after the loan had become due, and at length he became bankrupt, still owing the money. The appellants then entered up judgment against the respondents on the bond and warrant; and being about to levy the debt, the respondents filed a bill in the court below, and obtained a decree of a perpetual injunction to restrain the appellants; which decree the House of Lords affirmed, on the ground that credit had been extended to Blair without the consent of the respond

But merely taking fresh security of the debtor, without any agreement to give him time, will not discharge the surety.

The surety also is not discharged by the creditor's agreeing to give time to the principal, if he authorised or ratified the agree

ment."

And if the creditor merely refrains from the active diligence which he might use against his debtor, his passiveness will not discharge the surety; because the creditor is under no obligation to use active diligence against his debtor. Thus, in Eyre v. Everett, the plaintiff, a surety, filed a bill for relief, on the ground that disputes had arisen five years before between him and the creditors; and that, although he then denied his liability, they had nevertheless suffered that period to elapse without taking means to obtain payment from the principal debtor, who had since fled. But the Court adjudged that these facts proved only passiveness on the side of the creditor, and refused the relief prayed for.

So, too, at law, in an action against a surety, on a bond conditioned for the honesty of one whom the plaintiffs had appointed their collector; it appeared the collector had been in arrear to the plaintiffs for several years, and that his accounts had never been properly examined; and also, that no complaint had been made to the defendant, the surety. With reference to these facts, Lord Ellenborough remarked, that the laches of the obligees in not calling on the principal so soon as they might have done had the accounts been properly examined, was no estoppel at law in favour of the surety; and the Court further ruled, that the surety was not entitled to notice of the default of the debtor. But as the rule established in these cases is founded on the supposition of the creditor being under no obligation to sue the debtor, or to use diligence against him, it does not apply to cases in which the creditor is under such an obligation; and in those cases his passiveness towards the debtor would discharge the surety.

The remaining topics treated of in this lecture we postpone to our next number.

Twopenny v. Young, 3 Barn. & Cres. 208. Tyson v. Cox, 1 Turner, C. C. 395. • 2 Russell, 381.

Naus v. Rowles, 14 East, 510. See also Goring v. Edwards, 6 Bing. 94. London Assurance Company v. Buckle, 4 J. B. Moore, 153.

REVIEW.

405

Dignities, Feudal and Parliamentary, and the Constitutional Legislature of the United Kingdom. The Nature and Functions of the Aula Regis, the Magna Concilia, and the Communia Concilia of England, and the History of the Parliaments of France, England, Scotland, and Ireland, investigated and considered with a View to ascertain the Origin, Progress, and final Establishment of Legislative Parliaments, and of the Dignity of a Peer, or Lord of Parliament. By Sir William Betham, Ulster King of Arms, and Keeper of the Records in the Tower of His Majesty's Castle of Dublin, M.R.I.A. F.S.A. F.L.S. &c. Vol. I. London, 1830. Thomas and William Boone, New Bond Street. It appears that this work was suggested to the learned author by Lord Chancellor Lyndhurst, and we think it has been ably

executed. So much of it as relates to the constitutional legislature of the United Kingdom, and the history of Parliament, must be read with peculiar interest in the present state of public affairs by every one who is desirous for the welfare of his country.

The volume now before us, which is to be succeeded by a second at the end of this year, comprises, in the first chapter, many general observations which will be found particularly valuable. From these the author passes to the ancient councils, parliaments, peers and nobles, of France, from whence he considers the feudal institutions, both of the Saxons and Normans, were borrowed.

Sir William Betham next investigates the nature of the feudal courts in England in the Saxon times, and from the Conqueror down to the reign of Henry III.

He then devotes four chapters to an historical view, with relation to the immediate subject of his book, during the reigns of Henry III., Edward I., Edward II., and Edward III.

The modern peers of parliament are next treated of, and this chapter is followed by another on the constitution of the aula regis.

We are then introduced to the feudal institutions and parliaments of Scotland; and the remaining chapters are devoted to Ireland, its councils and parliaments, from the first statute in Henry III. down to the death of Richard III.

Having thus described the general scope and objects of the work, we shall proceed to make such selections as appear to us most likely to be acceptable to our readers.

406

It seems to have been a common mistake to confound the feudal earls and barons with modern peers; a mistake which arose from their being called by the same names. Sir William Betham contends that, although feudal dignities were introduced by the Normans, the lords of parliament were purely of English origin, and that nobility was not necessarily connected with sitting in parliament.

On these points our author observes: "Writers on the history and constitution of England have fondly clung to the idea, that from, and even before, the Norman conquest, there existed something like a popular, constitutional, and free government, and a representation of the people, which they imagined to have exercised the functions of legislation during the period of Saxon jurisdiction, continued, but in a modified and altered shape, in the reigns of the first eight kings of the Norman race. Even the Lords' Committees were not free from the influence of this national, this patriotic infirmity; for they repeatedly admit they can discover no evidence of a popular constitutional legislation, yet speak of the constituent parts of the legislative assemblies of those times."

"Early in the investigation, I found that many individuals were denominated barons who never could have obtained that title by sitting in parliament, and earls palatine, who did not bear, as titles, the names of the counties of which they were earls; these titles could have no necessary connection with sitting in parliament, and, therefore, earls and barons were not, as such, peers or lords of parliament. This led to a conclusion that the ancient assemblies of barons were different in their constitution and objects to those we now call parliaments, and opened an extensive field for investigation.

"The Lords' Committees, in the following extract, have suggested a reason why the history of the parliaments of England has so long been a matter of difficulty and obscurity:

"One thing has been sufficiently shown by these reports, namely, the danger of going far back into antiquity, and establish rights to the dignity of peer of the realm, not sanctioned by continued usage of later years; and of applying the principles established by modern resolutions and decisions to what has passed in earlier times."

Sir William then proceeds to account for the error which has been fallen into, and makes the following remarks on Mr. Cruise's work on Dignities:

"The feudal system obtained almost all over Europe, with certain local peculiarities; for it accommodated itself to those customs and laws

which existed in the countries where it was introduced, and its principle was to vest in the chief of a district, whether called an earl, baron, or lord, judicial authority, and cognizance of the pleas peculiar to the country. Thus, the Saxon laws, pleas, and customs, found in England at the Conquest, were, after that event, administered in the feudal courts of the Norman barons, although very dissimilar to those of Normandy. Earls (or counts) and barons, existed in countries where legislative assemblies were unknown. In most parts of Europe, individuals were invested by the sovereigns with extensive territories, who, in these seignories, possessed jurisdiction and power, and they had their courts and judges, where they administered justice and law, rendering homage, fealty, and military service, to the sovereign. In the Gallic possessions of the English kings there were earls and barons, who owed them service, while the kings themselves were vassals of, and did homage to, the sovereigns of France, as their liege lord.

"Cruise commences his able and useful work with the common errors, and thus the evidence he produces annuls his conclusions. He says,

"The dignities or titles of honour which exist in England derive their origin from the feudal institutions, and were introduced into this country by the Normans.'

"Having thus laid down as a principle, that the ancient barons were possessed of similar functions as a modern peer of parliament, he calls the assemblies of those barons parliaments, and the laws enacted in those times by the king, acts of parliament; and by thus embarrassing his subject, becomes involved in difficulties from which he attempts to extricate himself by presuming the enactment of imaginary laws, at some period of English history, which he is totally unable to fix upon, or even to guess at, from any indications, or signs of the times, to be found in record or history.

"That feudal or territorial seignories, called counties palatines, or earldoms, and baronies, were established in England by the Conqueror, there can be no doubt; but the names only of the existing dignities are of Norman origin, their nature and origin are altogether of English growth."

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"In page 10., Mr. Cruise calls the councils, directed to be summoned under the 14th chapter of Magna Charta, parliaments, and again, in § 34., he says, that the right of sitting in parliament, was confined to those who held entire baronies, and that before the reign of Henry III. every tenant in capite was ipso facto a parliamentary baron, and entitled to be summoned either by the king's writ, or by the sheriff of his county; yet about that time some new law was made, by which it was established that no person, though possessed of a barony, should come to parliament without being expressly summoned by the king's

writ.'

"Mr. Cruise is compelled to presume a law, in order to account for what his intelligent mind was convinced was true, namely, that no one could attend a parliament unless summoned, and yet not even a reference to any such law is to be found."