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Trial of Issues.-Selections from Correspondence.

will be, accomplished by the Judges under the powers given by the Law Amendment Act, which carries into effect almost all the recommendations of the Common Law Commissioners. There remains, however, the consideration of the alterations as to evidence and costs, on which the Commissioners have yet to make reports.

Resuming our subject, it is important that the under-sheriffs of other counties should, without loss of time, pursue the course adopted in Lancashire, by fixing specific days in each month for the trial of issues under the act, as well as assessing damages on writs of inquiry. Of course the principal towns, with reference to extent of wealth and population, should be selected, and due notice given, so that the complete working of the recent act may be ascertained before the next meeting of Parlia

ment.

SELECTIONS

FROM CORRESPONDENCE.
No. XXXII.

PROVINCIAL LAW LECTURES.

To the Editor of the Legal Observer.
Sir.

407

Permit me to employ your useful channel of communication in briefly submitting a disadvantage to public notice which legal students appear to me to labour under in the pursuit of their studies-I allude to the want of Public Lecturing in large and populous provincial towns. This important method of instruction, even in London, was not so general and comprehensive as of the Law Society, which appears to have set it ought to have been, before the incorporation the example of Public Law Lectures. It appears to me that that society might be the means of introducing into large towns somewhat of its own useful and benencial plans; but in order that it may have the power of efficiSo far we have spoken only of the faci-ently doing so, an alteration in its charter conlities afforded by the Law Amendment Act ferring that power would of course be necesfor the trial of causes not exceeding 201. But it is equally important to advert to the diminution of expense which will be effected by the Assizes Removal Act. In the county under consideration, the assizes will no doubt be adjourned from Lancaster, as the agricultural part of the county, to Liverpool, as the commercial, and Manchester, as the manufacturing portions; and if the same course be pursued in Yorkshire and other counties, where the local circumstances may render it desirable, we see no reason to doubt that every reasonable complaint against the present administration of justice will be speedily removed.

sary.

'The students of the medical profession have their lectures in abundance; while the study of the law is confined to a practical routine of employment, which allows no time for the study of it as a science, and the principles upon which the English laws are founded are left to be colfrequently said by writers upon the subject, that lected from their operation alone. It has been unless the law student be acquainted with the spirit of the laws-unless he comprehends the principles of their foundation, and is able to discern between what is consistent with such principles and what is not, he becomes puzzled at every new case which he cannot find a precedent for, and has no discretion in legal mat

est." But even the acquirement of knowledge in every branch of practical law would be materially facilitated and hastened by means of public lecturing; for it is evident, that although the practice of an office in which a student is placed he ever so extensive, and ever so varied, yet it seldom happens that there is not some branch of practical law which he has not had

ters beyond what is furnished by Positive Law, as he finds it laid down in works of practiceWe would suggest, not only to the un-his knowledge only extending to “italex scripta der-sheriffs of counties, but to the provincial practitioners in general, the expediency of preparing as accurate a statement as possible of the several parts of each county from which the great bulk of actions come for trial; and to present memorials in due time for the adjournment of future assizes to the localities where the parties and wit-an opportunity of engaging in and observing. nesses reside, so that all practicable reduction of expense may be effected.

We refer to another article in this Number (page 405-6), in which the expense of trials at the assizes is further examined; and we invite additional information and suggestions on these subjects, in order that Parliament, as well as the Judges and the profession in general, may be put in complete possession of all the materials requisite to be ascertained before any other extensive alterations are made in our Courts of Justice, and especially before the revival of the Local Courts project.

This, then, would be remedied by public lecturing; as of course a regular systematic examination into all branches of practical as well as elementary and theoretical law could be instituted; and though practice perhaps is not to be thoroughly understood but by engaging in it, yet if the knowledge of the student be by this means materially increased-if he will not, when any new and unfamiliar branch of practice requires his attention, be totally in the dark upon the subject-if he has at least a general idea of the way in which he should act, (putting aside the great advantages which public lecturing affords by furnishing knowledge in elementary law), the end is in a very great de

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Selections from Correspondence.-Remarkable Trials, No. XXVI.

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SPOILED STAMPS UNDER THE NEW ACT.

To the Editor of the Legal Observer.
Sir,

action, Sir Patience Ward was alledged to have falsely and corruptly sworn that there was no mention of the Duke of York or of cutting throats while Pilkington was in the room; that the discourse about the Duke was over before Pilkington came in, and the Duke was not named. The information charged the contrary of these statements.

The following was the evidence for the prosecution :

Mr. Hatch deposed, that Sir Patience did As a private individual, I have most bitterly positively affirm, upon his oath, at the said trial to complain of the hardship imposed, not between the Duke and Pilkington, that Pilkingmerely on myself, but the public generally, by ton did not come in, till all the discourse was the operation of the New Forgery Stamp Act. over about the Duke. And did further depose, I have lately got impressed at the Stamp that there was a discourse about burning the Office, Somerset House, several stamps, but find city by the papists; and Pilkington said, he since that I have no occasion for them. I con- hath burned the city. Whereupon he (Sir Pasequently applied to a stationer, (knowing the tience) took him by the shoulder, saying, exStamp Office never returned money) and re-plain yourself, you mean Hubert, the person quested he would purchase them, as they were useless to me; but he informed me he would be incurring a heavy penalty by so doing, and declined to do so. I have thus between 601. and 70%. worth of stamps in my possession, with the prospect of their not realizing as many G.

pence.

PALACE COURT.-COUNSEL.

To the Editor of the Legal Observer.
Sir,

In all the reforms or alterations of the law, and the practice of its courts and members, which the Lord Chancellor has effected and is effecting, I wish he would just peep into Great Scotland Yard, and annihilate the little Court there, with its monopoly of barristers and at

torneys.

cause;

Last week I had to defend a trumpery slander and the plaintiff having taken in counsel specially, I followed his example; but when the two specials entered, the common barristers said they had a rule in that court that no foreigner could plead there whilst there were any counsel of the court disengaged; the consequence of which was that no less than six counsel were engaged in this petty action! in which the plaintiff could not have recovered more damages than nineteen guincas, that being the whole amount laid in his writ, and one of my counsel merely held a blank brief.

E. B.

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that was hanged for firing the city; and Pilkington answered, yes. And that Sir Patience did positively depose further, that there was no mention made of cutting of throats.

Mr. Wood deposed, that Sir Patience, at the said trial, did affirm positively, or upon his oath, that the discourse concerning the Duke of York was over before Pilkington came in; and that there was no mention of cutting of throats.

Sir James Smith, alderman, deposed, that Sir Patience did positively, or upon his oath, say, at the aforesaid trial, that Mr. Pilkington was not there while they were discoursing concerning going to St. James's, the residence of the Duke, declaring the Duke was not talked of. Whereupon the Chief Justice Pemberton, applying himself to Sir Harry Tulse, Sir Harry made answer, I am very sorry to say it, he was there all the while.

Sir John Peake deposed, that Sir Patience affirmed, either positively, or upon his oath, that Mr. Pilkington was not by, while the Duke of York was mentioned.

Sir Thomas Field deposed, that Sir Patience said, that Mr. Pilkington was not in the room when any thing was spoken relating to the Duke of York.

Sir Francis Butler, who was foreman of the jury, at the trial between the Duke and Pilkington, deposed, that the great question at that trial was, whether the words, "firing the city," related to the Duke of York, or not; and Sir Patience deposed, they did not relate to the Duke of York, and would prove that alderman Pilkington was not in the room, while they discoursed of the Duke of York; that this he swore positively, to the best of his remembrance; he heard no qualification. That after the jury went out of Court, they debated the matter among themselves; and they should have laid a little more weight on the evidence of Sir Patience, if he had not sworn, that when Sir William Hooker took some exceptions at Pilkington's words, and asked, what do you mean? he (Sir Patience) laid one hand upon Pilkington's mouth, and the other upon his breast, and demanded also, what do you mean? and answer was made, Hubert. This

Remarkable Trials, No. XXVI.-Superior Courts: Chancery.

made the jury believe his evidence ought to be set aside.

Sir Harry Tulse, alderman, deposed, that on the 10th of April, according to an order of Court made the day before, they (the aldermen) met at Guildhall, where were present Sir William Hooker, Sir Patience Ward, Sheriff Pilkington, and himself. And Alderman Pilkington said, "he burnt our city, and is come, or will come, to cut our throats." This evidence he, Sir William Tulse, gave at the trial between the Duke and Pilkington, and now averred that it was true. He testified further, that he was asked at that trial, what was the preceding discourse? He answered, it was concerning an order for going to St. James's, or to the Duke of York; some complained of that order, and would have had it re-debated. Whereupon he (Sir Harry) answered, it was too late now, for the Court had agreed to it; and then Pilkington said those words, "he hath burnt our city, and is come, or will come, to cut our throats."

It being demanded of Sir Harry, if the Duke was named? he answered, he could not positively say he was named at that time, for the debate was about the order made, to congratulate the Duke of York, or of going to St. James's; one of them he was sure was named.

The Chief Justice demanding of Sir Harry, who he understood Pilkington meant, when he said, "he is, or will come to cut our throats." Sir Harry answered, in his opinion it was the Duke of York.

Sir William Hooker deposed, that Pilkington, standing at the end of the table, in the room where the aldermen were met, did say, "hath he burnt the city? and is he come to cut our throats?"

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swear at that trial, that Mr. Pilkington was not in the room, when the discourse concerning the Duke of York was mentioned. And he afterwards swore, that when Mr. Pilkington said, "he hath burnt the city," he (Sir Patience) clapped one hand on his mouth, and the other on his breast, and bid him explain himself, who he meant, Hubert? That Sir Francis Butler the foreman, thereupon jogged him (Lee) and bid him take notice of that. And that they inferred Mr. Pilkington must mean the Duke of York; for else why would Sir Patience have stopped his mouth?

The Chief Justice having summed up the evidence, the jury withdrew, and after some time, brought the defendant in guilty; who, having received some intimation that it was intended to set him in the pillory, absconded.

SUPERIOR COURTS.

Court of Chancery.

SPECIFIC PERFORMANCE.-COMPROMISING A

SUIT.

Certain parties to a suit, beneficially interested in the subject matter, desire to compromise it; other parties in the same interest, not insane, nor under age, object: the Court is of opinion that it has jurisdiction to compel them to consent; sed quære.

The bill in this case was filed for a specific performance of a contract for the sale of an estate, under the provisions of a will. The plaintiffs were the trustees for effecting the sale, and had entered into a contract for that It being demanded, if the Duke of York was purpose with the principal defendant, the purnamed? Sir William answered, he (Sir Wil-chaser, who, on being furnished with an abliam) did name the Duke of York to Pilking-stract, objected to the title. A reference to ton, after those words were spoken. And being further asked, if it was plain, Pilkington meant the Duke of York, when he said those words? Sir William answered, nothing could appear more plain, for the discourse was about that matter, and nothing else; and that Sir Patience Ward was there all the time.

The defendant's counsel urged in his behalf, that Sir Patience did not swear any thing positively at the trial, between the Duke and Pilkington; but qualified his evidence, by swearing, as he believed, or according to the best of his memory, and consequently could not be perjured, and brought several witnesses, and some that took notes at that trial, who testified, that Sir Patience frequently made use of qualifying expressions at that trial, viz. as he believed, or remembered. They brought also a great many witnesses to swear, that Sir Patience was a gentleman of a fair character, and not likely to perjure himself.

But after the defendant's counsel had produced all their witnesses, the king's counsel called Sir Francis Lee, who was upon the jury between the Duke and Pilkington; and Sir Francis being sworn, gave the following account of the matter; viz. that Sir Patience did

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the Master was directed, and he certified that the title was good. To the Master's report the defendant took no less than 120 exceptions. The trustees and some of the legatees taking alarm at this prospect of endless litigation, moved for and obtained an order for a further reference to the Master, for the purpose of ascertaining whether it would be fitting and for the benefit of all parties, to compromise the suit, and accept the detendants' offer of 60,000l. for the estate; all the costs to be paid out of the estate. The Master reported in favor of a compromise on those terms; and that report was subsequently confirmed by an order of the Vice-Chancellor.

The present application was an appeal from his Honor's decision. Mr. Attorney-General, Mr. Pepys, and Mr. Lynch, in support of the appeal, submitted, on behalf of two of the legatees interested in the proceeds of the sale under the will, that the Court had no jurisdiction to compel them to assent to the proposal of the defendant. The Court might indeed interpose on behalf of infants or lunaties, but had no power over those persons of full age, cognizant of and capable of taking care of their own interests. The title to the

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Superior Courts: Chancery; Equity Exchequer.

Sir Edward Sugden and Mr. Spence, for all the other parties, said, that the objections to the compromise of the suit came from persons who were entitled to only two parts out of five of the proceeds of the sale. The Court was bound, for the protection of the other parties, creditors and legatees, to affirm the order of the Vice Chancellor. That order was just in principle, and agreeable to the practice of the Court: it would put a favorable termination to this long protracted and expensive suit, which must, if persevered in, ultimately swallow up the whole purchase money.

estate could not be deemed bad, nor the ex- the authority of decided cases, as almost every ceptions to it much to be dreaded, when the construction must depend upon the circumdefendant, notwithstanding his exceptions, stances under which the will was made, and in was willing to give 60,000l. for it. The de- the forms of expressions used by the testator cision of his Honor, being contrary to the to declare his intentions. His Lordship had principles of this Court, could not be sus-been very careful in his observations in the tained. case, as he wished to impress on all persons, professional and non-professional, the necessity of being very careful in the selection of the words by which they expressed their intentions, in disposing of the property of themselves or of their clients. The substitution of an "or" for an "and," or vice versa, or the omission of a single word, such as "besides," and other like particles, which are sometimes used without any meaning-mere expletives, but too frequently lead to a vast deal of misconstruction, and perhaps to a complete violation of the intentions of the testator. It were much to be wished, that the legislature would authorize The Lord Chancellor postponed his judg- a formula of expression, which would accomment, intimating that he considered it a most plish certain objects, and which would take distressing circumstance that the order was from the Courts all power of putting conever appealed from. He would look into some structions on the language of testators; but cases; and desired to be furnished with pre- until that desirable object was accomplished, it cedents, if any could be found, in support of was the duty of professional men to look well the objection as to want of jurisdiction. Un-to the language they used in drawing up testaless this Court had such power as to compel the acceptance of an offer of compromise, he did not see how the property of creditors and legatees could be protected from the effects of ruinous litigation.

His Lordship adverted to this case on the last day of his sittings before vacation, and was understood to say that he would not disturb the Vice Chancellor's order, as no precedent was shewn against it.

Braizier v. Hudson. Sittings in Lincoln's Inn, Aug. 20th, 1833.

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Suggestions for drawing and perusing wills: the construction to be put on them depends on the circumstances of the testator and on the words used: the expediency of fixed legislative forms.

The principal question in this suit, and that to which the following decision applies, arose upon the construction of a will. In one part of the will, a legacy of 10,000l. was given to a party, and in another part, a codicil, a legacy of 90,000l. was given to the same party. The question was, whether the testator intended the latter legacy to be cumulative, or substituted for the former.

The Vice Chancellor was of opinion that the legacy was cumulative, and not substitutional.

The Lord Chancellor, upon appeal, affirmed the decision of the Court below, after hearing the matter fully argued, and taking time to consider his judgment.

His Lordship, in the course of his judgment, entered into a minute examination of the expressions used by the testator, in order to shew that it was clearly his intention to make the legacy cumulative; and said, that on questions of this sort, but little light could be drawn from

mentary dispositions; as he was not quite sure, notwithstanding the anxiety of Courts to do justice, but that testators, if they could rise from their graves, would be astonished at the construction of their wills, and the effect given to their intentions.

Grey v. Sharpe and others. Sittings at Lincoln's Inn Hall, July 6, 1833.

Court of Equity Exchequer.

TRUSTEES.-SOLICITOR.

Held, that a solicitor who accepts a trust under a will or settlement, is not entitled to charge for work and labour done by him as a solicitor in executing the trust.

The question raised, and now decided in this case, was, whether a trustee or executor, who is a solicitor, is entitled to charge for business done in the trust as a solicitor. A minor question was, whether, if not entitled to make such charges, he was entitled to the value of stamps and parchments of a deed, prepared with the approbation of his co-trustees, but never executed.

In the first argument on these points, the case of Turner v. Hill, lately decided by his Lordship, but not yet reported, was cited against the solicitor's right to charge; and the cases of Baker v. Grosvenor, (cited from MS. notes of Mr. Lovat), and Carmichael v. Willson, 4 Bli. 145, decided in the House of Lords, were cited on the other side.

The questions having again come on for further argument on a succeeding day:

The Lord Chief Baron observed, that it was the duty of a trustee to watch over the solicitor in all proceedings connected with the trust, and to take care that he did only that which was proper, and that his charges were not unreasonable; he was also bound to tax the costs of the solicitor, if necessary. The trustee be.

Superior Courts: Equity Exchequer.

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is not allowed to charge for business done by him.

The Lord Chief Baron.-A trustee generally is not allowed to make any charge for his labour in the execution of the trust; he might, if he did not like the office, decline it; but if he accepted it, the law of this Court, and, indeed public policy, prohibited him from making any advantage of it: that being the law generally, the question now is, whether a trustee, being a solicitor, can charge for his labour as such, in exception to the general rule.

His Lordship having taken time to look into cases, delivered the following judgment on a subsequent day.

ing appointed for this duty, the question was, whether a Court of Equity would allow a trustee, acting as an attorney to the trust estate, his charges for work and labour in that capacity? Mr. Lovatt said, there had lately been two cases of this nature decided in the Court of Chancery; the first of which came on before Sir W. Grant, and was this: A gentleman of the name of Grosvenor, who was a partner in the house of Wadeson, Barlow, and Grosvenor, solicitors, was appointed a trustee under a deed, which was a trust to sell a certain estate, to pay an auctioneer a sum of money owing to him by the gentleman executing the deed, and the expenses of the conveyance. The house, of which Mr. Grosvenor was a partner, trans- The sole question to be decided is, whether acted the business as solicitors for the trust. or not a solicitor, who was an executor or The case came on before Sir W. Grunt; and trustee, is entitled to be paid his bill of costs it was then contended, that on the princi- for business done by him as an attorney, in the ples of public policy, they could not charge execution of his trust. There is no point more for business so transacted, inasmuch as Mr. clearly established as a general rule, by the case Grosvenor was a partner in the house; for of Robinson v. Pott, and other decisions, than that if a trustee so circumstanced was per- that an executor or trustee is not entitled to mitted to act, there would be no security for be paid for his trouble. If the accounts of the the trust. Sir W. Grant said, that he knew deceased were complicated, and the executor of no authority in which it was ever held, that took upon himself to settle and arrange those if a trustee, being a solicitor, transacted such accounts, although it might take up much of matters of business, in respect of which it was his time and attention, the principle of equity necessary to employ a solicitor, he might not was, that he was not entitled to compensation be allowed such charges, unless it was shown for his time and trouble; if he chose to employ that they were improperly made. In conse- an accountant to settle these accounts, for the quence of that, Mr. Grosvenor was allowed expenses so occasioned, he was entitled to be his charges in respect of the business transacted remunerated out of the estate. The principle by the house of which he was a partner. There is this; it is the duty of an executor and a was another case of this nature that came be- trustee to be the guardian of an estate, and fore the Vice Chancellor about ten days since; to watch over the interests of the estate comit was that of Daniel v. Goldson (not yet report-mitted to his charge; if he be allowed to pered), in which the defendant was a trustee under form the duties of the estate, and to claim a will, which directed the estates to be sold; he compensation for his services, his interest was also a solicitor, and acted as such in all those would then be opposed to his duty and as a matters of business in which it was necessary to matter of prudence, the Court did not allow employ a solicitor; he made up his accounts, and the executor or trustee to place himself in that those charges were disallowed. It was contend- situation: If he chose to perform those duties ed by Sir E. Sugden, for the solicitor, that the or services on that estate, he was not entitled Master, in taking the accounts, had not allowed to receive compensation; the case applies as the sums charged by this gentleman with respect strongly to an attorney, as to that of any other to business so transacted; in consequence of person; for if an attorney, who is an executor, which, they came into Court to have the mi-performs business that was necessary to be nutes corrected, by introducing other words for the allowance of such charges, when Mr. Lynch, who was for the cestui que trust, opposed the alteration, and stated that the object of it was to get an allowance in respect of business which was transacted by the trustee in character of a solicitor; which, upon the principles of public policy, he could not obtain, inasmuch as it was the duty of the trustee to watch over the solicitor. The Vice Chancellor said, he was not aware of any thing which prevented atrustee, being a solicitor, from being paid for business done by him in that character, if it was necessary for a solicitor to be employed, and his charges were such as would be proper, if the business had been done by another solicitor.

Mr. Duckworth said it was of great importance that the point should be decided; it was the general impression among the members of the profession, that in such cases, a solicitor

transacted,—if this attorney, being an executor, performs those duties himself, he, in my opinion, is not entitled to be paid for the performance of those duties: it would be placing his interests at variance with the duties he had to discharge. It was said that the bill might be taxed, and that this would be a sufficient check; I am of opinion that it would not; the estate had a right, not only to the protection of the taxing officer, but also to the vigilance and guardianship of the executor, in addition to the check of the taxing officer. There might be cases (I do not speak with reference to the present case) where a trustee, placed in the situation of a solicitor, might, if he were allowed to perform the duties of a solicitor, and to be paid for them, be so placed that he might find it very often proper to institute and carry on legal proceedings, which he would not do, were he to derive no emolument from them, and were to employ another person. In

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