case for specific performance? Can he do so before judgment has been obtained in the action? What effect will the claim for a mandamus have upon costs, where the other claim falls within the county court jurisdiction?

As to the awarding the peremptory writ, the Courts will doubtless exercise a discretion in the matter analogous to that exercised in equity, and will not therefore award it where the injury may be fully compensated for in damages, or where specific performance would be unduly oppressive.

In the absence of rules and forms on this subject, we may suggest the following indorsement on the writ and copy:

"Take notice, that the said A. B. intends [also] to claim a writ of mandamus commanding the defendant to [accept from the plaintiff a lease of a house for twenty-one years, at the rent of 50l. per annum, pursuant to the defendant's agreement with the plaintiff, dated the day of —, a. D. 1854.]”

The declaration may, it is submitted, be as follows:"[Venue], to wit.-A. B., by C. D. his attorney, sues E. F. For that by a certain agreement, made between the plaintiff and the defendant, it was agreed that the plaintiff should grant to the defendant, and that the defendant should accept, a lease of a house for twentyone years, from the day of A. D. 1854, at the yearly rent of 50l.; and it thereupon became the duty of the defendant to accept the said lease; and the plaintiff says that he has performed all things on his part to be performed, and that at the time of the commencement of this suit he was, and still is, personally interested in the fulfilment of the said duty by the defendant, and that the defendant has refused to fulfil the same, although the plaintiff demanded such fulfilment a reasonable time before the commencement of this suit, and that the plaintiff has sustained damage by reason of the defendant's non-fulfilment of such duty; and the plaintiff claims a writ of mandamus commanding the defendant to fulfil the said duty by accepting the said lease from the plaintiff.”

Review.

The Parish: its Obligations and Powers; its Officers
and their Duties; with Illustrations of the Practical
Working of this Institution in all Secular Affairs.
By TOULMIN SMITH, Esq., of Lincoln's-inn, Barrister-
at-Law. 12mo., pp. 624.
[Sweet.]

(Continued from p. 401).

Laud on the English Constitution have been renewed even in the present day, and with a greater impunity, the Churchwardens Election Bill, the device of the than attended Laud's exertions, by such measures as present Bishop of London, some of the greatest of Eng lish judges-Chief Justices Hale and Holt, and Lord Hardwicke-held, that of common right the choosing church wardens belonged to the parishioners, though (in some parishes) the incumbent had got the power of of the minister to occupy the chair at vestry meetings electing one churchwarden by custom; that the claim as well as to be head of the parish, is illegal, Lord Hardwicke saying, "I do not find any resolution, or even opinion, to give the vicar a right of presiding. There is, indeed, a notion that he has a right to preside, but that has taken its rise from special* vestries. whole assembly, where all are [that is, before the We must resort to the common right, which is in the people were robbed of their common-law right by Sturges Bourne's Act] upon an equal foot." (Stoughton v. Reynolds, Lee, t. Hardw. 276; Str. 1046). And Lee, J., saying, "The parson, perhaps, has a right of sitting [as a member of vestry] from his freehold in the church; but I do not think that can any way give him a greater right or authority than any of the other members of the assembly." (Per Lee, J., Fort. 172).

Beginning with the Year Books, in which there are several cases of the highest interest and value relating to parish government, but not one which affirms the of the parish, or to preside at parish meetings, or even right of the priest or minister to assume the headship to be considered an integral part of the parish, but where, on the contrary, all these modern assumptions are distinctly negatived, Mr. Toulmin Smith proceeds to shew that neither the canons nor the statutes, nor even the ecclesiastical writers themselves, give any counte great minuteness the case of Wilson v. M'Math, (1819), nance to these pretensions. Finally, he examines with and shews that that case is not law, but that the judg ment given by the Ecclesiastical Court in that case cannot fail to recall a passage in Ayliffe's Parergo, (p. 186), where he speaks of some who "sit as judges without any knowledge of the law." in our ecclesiastical courts, and determine law-suits,

One characteristic feature of this work is the consis tency with which the relative importance of the common and statute law is throughout developed and insisted on, as well as the ignorance of the common law now often exhibited by the Legislature.

We are by no means unqualified admirers of the wisdom of Coke; yet he was not quite so great a fool as Bentham and some of his echoes represent him as being. In the preface to the fourth part of his report, Coke says that the artist in law-making should set! himself to know the several kinds of the municipal laws of his own proper nation, for the innovation or change of some laws is most dangerous, and there is less peril in the alteration of others-to understand what the true sense and sentence of the laws now standing is, and how far forth former laws have made provision in the case that falleth into question."

There is probably no part of this book which displays more learning and ability than the chapter (chap. vi) on "the position of the parson or minister in respect The truth of the proposition which we have marked to the affairs of the parish." Mr. Toulmin Smith shews, in italics we hardly think that any man, lawyer or by a minute and searching examination of the autho- non-lawyer, parliament man or non-parliament man, rities, the illegality of the attempt to assume the par- minister or minister's man, will be hardy enough t son or minister to be head of the parish and president dispute. Another proposition, which may be open to of all parish meetings. He shews that parishes are a more controversy, at least as to its exact limits, is, tha: secular, not an ecclesiastical, division, and "were insti- a large proportion of the modern statute law is made tuted for the ease and benefit of the people, and not of without a competent knowledge, on the part of the the parson." (Per Holt, C. J., 3 Salk. 85). He ex-framers of such law, "how far forth former laws have poses the illegal attempts of Laud and others to render made provision in the case that falleth into question." the body of the clergy a mere sort of state police, and the flagrant ignorance or contempt of the laws of England exhibited on various occasions by the Ecclesiastical Courts. He shews, that notwithstanding the attacks of

*The Select Vestries Act, however, (59 Geo. 3, c. 12 expressly directs the majority to choose a chairman, though the minister is one of the select vestry.

There are statutes passed every session of Parliament, dding a yearly increase to that huge, confused, contraictory mass, of which no candid man even pretends to now the contents, some of them creating a vast mahinery of functionaries, under the pretext of providing emedies for cases which the laws already in existence, nd which had been in existence for hundreds of years, ad made ample provision for.

lawyers at least may no longer have any excuse for being ignorant of its provisions.

In speaking of a bill introduced into Parliament in the session of 1854 by Mr. Evelyn, the member for West Surrey, declaratory of the power that has always been inherent in parish vestries to take measures for all things that are for the common good, Mr. Toulmin Smith has thus characterised the spirit and tone of its official opponent:

"The official opponent of this bill shewed himself not only ignorant of, or resolved to treat with contempt, common-law and constitutional principle, but even ignorant who those are that attend and have votes at vestries. He insulted the common sense of his hearers and the public by talking of this bill

Under such a system, is it surprising that the law hould be uncertain, that it should be absolutely unnown even to lawyers, or that more doubts should rise upon the statute than upon the common law? We have on a former occasion cited Bacon's opinion o this effect. Coke's opinion agrees with it. He says, Preface to 2 Rep.), "The greatest questions arise, not pon any of the rules of the common law, but often-giving powers to 'paupers,' and by ridiculing the idea imes upon acts of Parliament overladen with pro- of vestry-appointed bodies having a corporate capacity. risoes and additions, and many times on a sudden "Though Under-Secretary of State, he must be prepenned or concocted by men of none or very little 'sumed to have been altogether unaware of the existudgment in law." And also, "If acts of Parliament'ence, or ignorant of the provisions, as already stated,

of the Highway Act, the Lighting and Watching. Act, Gilbert's Poor-law Act, the Burial Act of 1852, and many others, as well as even of the simplest rules of law as to the choice of churchwardens. He attempted, moreover, to represent that a committee ap

were after the old fashion penned, and by such only as perfectly knew what the common law was before the naking of any act of Parliament concerning that mater, as also how far forth former statutes had provided remedy for former mischiefs and defects discovered by experience, then should very few questions in law arise,pointed to do a specific work only, subject to rules to

and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do."

Moreover, in our own time we find, even in official lawyers, ignorance of the real nature and extent of the common law of England as great as that of those who are content to accept Bentham's witticism* as a veracious picture of the customs, the free and natural growth of the experience during many ages- more than a thousand years-of the most free and most practically sagacious race of men recorded in history. What has Prussia, what has France, what has Belgium got from her code, that they who live under the common law of England should exchange their common law, with all its defects, for a code manufactured even by the hands of such a philosopher as Bentham, after such models, or after others floating in the philosophic mind? Let it be a lesson of humility to the philosophic mind to reflect, that the principle of representative government, for want of which all the ancient experiments in government were failures, after escaping the inventive faculty of the greatest philosophers of antiquity, was discovered by a rude but practically sagacious baron of the dark ages. And there are many other parts of the common law of England which, though a man of wit, like Bentham, might see some ridiculous points in them, contain pieces of intellectual machinery surpassing in practical ingenuity the mightiest achievements of a Plato's or a Newton's thought. Laud and Strafford entertained an intense hatred for the common law. They were never tired of abusing it, and they had cause. While it existed, neither ecclesiastical nor civil tyranny could have uncontrolled dominion in England. There are men in the present day with intentions as hostile to the common law, and for somewhat similar reasons, as Laud and Strafford, and whose pernicious designs demand as vigilant an attention from those who are opposed to all such designs. For all these reasons, it appears to be of the first importance, that, by such means as have been indicated in former articles, the common law should, without further loss of time, be put into such a shape, that

be laid down by vestry, and which committee cannot 'raise or spend a penny without the express consent of the vestry, has arbitrary powers. At the prospect of such powers he professed to look with horror. 'Let the Board of Health, or any other body of irresponsible functionaries, arbitrarily order and tax-he 'does but burn with zeal to enlarge their powers in that way. But for any parish to think of doing anything for itself, and of itself paying for it as it thinks 'right-this, indeed, is not to be endured." (P. 222).

* "When a man has a dog to teach, he falls upon him and beats him; the animal takes note in his own mind of the circumstances in which he has been beaten, and the intimation Saturday thus received becomes, in the mind of the dog, a rule of the Monday.. common law." (Bentham's Rationale of Judicial Evidence, Tuesday. vol. 2, p. 475). Wednesday

Appeal Motions.

At Lincoln's Inn.

3

{

Appeal Motions and Petitions in Lu nacy and Bankruptcy.

Appeals.

Short Causes, Short Claims, & Causes.

EQUITY CAUSE LISTS, MICHAELMAS TERM,

1854.

The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occuPlens, Demurrers, Exceptions, Causes, pied:-A. Abated-Adj. Adjourned-A. T. After Term-4.

Claims, and Further Directions.

Petitions (unopposed first).
Short Causes, Short Claims, & Causes.
Pleas, Demurrers, Exceptions, Causes,
Claims, and Further Directions.

At Lincoln's Inn.

Petitions (unopposed first).

9 Motions.

Friday

10

Short Causes, Short Claims, & Causes.

Pleas, Demurrers, Exceptions, Causes,
Claims, and Further Directions.

Short Causes, Short Claims, & Causes.
Motions.

.......

16 Motions.

Petitions (uncpposed first).

N. B.-Unopposed Petitions, not exceeding ten, at the Moss v. Bainbrigge sitting of the Court, every day except Seal-days.

Duncan v. Canman

Sherwood v. Vincent

Butterfield v. Rayner
Lewis v. Clowes
Lainson v. Lainson
Attorney-Gen. v. Mayor of
Beverley
Hart r. Clarke

rle. Ferris (D)

CAUSES, &c.
lson v. Harley (Cause, part
Deard) Mich. T.

rd Brougham v. Lord W.
Powlett (Special case)
rkerv. Bloxam (M for dec.)
tesworth v. Armstrong (M
for decree)

eld v. Moore (M for decree)
ith . Brown (Cause)
arley v. Kearley (CI)
ay v. Haig (E, 2 sets,
ig v. Gray F D, C)
Trafford v. Tempest (Cau.)
rrington v. Fenn (Cause)
ddon v. Harrison (M for
decree)

pel v. Shrapnel (M for dec.) wynne v. Gell (Cause) wynne v. Clutton (Cause) entley v. Oldfield (Sp.case) t.-Gen. v. Peacock (M for decree)

eston v. Harrison (Cause) eek v. Ridler (Cause) almesley v. Foxhall (Cause) ailey v. Hughes (Cause) ankreen v. Vandervin (M for decree)

oyd v. Cocker (M for dec.) reen v. Dunn (M for decree) yler v. Blackwell (M for dec.) ammond v. Hammond (Sp. case)

ibson v. Seagrim (M for dec.)
Litfield v. Bowyer (M for
hitfield v. Sturgis decree)
Lele v. Bexley (7) (F D, C) ́
eaumont v. Marquis of Salis-
bury (Cause)

astle v. Castle (Further con.)
ave v. Cave (M for decree)
Festhall v. Bannister (Further
consideration)
yam v. Byam (Cause)
Howell v. Kightley (CI)
leeds v. Wood (M for decree)

Rabbeth v. Squire (Further

consideration) Dean v. Thwaite (M for dec.) Williams v. Hayward (Cl) Mair v. Topham (Further consideration)

Baxendale v. Seale (M for dec.) Bunting v. Marriott (Further consideration)

Douthwaite v. Spensley (Fur

ther consideration)

Rudge r. Winnall (4) (F D, C)
Tuer v. Turner (Further con.)
Langman v. Heard (Further
consideration)

Lewis v. Morris (Further con-
sideration)
Morten v. Bradbury (M for
decree)
Cunningham. Willoughby
(CI)

Hindle v. Nicholson (4) (FD,
C)

Penhall v. Allen (Further con

Stanton v. Gent (Further con-
sideration)

Price v. Jackson (M for dec.)
Ridgway v. Clare (E)
Greenslade v. Dare (Cause)
Barry v. Barry (Further con.)
Williams v. Cliff (Cl)
Amson v. Harris (Further con-
sideration)

Crowe v. Crisford (Further
consideration)
Kebble v. Samms (3) (FD, C)
Hardman v. Earle (Cause)
Webster v. White (M for dec.)
Calley v. Richards (FD, C)
Hood v. Clapham (M for dec.)
Stranger v. Wilkin (M for de-
cree)

Spittle v. Luckcock (M for
decree)
Worraker v. Smith (M for de-
cree)
Gregg v. Coates (CI).

Edwards v. Tate (3) (F D, C) Poole v. Poole (M for decree) | Hollingsworth v. Woodhead

Walters v. Northern Coal Co. Lawrie v. Bankes (M for dec.) (Cause)

COMMON-LAW SITTINGS, IN AND AFTER
MICHAELMAS TERM, 1854.

Court of Queen's Bench.
In Term.