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dlesex.-John T. J. English, Strand, Middlesex, captain in At the County Court of Monmouthshire, at MONMOUTH, the 1st West India Regiment: in the Queen's Prison.-Mor.
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INSOLVENT DEBTORS' DIVIDENDS. peth-terrace, South Hackney, Middlesex, cardboard maker: 1 Hugh Doherty, Melina-place, St. George's fields, Southin the Debtors Prison for London and Middlesex.-Thomas wark, Surrey, cornet on half-pay in her Majesty's late 23rd Worsley, Charles-street, Horsely down, Surrey, patten maker : regiment of Light Dragoons : 208. in the pound.-Morris in the Queen's Prison.--John Stockbridge, Hamilton-mews, Paddon, Albany-road, Camberwell, Surrey, clerk in the Ge. North Maida-hill, Middlesex, cabriolet driver: in the Debtors neral Post-office: 58. 6d. (making 188. 6d.) in the pound. Prison for London and Middlesex. - Alphonso Florencio John Smith, High-st., Poplar, Middlesex, inspector of coal Notley, Clarence-road, Kentish-town, Middlesex, out of em- ships in the port of London : 58. 9fd. in the pound.-Godfrey ployment : in the Queen's Prison.-Richard Deacon Dodge, Fothergill, Northampton-place, Old Kent-road, Surrey, clerk Cheapside, City, out of employment: in the Queen's Prison. to a corn chandler : 38. 10d. in the pound.-Edwin Firth, - John Becks, Waterloo-street, Camberwell, Surrey, out of Oldham, Lancashire, licensed victualler: 48. 3 d. in the employment : in the Gaol of Surrey.-- Joseph Smith, Shef. pound. field, Yorkshire, tea dealer and draper: in the Gaol of Apply at the Provisional Assignees' Office, Portugal-street, York.- Frank Beatson, Sheffield, Yorkshire, brass turner : Lincoln's-inn-fields, London, between the hours of il and 3. in the Gaol of York.-Wm. Wigglesworth, Bradford, Yorkshire, hairdresser : in the Gaol of York. - John Thorpe,
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| rence being paid to the bishop's opinion in spiritual The Scale of Charges for Advertisements will in future be matters, and to that of the lay judges in temporal, as as follows :
£ 8. d. at the present day, when, at times, Maule, J., sits by For 2 lines or under .....
the Lords Justices Knight Bruce and Turner to ad..... 0 3 0 minister law as well as equity. ........ 0 3 6
The ecclesiastical court, however, was separated 0 4 0
from the civil by William the Conqueror in order to And so on, at the rate of 6d. per line.
gratify the foreign clergy, by whom he was supported. ** A discount, proportioned to the number of repetitions, will be allowed upon all Advertisements ordered for three or
| He prohibited any spiritual cause from being tried in more insertions.
the secular courts, and commanded the suitors to appear
before the bishop only, whose decisions were ordered LONDON, FEBRUARY 11, 1854.
to conform to the canon law. Henry I, among other
restorations of the law of Edward the Confessor, revived It is curious to observe society, in an advanced and this of the union of the civil and ecclesiastical courts. artificial state, reverting by degrees to the primitive The clergy, however, did not relish being put on a level institutions of its ancestors; the movement, apparently with the profane laity, and on the accession of Stephen retrogressive, is, in fact, progressive, for it casts aside they brought about a dissolution of the newly-effected products which have remained, although the reasons union. About this time the contest began between the which led to them have long since ceased. Such a laws of England and those of Rome, the temporal courts process is visible at the present day in several branches adhering to the former, and the spiritual adopting the of our jurisprudence. We pass by the instance of latter: “this,” says Blackstone,“ widened the breach county courts, which, flourishing in the time of Alfred, between them, and made a coalition afterwards impracfell into comparative desuetude for centuries, but are ticable, whịch probably would have been effected at the now invested with almost ancient jurisdiction. We general reformation of the church.” pass by also the system of pleading, once concise and This separation being established, the only remaining simple, then subtleised and elaborated, and now sim- question would be, what causes were spiritual or eccleplified once again. The instance which we select, in siastical, as pertaining to the “regimen of the soul ?" preference to others, is the proposed transfer of the The answer would determine the tribunal to which probate and divorce jurisdiction of the ecclesiastical tri- they should be referred. We propose to consider how bunals to the temporal courts of our realm. The his-causes testamentary and matrimonial, with which we tory of this jurisdiction may be briefly traced thus:- are at present interested, were brought within the cate
In the time of our Saxon ancestors there was no dis-gory. As to causes testamentary, they seem to have tinction between the lay and the ecclesiastical juris- been first given to the clergy at the time of the last disdiction; the county court was at once spiritual and solution of the union of the lay and spiritual courts in temporal, and the rights of the church and the laity Stephen's time*, and it came about in this manner. were ascertained at the same time and by the same The foreign clergy were early ambitious of this judges. The whole man was thus provided for by one branch of power, but their attempts to assume it on tribunal, instead of taking his conscience to Doctors' the continent were effectually curbed by the edict of Commons, and his body to Westminster Hall; he was the Emperor Justin, (Cod. 1, 3, 41), which restrained recognised as a being possessing a duplex nature, and the probate of testaments, as formerly, to the office of having interests in two worlds to provide for at one and the magister census; for which the Emperor subjoins the same time. It was a hard case indeed if neither this reason — “Absurdum etenim clericis est, immo the bishop nor the sheriff could hit the offender; the etiam opprobriosum, si peritos se velint ostendere disone commanded bailiffs and the other ecclesiastical ceptationum esse forensium.” Afterwards, however, censures, and were thus prepared either for the tender by the canon law, it was allowed that the bishop might conscience or the hardened corpus. For this purpose compel, by ecclesiastical censures the performanee of the bishop and the ealderman or earl, or his deputy the a bequest to pious uses. This made a legacy to such sheriff, used to sit together in the county court, and had there the cognisance of all causes, a superior defe
uses a spiritual cause, and afterwards intestacies were unravelled and removed by these their spiritual guides. brought under the same denomination, when Henry I | Yet, abstracted from this universal influence, which directed that the personal property of an intestate affords so good a reason for their conduct, one might should be divided for the good of his soul; to which
otherwise be led to wonder that the same authority
which enjoined the strictest celibacy to the priesthood King Stephen added, “ ecclesiæ consilio*.” By the old
should think them the proper judges in causes between law, the King is sometimes said to have been entitled man and wife. These causes, indeed, partly from the to seize upon the goods of an intestate, and that this nature of the injuries complained of, and partly from privilege was granted by him as a franchise to many | the clerical method of treating them, soon became tou lords of manors : and that afterwards, in favour of the gross for the modesty of a lay tribunal*.”
If the spiritual court proceed to call a marriage in church, the prelates were invested with this branch of
question upon grounds that render it merely voidable, the prerogative, which was done, says Perkins, because after the death of either of the parties, the courts of it was intended by the law that spiritual men are of common law will prohibit them from proceeding, bebetter conscience than laymen, and that they had cause it tends to disinherit and bastardise the issue, more knowledge what things would conduce to the who cannot so well defend the marriage as the parties benefit of the soul of the deceased t. And as the bishop themselves when living might have done. The sacrahad thus the disposition of the intestate's effects, the mental nature of marriage was completely destroyed, probate of wills followed, for it was thought just and in the eyes of the law, by stat. 6 & 7 Will. 4, c. 85, natural that the will of the deceased should be proved allowing marriages to take place in a registered build. to the satisfaction of the prelate, whose right of dis-ing, before the registrar of the district. tributing the chattels was effectually superseded there. Thus a review of the history of these two branches by. This power, obtained by encroachment, was of ecclesiastical jurisdiction shews, first, that they are grossly abused, until at length the ordinary was com- of a character naturally and properly cognisable by the pelled to grant administration to the next of kin. temporal courts : secondly, that the reasons on which Blackstone remarks on the strangeness of ranking they were founded have ceased to exist; the ordinary testamentary causes among matters of a spiritual | is no longer entitled to the goods of an intestate; marcognisance, as they are certainly of a “mere temporal | riage is not regarded by the law as a sacrament, but nature," and states, that in almost all other (even in simply as a civil contract: and, thirdly, that the temPopish) countries all matters testamentary are under poral courts do still exercise some jurisdiction over the jurisdiction of the civil magistrate.
these ecclesiastical courts, such as prohibiting them Although the spiritual courts have exclusive juris- from exceeding their powers, or even declaring a will diction in establishing the will, yet the courts of void which they have declared proved. We have purequity have a concurrent jurisdiction with them in posely confined our remarks to these two matters, construing it; and it has happened that this jurisdic- causes testamentary and matrimonial; but we believe tion has been exercised in a way to render the instru- it will be found that objections of almost similar force ment, of which probate has been granted, ineffectual may be raised against every part of the ecclesiastical as a will. (See Gawler v. Handerwick, 2 Cox, 16; 1 jurisdiction in this country as exercised in the spiritual Thornton v. Curling, 8 Sim. 310). And where a pro- courts. bate has been obtained by fraud on the next of kin, the Court of equity will interfere; and since Lord Not
EXTRACTS FROM THE SECOND REPORT
OF THE CHANCERY COMMISSIONERS ON relief to legatees. It should also be remembered that
THE JURISDICTION IN TESTAMENTARY the jurisdiction of spiritual courts is confined to goods
MATTERS. and chattels, and a devise of lands must be proved by the will itself. Marriage, although in the nature of a civil con
As to the constitution of the proposed testamentary tract conferring civil rights, was brought within courts court, the Commissioners report as follows: spiritual by being made a sacrament. This was soon “ We recommend that the court to be established after the separation of the courts|l; and the deter- should be called Her Majesty's Court of Probate, mination of questions of legitimacy and bastardy fol- and should hold its sittings at such place, in London or lowed almost as of course. Blackstone, (3 Com. 92), Middlesex, as your Majesty shall appoint; and that this speaking of this assumption of matrimonial causes by court should be a superior court of record, and that the church, says, “ In the hands of such able politi- the proceedings therein should be in your Majesty's cians, it soon became an engine of great importance name. to the Papal scheme of an universal monarchy over “ We consider, that, from the nature of the subjects Christendom. The numberless canonical impediments to be brought before the Court, there should be but that were invented, and occasionally dispensed with, one judge, whose decisions should be subject to appeal. by the Holy See not only enriched the coffers of the The mode and course of appeal we shall notice in a church, but gave it a vast ascendant over princes of subsequent part of this report. all denominations, whose marriages were sanctified or “ We recommend that the qualification of the judge reprobated, their issue legitimatised or bastardised, and should be a standing of ten years as advocate of the the succession to their thrones established or rendered Court of Arches, or serjeant or barrister at law, and precarious, according to the bumour or interest of the that the judge of the court should be appointed by the reigning Pontiff, besides a thousand nice and difficult Crown, and should hold his office during good behascruples with which the clergy of those ages puzzled viour, and be removeable upon an address by both the understandings and loaded the consciences of the Houses of Parliament. In order to provide for the inferior orders of the laity, and which could only be
* The italics are ours, but are scarcely required, to mark may be obserted that the disposition of intestates' the sly satire of the commentator, who truly adds, in a note, goods per visuomecelesiæ," was one of the articles confirmed “ Some of the impurest books that are extant in any language to the greates by King John's Magna Charta.
are those written by the Popish clergy on the subjects of P T BY Comby Sweet, 494, note 4, the position that matrimony and divorce." The morbid state of a man devoted the rewaeree lid this prerogative is controverted.
to celibacy, and speculating on marriage and divorce, is only T13 BI. Cod. 05
too apparent from the Disputationes de Sancto Matrimoni Reeves (istory of the English Law, vol. 1, p. 72. Sacramento, by Sauchez, and similar works.
ccasional illness of the judge, we think that power there be no longer any distinction as to bona notabilia, hould be given to the Crown to appoint some other and country courts continue to exist, this source of jerson to act temporarily as judge whenever the occa- protection will be lost. ion should arise; and the judge should have power, “It is, we think, evident that this protection would luring vacations and on other special occasions, to ap- be best afforded to the public by a central court in point, with the consent of the Lord Chancellor, some London. The skill and vigilance required to guard ompetent person to transact the necessary business against frauds or mistakes will, we think, be more ncident to the passing of probates and letters of admi- certainly possessed and applied by officers in London Listration, which is now transacted by surrogates, and under the immediate control of the judge, to whom uch other business as may require immediate at they will have the opportunity of applying on any ention.
emergency, and to whom they will be immediately “We think that the officers of the court should be responsible. If the convenience of the public would ppointed by the judge, with the approbation of the permit it, we should desire that this protection should ord Chancellor; and that the subordinates of these be afforded in all cases; but we think that this is not fiicers should be appointed by the officers themselves, the case, and that the more perfect security afforded by vith the approbation of the judge. In order, however, the transaction of the testamentary business in London hat the new Court may have the immediate assistance is not in all cases imperatively required. f officers trained in the performance of similar duties, “ The danger to be apprehended is from fraud or ve think that it will be convenient that the present mistake, and this danger principally arises in cases of leputy registrars of the Prerogative Court of Canter- funded property. In the agricultural districts, where pury, and the assistant clerks of seats, and such other the continuance of the present local accommodation is fficers of that court as are engaged in and competent most desired, the property of the deceased, where it is o the performance of active duties, should become of small amount, rarely includes money invested in the fficers of the Court of Probate, and perform such public funds, or other similar securities, of which an luties as shall be assigned to them respectively by any immediate disposition can be made by virtue of the general rules or orders of the Court.
probate or letters of administration. “Subject to this provision, we think that the officers “ We think, therefore, that in cases of small proof the Court of Probate should be selected from advo- perties the transaction in London of the business of obates or barristers, or persons practising as proctors or taining probate and letters of administration may reaolicitors, or from other competent persons now engaged sonably be dispensed with; and the arrangement which n the performance of active duties in some court exer- we propose will, to a great extent, unite the advanising testamentary jurisdiction.
tages of local and central testamentary courts. “The judge and the principal officers of the Prero-! We recommend that district offices, through which ative Court of Canterbury are at present paid wholly probates or administrations may be taken out in cases jy fees. We think that this should not be the case in of small properties, should be established in different he Court of Probate, but that the judge and officers of parts of the country as branches of the Court of Probat court should be paid wholly by salaries.
bate, each of such districts to comprise a county or "The deputy registrars of the Prerogative Court and counties, or some known division of a county or ome of the other officers of that court are now allowed counties." o practise as proctors; but we are of opinion that no
(To be continued). fficer of the Court of Probate should be allowed, lirectly or indirectly, to practise.
" It is scarcely necessary to say, that we strongly COMMISSIONERS TO ADMINISTER OATHS lisapprove of the duties of any of the officers of the
IN CHANCERY. ourt being discharged by deputy. “We think that the registrars of the court in London
The Lord Chancellor, under the powers of the 16 & nd commissioners in the country should be empowered 17 Vict. c. 78, intituled “ An Act relating to the Apo take affidavits, and transact other formal business
pointment of Persons to administer Oaths in Chancery, low performed by surrogates.
and to Affidavits made for Purposes connected with “The establishment of a single court, holding its Registration,” has appointed the following gentlemen ittings in London or Middlesex, for the transaction of to be Commissioners for administering Oaths in Chanhe whole of the testamentary business of England,
cery :bay probably be objected to under the apprehension of
To be London Commissioners. ncreased expense and inconvenience to persons residing n the country. We have, indeed, reason to believe,
Samuel Lepard, 9, Cloak-lane, City. hat in cases of small properties such persons would
John Satchell, 6, Queen-street, Cheapside, City. lot be satisfied with any measure which would deprive
David Gray, 20, Lincoln’s-inn-fields. hem of the means they have hitherto enjoyed of re
Nicholas Gedye, 14, George-street, Mansion-house, City. orting to courts within their own districts for probates
John Pike, 26, Old Burlington-street. ind letters of administration. We therefore proceed to
Thomas Lótt, 43, Bow-lane, Cheapside, City. consider this objection.
Charles William Hird, Portland Chambers, 75, Great “We have already pointed out that the possession of
Titchfield-street, and 1, Hartland-terrace, Kentishprobate or letters of administration enables a persone
town-road. at once to obtain and dispose of all the available per
| George Peter de Rhe Philipe, Gray's-inn-square, and jonal estate of the deceased. Stock to any amount
4, Lloyd-street, Lloyd-square, Pentonville. may be sold in a few hours, and the produce irreco
Simon Dunning, 25, Austin-friars, City. Ferably lost, without the knowledge of the persons
Thomas Hornby, 31, St. Swithin's-lane, City. really interested. It is indispensably necessary, there
Francis Smedley, 40, Jermyn-street, St. James's. fore, to provide the utmost practicable protection to the
Robert John Child, 11, Old Jewry, City. public against fraud or mistake.
Josiah Wilkinson, 2, Nicholas-lane, Lombard-street. "The state of the law as to bona notabilia has
To be Commissioners in England. hitherto secured this protection to the public to a very John Parry Jones, Denbigh. great extent, a prerogative probate or administration John Braddock Walmisley, Marple, Stockport, Cheshire. having been resorted to in all cases in which the de- John Brown Twist, Coventry. Deased was possessed of any funded property ; but if Frederick Viel Jacques, Bristol.