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No.932-Vol. XVIII. NOVEMBER 18, 1854.


Pryce •. Bury.—(Copyholds-Equitable Mortgage- Bird v. Johnson.-(Condition subsequent repugnant-
Tenants in common in Tail, with Cross Remainders


976 - Costs of Surrender-Foreclosure)............ 967

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of Agreement-Trespass)

... 979 bench-Dower Act, 3 & 4 Will. 4, c. 105)



Elsam v. Denny.—(Bill of Exchange-" Retiring" a
Beech 4. Keep.-(Voluntary Assignment-Declara-
tion of Trust)


Bill, Meaning and Effect of, by Acceptor and


Thompson v. Beasley.-(Will-Offspring).......... 973
Stobart v. Todd.—(Practice-Restoring Cause)


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983 Appointment " by Deed or Instrument in Writing" - Will, general Disposition by, and Construction

ADMIRALTY PRIZE COURT, of-Wills Act, 7 Will. 4 & 1 Vict. c. 26, s. 27

The Argo.-(Order in Council of the 29th March Parol Evidence-Rectification of Deed) 973 Continuous Voyage).....


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if the duty is one in the performance of which several The Scale of Charges for Advertisements will in future be persons have not distinct interests), certain cases of con8 follows:

£ 8. d. tribution, and injunction. It remains to be seen wheFor 2 lines or under

0 2 0

ther the common-law Courts will accept the offer of the 3

0 2 6 4

0 3 0

equity Bar, and put themselves under a course of equity,

0 3 6 and be guided by equity precedents, or will prefer to re6

0 4 0 gard their new jurisdiction as one depending wholly on And so on, at the rate of 6d. per line.

the letter of the act of Parliament, and in no way affected * A discount, proportioned to the number of repetitions, by the traditions and rules of Courts of equity. In will be allowed upon all Advertisements ordered for three or rrore insertions.

exercising the jurisdiction by mandamus, there can

be no doubt that the Courts will consider themselves LONDON, NOVEMBER 18, 1854.

bound by the language of the act to administer relief

in many cases in which specific performance would be We have no longer to inquire whether the fusion of refused in equity. law and equity is possible, for the process has already With an equitable jurisdiction, then, in some cases commenced and made great progress; and we may greater than that which Courts of equity themselves trust to the omnipotence of an act of Parliament for its possess, and with some of the machinery--perhaps all being carried into effect in some form. The question, that is essential—by which Courts of equity have conwhether there is any reason in the nature of things, trived to facilitate the exercise of their powers, the ind in any, and if any what, cases, for either the anta- Courts of common law seem to be now deficient only zonism or the mere division of jurisdiction which our in the following branches of equitable jurisdiction Courts of law and equity have hitherto exhibited, has the perpetuation of testimony; the settlement of bounbecome one of immediate practical interest, so that he daries; the administration of trusts in which several' who investigates it may reasonably hope that if his in- persons have distinct interests; certain cases of acquiries lead him to the conclusion that there should be count, contribution, and partnership; the adminisvut one side to Westminster Hall, his speculations will tration of assets; and the care and administration of lot be barren of practical result.

the persons and estates of infants and lunatics. The The last Common-law Procedure Act has placed the jurisdiction that is left to the Courts of equity ommon-law and equity courts on the same footing as may be shortly characterised and distinguished from 'espects discovery of facts and documents, the inspec- that which is now shared with the Courts of common ion of things, specific performance of contracts, the law, as relating to cases in which the Court underinforcement of simple trusts, express and implied, in- takes the duty of deciding on and enforcing in one luding the redemption of mortgages, (for we conceive cause either various rights, wholly distinct and unconhat the new writ of mandamus may issue for the per- nected, except by their union in the same person, (inormance of any duty now recognised only in equity, I fancy and lunacy), or the mutual rights of more than VOL. XVIII.



two persons in relation to a common subject, which is needed in our judicial arrangements. The numecannot be resolved by the simple decision of one issue rous judicial establishments of limited jurisdiction, by or series of issues between two parties, (administration which, in addition to the great Chancery and Commonof assets and of trust estates, winding up of partner- law. Courts, the harmony of the law as a system is ships, &c.) In addition to this judicial jurisdiction, one Court for deciding certain questions relating to

disturbed, exist on no defensible principle. We have the Lord Chancellor in cases of lunacy, and the Court maritime affairs, another for deciding testamentary of Chancery in other cases, takes upon itself to perform questions, another for bankruptcy, another for elections, the administrative duties of a guardian or trustee,

and so forth; and yet there is scarcely a principle of Is there any reason against extending the fusion to law with which any one of these Courts is conversant these remaining branches of jurisdiction? or rather is which the ordinary Courts of common law may not there any reason for keeping up the Court of Chancery Courts, therefore, in their judicial capacity, in no

on some occasion have to consider and apply. These as a separate judicial establishment? for with respect to measure relieve the ordinary Courts from the obligaits merely administrative duties, it is obvious that they tion of omniscience; but they keep up and tend to have nothing to do with the Courts considered as seats increase anomalies, and obstruct the amendment and of judgment, and might be administered in any office simplification of the law. The principles of the law, established for the purpose, under the direction, as to plicable to maritime cases, to testamentary matters


as administered in the common-law courts, are apquestions of right, either of a Court of equity or of a to the contract of marriage and its results, to bankCourt of mixed or consolidated jurisdiction. To the ruptcy, to elections. There is scarcely a conceivable question so put there can be, it seems to us, but one social relation or transaction which may not furnish answer. There is no branch of the law which may matter for decision by a common-law judge; and to not come under consideration in the decision of a case ing to every case requiring the judicial application of

intrust the same Court with a jurisdiction extendbetween two persons; and so far as familiarity with the any branch of the English law would in no degree law is concerned, a common-law judge must, therefore, adů to the multifariousness of the learning at present be as competent to administer equity among a dozen required of its members, while it would relieve them persons, each having a separate interest in a common from all the rubbish and perplexities incident to the subject, as between two. So far, then, as the qualifica- present system of divided jurisdiction. Singleness and tions of the Court or of the Bar are concerned, there universality of jurisdiction once established a body of

judges and lawyers administering one single system can be no reason for confining these polygonal cases to

once organised--the scientific amendment and simplia separate Court and Bar. The only peculiarity which fication of the law would proceed rapidly and safely. is incident to them is the form of procedure; but if We do not despair of this. The barriers of prejudice the continuance of their present exemptions from the have been broken by the late act; the next and most jury lottery is conceded, there is obviously no impe ber-the purification and consolidation of the statutes

pressing step is that which we urged in our last numdiment to the decision of such cases by a Court of and reports. common law which could not be readily overcome by very simple arrangements.

OF INJUNCTIONS. If, then, the experiment which has just been commenced should prove successful—of which we do not entertain the slightest doubt-it must, we conceive, be

(Continued from p. 378). very soon followed by the entire extinction of the Whether the Court will grant an injunction on the Court of Chancery as a judicial establishment, and primâ facie title of the patentee, or will send him to the modification of the common law by the introduc- law first, depends on a careful consideration of the cirtion or substitution of qualifications or rules drawn cumstances of each particular case. from the doctrines of equity. This reform of the com- If there has been possession for a considerable time mon law, in which the judges have at this moment under letters-patent, although the Court may have conto take the initiative, is no common task. It will siderable doubt whether the patent is valid, it will require all the learning and all the labour that can nevertheless protect it by injunction until the right be brought to the work; it will require also, if we can be tried at law. (Harmer v. Playne, 14 Ves. 130; are to have any creditable result, an abandonment of Boulton v. Bull, 3 Ves. 140; Hill v. Thompson, 3 Mer. prejudices, and a conscientious investigation of the 622: see also Kay v. Marshall, 1 My. & C. 373, in physiology, if we may so express it, of the law, for which Lord Cottenham, referring to these cases, apwhich the advocates and judges who are to take a proved their principle, and applied them to a case en leading part in this noble service will have been ill- demurrer, p. 388 et seq.) prepared by their professional education and habits. But although a patent should be of long standing, Lord Mansfield, who, from the fusion of the English yet if there has not been undisturbed exclusive possescommon law with the customs of merchants, evolved sion of long duration, and doubt is thrown on the title, the principles of the existing English commercial law, the Court will refuse an injunction. (Collard v. Alisa, and whose judgment, in attempting to introduce equi- 4 My. & C. 487; Curtis v. Cutts, 8 L. J., Ch., 184). table principles into other branches of the law, is con- And although on a trial of the right at law a verdict is demned by nothing but his defeat, would have been found for the plaintiff, yet if a rule nisi for a new trial equal to the present crisis. Let us hope that the op- is obtained, the Court will still consider the right unportunity now offered of eclipsing his fame will not be determined at law. And if a patent has been but

recently granted, and its validity has not been estaThe fusion of law and equity, when it is accom- blished at law, and the defendant denies and throws plished, will be but an instalment of the reform that I doubt on such validity, equity will not in general att


pon its own notions of the validity or invalidity of the

Review. atent, and grant an immediate injunction without lore, (Hill v. Thompson, 3 Mer. 622), but will send the The British Commonwealth; or, a Commentary on the laintiff to law before it will grant an injunction. The Institutions and Principles of British Government. ourt, however, possesses and exercises great latitude. By HOMERSHAM Cox, M.A., Fellow of the Cambridge Bacon v. Jones, 4 My. & C. 433).

Philosophical Society, Barrister at Law, and Author If, however, an injunction has been granted in pro

of Treatises on the Differential and Integral Calculus. Post 8vo., pp. 600.

[Longmans.] ection of a patent, of which the exclusive enjoyment as been undisturbed for several years, and the defend

This exposition of the existing political, judicial, nt is guilty of great delay in coming to dissolve it, ment is an able performance, and will probably take

and administrative machinery of the British Governhe Court will not press on the plaintiff to try his right its place as a text-book in the universities. The theot law at an inconveniently early period. (Bickford v. retical disquisitions are not diffuse, and the expository Skewes, 8 L. J., Ch., 188).

part is singularly clear, and so concise that the various It was held in an early case (Baskett v. Cunninghame, topics included in the following extensive programme : Eden, 137) that on a conflict between parties, both are adequately disposed of in a space not exceeding that

occupied by Blackstone's first volume, (without the laiming under patents, the Court could not grant an

notes): njunction till the rights had been tried at law. There

The Principles of Government.--1. The duties of s no modern decision overruling this doctrine as to a Government. 2. The rights of Government; social onflict between two patents.

contract, &c. 3. The divisions of the offices of GoFrom the cases referred to, it will be perceived, that vernment. sherever there is any considerable doubt as to the va- bling, prorogation, and dissolution of Parliament, &c.

The Leyislature.—4. The British Legislature : assemidity of the patent at law, an injunction is either not 5. The legislative power of the Crown. 6. The legislagranted at all, or is only granted on terms, in order to tive power of the House of Lords; constitutional value prevent irreparable damage before the title can be tried of the Upper House; balance of power, &c. 7. Proceit law.

dure in Parliament. 8. Passing of public bills. 9. The ultimate object of a bill in equity to protect a Passing of private bills; objections to the present pracpatent is a perpetual injunction, which can in general ply, and Ways and Means. 12. Cabinet and political

tice, &c. 10. Parliamentary documents. 11. Supinly be granted at the hearing; and it has been very parties; evils of party government, &c. 13. The purlately decided, that where a patentee files a bill alleging poses of parliamentary representation; class represeninfringement, and praying an account and perpetual tation considered. 14. Parliamentary franchise; extent injunction, but does not immediately or within any Parliamentary elections. 17. The nature and autho

of constituencies. 15. Parliamentary suffrage. 16. reasonable time apply for an interlocutory injunction, rity of public opinion. 18. Public meetings and the he cannot have a perpetual injunction at the hearing, press. 19. Commissions of inquiry. if the defendant raises a question as to the validity of Judicature.—20. Divisions of law; sources of law, the title; nor will he be allowed to retain the bill, with &c. 21. The Courts of Parliament and Privy Council. liberty to bring an action. The course the Court will 22. The Court of Chancery. 23. The superior courts adopt in such a case is to dismiss the bill, with costs. of common law. 24. Trial of actions at law. 25. Writs

issued judicially. 26. Criminal trials at common law. (Bacon v. Jones, 1 Beav. 382; S. C., on app., 4 My. 27. Trial by jury. 28. Courts of local jurisdiction:

assizes, nisi prius, Central Criminal Court, justices of But as an injunction suit to restrain infringement of the peace, county courts, bankruptcy, admiralty, &c. a patent rarely comes to a hearing, the point generally

Administrative Government.-29. The royal prerogacalling for consideration in reference to injunctions on tive; succession to the Crown; forms of government this subject is, whether there is such an extent of doubt and its committees. 31. The Secretaries of State. 32,

compared &c. 30. Parliament; the Privy Council on the title, or on the right of the plaintiff to ask for The fiscal administrative offices. 33. Military and assistance in support of it, as to induce the Court to naval offices. 34. Boards constituted by acts of Parliarefuse an injunction, or to grant it only on terms. (See ment. 35. Local administrative government; central on this Harmer v. Playne, 14 Ves. 130).

and local government; municipal, county, and paroTo obtain an injunction ex parte against an alleged in

chial officers, &c.

International Government.-36. International statutes, fringer, the plaintiff ought to swear, at the time of making treaties, &c.; diplomatic negotiations and officers; inthe application, to his belief that he is the original in- ternational executive; slave trade ; armies and navies; ventor; (3 Mer. 624; Sturz v. De la Rue, 5 Russ. 322); balance of power discussed. for although when he obtained his patent he might have Colonial Government.-37. Colonies defined; histovery honestly sworn as to his belief of such being the rical illustrations; government of colonies; colonial fact

, yet circumstances may have subsequently inter- taxation; judicature; colonies classified and enumevened, or information have been communicated, suffi- rated; principles of colonial government. cient to convince him that it was not his own original Conclusion.-— Remarks on the mutual responsibility invention, and that he was under a mistake when he of governing bodies and the vitality of the English made his previous application. And where a patentee Constitution. has not accompanied his bill by a sufficient affidavit No attempt has been made to give a systematic and on this point, and fails in sustaining his injunction on detailed account of the British Constitution since the other grounds, it will be dissolved with costs on this time when Blackstone performed the task upon sound (Sturz v. De la Rue, 5 Russ. 322).

Tory principles, assuring his readers that there never Equity will restrain other persons from selling after had been an alteration inade in the law that men had the expiration of the patent, as well as before it, articles not afterwards found reason to regret. The merits of piratically made during the continuance of the patent. Blackstone's Lectures will secure their immortality; (Crossley v. Beverley, 1 Russ. & M, 166, note). nothing that can be written will displace them from

& C. 433).

it was

the list of institutional works; but their faults and de- There is, indeed, a division of wrongs into public and fects were such as to call for a companion or supple- private, which is essential, and wholly irrespective mentary treatise, even at the time of their delivery; ihe remedy, but that is not the division under consand the immense changes that have since come upon deration-we mean the distinction between injuries or almost every branch of the Constitution have doubled offences which affect individuals, and injuries or offerte the urgency of the want. Mr. Serjeant Stephen un- which affect the community, independently of any irdertook his “ New Commentaries” with all the con dividual damage; of which latter kind are various fidence of incapacity, only expressing a doubt whether offences against the Constitution or public order, such

reasonable to suppose that the plan would be as treason, bribery, perjury on criminal trials, smug. found entirely free from defect, or the execution from gling, mutiny, &c. inaccuracy." The plan, however, was Blackstone's, An instance of the other defect above alluded :) altered as one might alter the plan of a house by trans- may be seen in the conclusion of the otherwise eicele posing the front and back rooms: the execution, done lent chapter on the stability of the English Gover.. on the Vinerian Lectures, such as modern humanity re- ment. The element of stability last mentioned in the volts at, only to be paralleled by the embowelling, quar- chapter is the important but generally misunderstand tering, and other cookery formerly awarded to traitors. one of the royal prerogative; and the consideration of All the merit of the New Commentaries is comprised in this is opened in a manner which leads one to expert the tolerably accurate citation of modern statutes and a satisfactory exposition of its working. No such thing. decisions.

We are told that the prerogative is a regulating and Mr. Cox does not invite any comparison with Black-controlling power, and how the influences of a wise stone, still less does lie undertake to displace him, but sovereign, a virtuous sovereign, an illustrious sovereign, leaving the historical investigation of the subject to a patriotic sovereign, and an energetic sovereign, rebe pursued in the first book of the Vinerian Lectures, in spectively operate to the desired end. Very well Ilallam, and elsewhere, he treats of the Constitution as it knowing, as we do, that neither hereditary nor any exists at the present day, endeavours to distinguish the other kind of succession can render any one of these vital from the formal parts of institutions, and to de qualities permanent in a dynasty, we look next ! scribe them according to their working results, taking be informed by what contrivances our Constitution is occasion during this survey to point out defects as well made to extract an equally, or at least a sufficiently, as excellencies, and on the whole to make a panegyric beneficial regulating and controlling effect out of a on the Constitution which is satisfactory because it is foolish, a lying, a dissolute, a bigoted, an ambitious, cu discriminating.

a pig-headed sovereign, a king of cousins, a tailor king, Mr. Cox's view of things appears to us to be gene- or a king log. This is what the course of the argurally clear and philosophical, but his abstract disqui- ment leads us to expect; and this might have been sitions are rather suggestive than complete; he is more done. We find, instead of this, something which conoften happy in criticising the definitions of others than verts the chapter into a dedication out of place—and in framing his own, and he sometimes disappoints his there an end. reader, after opening up an investigation in a very hope- These blemishes, however, are few, and are more noful manner, by unaccountably leaving it half finished. ticeable because they occur in a work of considerable Thus, upon Blackstone's definition of public and pri- merit. If we have dwelt too much on them, the folvate wrongs, that “the former are an infringement or lowing extract from the chapter on public opinion will

privation of the private or civil rights belonging to in- make amends :dividuals, considered as individuals, and are therefore “But though consentience gives weight to an opinion,

frequently termed civil injuries; the latter are a branch it cannot of itself prove it. There have been cases in of public rights and duties which affect the whole com- which the judgment of one man has prevailed against munity, and are distinguished by the harsher appella- that of all the world beside. There was a time when ‘tion of crimes and misdemeanours,” Mr. Cox remarks public opinion universally declared the earth to be that this is no more than giving public and private immoveable: it moved nevertheless. It were an endwrongs other names, and establishes no definition of less task to cite from history the occasions in which them, as the infringement of every right affects the “the judgment of whole nations has gone astray in whole community; and, after further illustration, he matters of the most momentous importance to their proceeds—" It appears to me, however, that a simple welfare. Far more brief would be the task of enu.but sufficient distinction between private and public 'merating the instances in which the national judg

wrongs is, that the former infringes upon rights which ment has directed political action in according with ' are essentially individual, the latter on rights which wisdom and justice only. The same sort of public are essentially general.” But this is merely Black- opinion which reared the golden calf at Horeb enstone's definition in fewer words, and it is condemned by throned the goddess of reason in Notre Dame at Paris

. the remark cited above. An injury to the property or 'In the one case, the lawgiver, by the strength of a to the person of another may be criminal or not, ac- 'wisdom not his own, brake the idol; in the other

, it cording to circumstances, and a criminal injury may at had been well for France to have possessed rulers the same time entitle thé injured person to a civil re- mighty, in like manner, to resist public opinion. And medy; but in every case it is an infringement upon an can we say that such public opinion is extinct? Dare essentially individual right-an individual right which we affirm that public opinion has ceased to set up the the public has a general interest in maintaining. There golden calf and the altar of reason? Or do we need is, in fact, no difference between the two classes of public · more solemn rebuke of the pride of humanity, which and private wrongs which are intended both by Black- 'exalts popular judgment overmuch? To the end of stone and by Mr. Cox, except with regard to the re- time will resound the warning echo of that fearful medy:. Considered merely as wrongs, they are undis- \ 'cry, 'Not this man, but Barabbas.' tinguishable. Those wrongs which entitled the injured “If we trust to the teaching of history, we must look party to compensation or restitution from the offender for other tests of the accuracy of public opinion beare, while considered in connexion with that remedy,sides that which mere consentience affords. Public private wrongs; and those wrongs which it is thought judgment is not exempt from all the infirmities of inexpedient to restrain hy inflicting a punishment on the dividual judgment; on the contrary, while on the one offender, independently of any recompense to the in-hand it possesses one claim to accuracy which private jured party, are public wrongs; and the same wrong judgment does not possess, on the other hand public may be in one aspect private, and in another public. judgment is subject to a cause of error to which pri

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