Abbildungen der Seite
PDF
EPUB
[ocr errors]

An application was in Hilary Term These and many other subordinate powJaft made to the Court for a new trial, on ers, though not expressly given, must be the ground that Mr.Thornton was not the understood to be included in this power procurator of the defendant, duly autho to pay debts. The present was not a rised to accept this bill for her; and it case of mere ministerial authority, but a was contended, that the attornies had case where the whule care of the admini. no authority to provide for the payment stration was delegated by the executrix of the testator's debts in this manner, to the attornies, and all the means of that they were to administer the affets executing the office of executrix put into for the executrix, but that they could do their hands; such construction, thereno act, by which the could become charge. fore, ought to be made both of the parable with the debts in ber own right, and ticular provisions and general words as particularly, that they were not autho- would, as far as possible, place the attor. rised to give a security for the payment of nies where the executrix intended to any debts in her name. The Chief Jusice place them, in her room and stead, indelivered the opinion of the court. The vested with all her authority, and all her general scope of the letter of attorney, discretion. Afsuming, then, that this auhe oblerved, was to put the whole etiare thority to pay debts was larger and more into the hands of the attornies, to com comprehensive in its nature, than the mit the collecting and the disposition of words construed very strictly would imit entirely to them, to delegate to them port, and that it implied authority to all the authority that the executrix por- make all necessary arrangements which fessed, and to constitute thein, as far as the executrix herself might make, in such a thing was possible, executors in order to the payment of the debts, it her name. The authority to pay, dif- might fairly be asked, whether among charge, and satisfy debts, was described, the arrangements that might be necessary with a qualification properly applicable for that purpose, there was one more to this branch of the power, « agreeably likely to occur, more useful, or, in many to the due order and course of law, to cafes, more necessary, than that they pay, discharge, and satisfy,” which he shculd ask and obtain from the creditor's considered as equivalent to saying, • in a of the estate, time for payment of the course of admioistration." The autho. debts, when the time given might prerity to pay debts, on the first view of it, vent all the vexation and expence of a seemed to be more confined and {pecified struggle for priority That an executrix than the authority to collect the effects; herself might make this arrangement, but if it were considered more attentive. no one could doubt ; that it was also ney, it would be found, that the effect of celsary that they who were to have all this part of the instrument, was to com the funds in their hands, who knew, and mit the application of the personal estate were the only persons who could know, in payment of debts to those attornies, within what time those funds could be absolutely and exclusively; and it would got in, and who had the whole applicaalso be found, without the atiistance of tion of them entrusted to their care, who general words, that an authority of this represented the executrix, and in effect, nature necessarily included intermediate were themselves the executors, such have powers, which were not expressed. By it in their power to make such arrangeintermediate powers, he meant all the ment, was equally clear. The conic means necessary to be used, in order to quence of such an arrangement in either attain the accomplishinent of the object case, was that the executrix mighe, by of the principal power, which in this pollibility, become personally, and in her case was the paying, fatisfying, and dil own right, chargeable with debts, as the charging the testator's debus. Number- might become chargcable, in a variety of less arrangemenrs were to he made by other cases, expressly within the power those who were to execute this trust; ac of attorney. But upon whatever ground, counts might be to be fettled, disputed and by whatever medium, in the inclaims to be adjusted, unjust ones to be Itance of debts postponed, this personal relisted, fuits at law and in cquity to be charge was produced, the debt ftill reinftitured and defended, payments to be mained a debt due from the estate, and postponed or installed, according to the payable out of the assets. Such an arAtate of the fund; and, perhaps, if the iangement amounted to an admiffion, eftatc fhould be discovered to be insol- that at the expiration of the credit given, vent, a distribution to be made among there would be affets fufficient to pay the the creditors in equal degree, pari pafü. debt, which still remained a charge upon

the

1796.]

Law Report.-
Outlawry.

575 the executrix in that character, and would nor in truth oxght any to be made, for only become eventually a charge upon the creditor who accepted this kind of her in her own right, if by some unfore- payment purchased the benefit of it; the seen event there thould be a failure of estate had had its advantage, and the assets, or by misconduct, a devastavit in- defendant, as executrix, had had her adcurred. When it was objected, that the vantage of the forbearance. On thefe authority given was reftrained to paying grounds the application for a new trial in her Itead, as executrix, and “ agree

was refused. ably to the due order and course of law," it might be answered, that taking these

MR. PERRY'S OUTLAWRY words to amount to a direĉtion to the attornies, to pay in a course of admini In a former number, having taken ftration, they were not meant to controul, notice of the Outlawry against Sampson nor could they controul their authority, Perry, we observed, that, on considering in any thing necessary to payment in that that case, the subject to which it becoursé. Notwithstanding his direction, longed appeared of two much importance they might take time for the payment of to be contined within the limits prefcribthe debes, baving assets to pay them zuben the ed for a single report ; and we therefore lime came, for then they would pay in a promised, in a subsequent number, to precourse of administration. Much' stress sent our readers with a complete Effay on had been laid on the argument, on there the subject of Outlawry, in which probeing no express power given to the at per notice should be taken of the cale of tornies to sign acceptances for the exe Mr. Perry, and also of that of Mr. Engcutrix; but the objection proved too much. land. We proceed to perform our enIt might as well be argued, that if the gagement. cah of the estate had been kept at a In the times before, and long after, banker's the attornies should not draw the conquest, every male above the age for it in her name. The true question of twelve years was bound to appear at the appeared to be, whether the attornies, Sheriff's Tourn, held for the county, under this power, had a direction to within the month next after Eafter, agree with creditors for the forbearance of where an inquest was held, to see that the debts? The acceptance of this bill he took or had taken the oath of allegiof exchange had been called a security, ance, and found security to the king for but, in fubftance it was merely a mode his good behaviour; this was called the of taking twenty months' farther time for view of frankpledge, that is, the viewing payment of a debt due to the testator that every perlon had nine freemen from these plaintiffs, and payable out of pledges or security for his loyalty to the the assets. Had the twenty mon: hs' cre- king, and his peaceable behaviour to his dit been taken by a mere agreement to fellow-fubjects. From hence, a male forbear, and the defendant had been lued who had attained the age of discretion, as executrix, after the expiration of the that is, the age of fourreen, and refused to time given, she could not have pl:aded stand to the law, might be put out of plene administravit, because, by taking the its protection, in which case he was an credit, she admitted assets. There was . ciently said to be popilus extra legen, or, a formal difference only between that utlagalus ; the same proceeding might also cale and the present; the acceprance have been had against a woman, but then appeared on the face of the bill, to be an she was no: said to be utlagata or outacceptance by her as executrix, and the lawed, but waiviała or waived, that is, consideration of it was value in account says Lord Ccke, dereli&ta, left out or not with the testator. If she was sued in regarded ; because the was not sworn to her own name, and not as executrix, she the law as a man was. was so sued on the same principle on Every perfon, then, of the years of dit.. which assignees of a bankrupt are rued cretion, resident within the realm, a la for what they do after they become not in prison, nor under coverture at the assignees for the estate and at the ex'- time when the process of Outlawry is pence of the estate.: the might indeed awarded, may, on absconding from the have been sued as executrix on this ac- process of the law, be outlawerl : hiltid ceptance, but as the could not in that married woman, or a man in prison withi cale have availed herself of a plea of out covin, or a person beyond the leas, plene administravit, it was not necessary fo at the time of the process of outlawry to fue her. In neither case could any awarded, ought not to be outlawed: defence be made against the demand, the last circumstance, however, that of

being beyond the seas, must be under of his wools which they take of the ftood of the party's being abroad, with people, and the same carry away or out having gone to avoid the process of derain, fo that our sovereign lord the the law; for if a man commit a murder, king may not be thereof served ; and or other felony, and before he can be of them which bring wools to the parts apprehended, or an indictment found, beyond the sea, without being cocleave the realm, to avoid being brought kerted, or paying custom or fubfidy, to justice, he may be outlawed, notwith- whereto they be affesled; and of cufa ftanding his being beyond the seas, as was tomers and finders, which suffer the the case of Mr. England; or, if having fame to the king's damage ; of lay mientered an appearance to a prosecution for nifters, which receive the king's mo. an inferior offence, lie leave the kingdom, ney, and the fame retain ; and also for and be afterwards convicted in his ab- conspirators, confederators, and mainfence, yet he may be outlawed on the con tainers of false quarrels ; and also of viction, as was the case of Mr. Wilkes, them that bring routs in the presence and Mr. Perry.

of the justices, or other the king's mi. In the time of Alfred, and from thence nisters, or elsewhere in the counties, in till long after the conquest, no man affray of the people, so that the law could be outlawed but for treason or fe may rot be done, as well of them which lony, the punishment of which was death: bring the same, as of them which come an outlaw was said to bear cafut lupinum, in their company, or as of them which or a wolf's head, because any man might bring false money in deceipt of the peokill him, as being out of the protection ple: againft all those, in case they may not of the king's laws, as he might kill a be found, or brougbt in to answer, by atwolf, which was then esteemed the most tachment or distress, for the profit of our pernicious animal that infested the king- sovereign lord the king, the exigent Thall dom. It being, therefore, not only law. be given and sued, and not against anful, but meritorious, to kill an outlaw, other." it cannot be wondered at, that it was And, by ft.

18, Edw. III, ft. 2, C it then common for outlaws to flee to the is enacted, “ That no exigent lhall from woods for shelter ; some of whom, as thenceforth go out, in case where a man Robin Hood, and others, have trans- is indicted of trespasi, unlefs it be against mitted their names to posterity by their tbe peace, or of things which be contained audacious exploits. But, in the begin- in the declaration made in this case at the ning of the reign of Edward III, it was last parliament holden at Westminster." resolved, “ that for avoiding inbumanity, By which is meant the preceding statute. and the thedding of Chriftian blood, it Whether process of Outlawry lay in Thould not be lawful for any man but cafes of misdemeanour, where there was the Theriff to put an outlaw to death, no actual force or breach of the peace, though it were for felony ;” and if any was not folemnly decided till the case of man were to do so at this day, he would Mr. Wilkes.

In that cafe, after great be guilty of murder, unless it were in deliberation, Lord Mansfield, with the the endeavour to apprehend the outlaw : concurrence of the rest of the court of for any person may arrest an outlaw on a King's-Bench, declared, that the offences criminal prosecution, either of his own for which Mr. Wilkes was profecuted, head, or by writ, or warrant of capias and the proceedings upon them, were utlagatum, in order to bring him to exe at the common law ; that the fta. cution. By the ft. of 13 Edw. I, st. 1, tutes which gave process of Outlawry in c. 11. process of Outlawry is given against certain cases, and restricted its iffuing in accountants who shall have been found others, unless under certain circumstances, in arrear before auditors, assigned in ac did not affect the question before the tion of account, if they flee, and it be re court : the process, he faid, in that case, turned to the sheriff'that they cannot be was warranted by the common law, or found.

not at all ; actual force or violence did From Bracton, who lived in the reign not appear to be the criterion on which of Edward I, we learn, that it was or the process of Outlawry depended ; the dained that in all actions of trespass with greatness of the crime, and the severity force and arms, process of Outlawry should of the punishment, seemed to be the ma. lie.

terial circumstances attended to in anBy At. 18 Edw. III, f. 1, it is accord. cient times; fclony did not necessarily ed, “ That of them which be or have imply or convey the idea of actual outbeen receivers of the king's money, or rage ; grand larceny being in its defini,

1796.)
Account of Diseases in Auguft.

577 tion as well as practice, different. Hawk. necessary ingredient, contra pacem," ings confirmed this notion, by saying, could not mean positive force in the com. " that this process, probably, lay for all mission of the offence, appeared from the crimes of a higher nature than trespass reason given why it lay for felony, which vi et armis.” The execution of this pro. was, that it was contra pacem:" that could cess was supposed by Lord Coke (and not mean more than it was an offence in what he said, has been repeated, with its nature against the laws of society, and out examination, by a variety of authors) a disturbance of that good order and goto have been somewhat before Bracton's vernment which keeps a state in unity time : the establishment of that period, and peace. The crime of larceny, in its for a fupposed ordinance concerning Out. very nature, was secret and fraudulent ; lawries, strongly authenticated the tes. when open violence accompanied it, it was timony of that contemporary writer, re. distinguished by the aggravated name of {pecting the cases in which, and under robbery: and in the case of writs, quare what circumstances, this process lay: vi et armis, where this process was given, Lord Coke saw that it was impossible to it was acknowledged to be on account of maintain, “ that Outlawry did not lie the supposed, not any actual force. In fact, for any crime under felony;”. universal therefore, it appeared from Bracton, that practice thewed the contrary, he, there. every offence committed against the peace," fore, supposed a positive facute made subjected the delinquent to the process of about Bracton's time: there did not, how. Outlawry; and the cases thewed that the ever, appear any particular ordinance for peace of the king was broken by disorders extending this process, and there was no without force; some of the greatest crimes authority for the supposition : but Bracton indeed were without force. On there said, “ it lay in omni-transgressione que fit principles the court decided, that process contra pacem : and afterwards, pro omni of Outlawry lay in the case of misdemea. transgreffione, licet minima, ubi quis ad par nours, where there was no actual force of cem domini regis vocatus, venire recufave- breach of the peace. rit, et boc propier contumacium.That this

[To be continued.]

No. of Cales.

S Mealhes

[ocr errors][merged small]

ACCOUNT or DISEASES IN LONDON.

From the 20th of July to the 20th of Auguft.
ACUTE DISEASES.

No. of Cases. Sciatica
MALL: Pox

16 Pain of the Side Measles

A poplexy Scarlatina

6 Paralyhis Hooping-cough

14 Hydrocrphalus Sumner-fever

8 Cephalzi Chili-bed and Milk-fevers

S Dentition Eryfipelatous Sore-throat

4 Cough and Consumption Ulcerared Sore-throat

i Gattrodynia Aprhthous Sore-throas

3 Dyspepfia Tracheal Sore-throat

i Enterodynia Catarrh

s Diarrhea Peripneumony

3 Colica Pi&tonum Peritoneal Inflammation

I Hæmorrhoids Erysipelas of the face

1 Contraction of the Æsophagus Acute Rheumatism

5 Schirrhous liver Fevers in infants

Jaundice
CHRONIC DISEASES. Tabes mesenterica and worms
Althenia

22 Menorrhagia Hyfteria

Fluor albus Syncope

3 Schirrhous uterus Chlorofis

so Gravel and dysury Scrophula and Riekets

7 Lumbar abscess Dropsy

6 'Abscess the cheek Chronic Rheumatism

6 Herpes MONTHLY MAG. No. yii.

[merged small][ocr errors][merged small][merged small]

2

Impetigo

2

2

Noli me tangere

1

I

No. of Cases. during the irregular temperature of the Impetigo

3 air, at the latter end of July. Since the Itch and prurigo

commencement of warm, settled weather, Scaly tettar

I have not observed any inflammatory com, Nertle rash

3 plaints. Inflamed pustules Porrigo

The small-pox and hooping-cough

6 Sycosis

are yet very generally diffused, and seem

much aggravated in consequence of the Morbus pedi ularis

heat of the season. These two comPERIODICAL DISEASES. plaints have been intimately connected Quotidian

for several months past. Jó many in. Tertian

stances the paroxisms of the cough The scarlet fever retains the same mild have continued, without any abatement, form as during the last month. It does through the whole course of the small. not Spread much within the city, but ex pox. The hooping cough, in other cases, tends to the adjoining villages; more first commenced during the eruption of especially on the southward of London, to the sinall-pox, and remained a long time Newington, Kennington, Stockwell, Mit. after it without any materiał alterarion. cham, Streatham, &c. &c.

These observations set aside a general The varieties of the fore-throat, men law infifted on by many phyfiologilts, that tioned in the list of acute diseases, have, as two specific diseases, at least, two specific I understand from other practitioners, been contagions, cannot actuate the human very prevalent during the two last months. conftitution at the same time. That the They were, however, in general, more operation of one coutagion is, in some in, troublesome and lingering than danger- ftances, suspended, while the body is

under the influence of another, may be All the cases of peripneumony, though granted; but I am convinced, from a attended with a spitting of blood, had a variety of cases, that this is not an univer, favourable termination. They occurred fal law.

ous.

STATE OF PUBLIC AFFAIRS,

In August, 1796.
GREAT BRITAIN.

At the same time, an order was issued
BY
Y the King's proclamation, of the sath from the privy council, regulating the

of July, the Parliament, which loud payment of bills of exchange, drawn or prorogüed to Thursday, the 15th of Sep. negociated in the town of Leghorn, prior tember, was ordered to fit for the dispatch to the entrance of the French into that of divers weighty and important affairs, place. and the two houses were required to at An additional article, explanatory of tend accordingly, on the faid 15th day of the treaty of amity and commerce, made September next.

between Great Britain and America, on In consequence of the French successes the 19th of November, 1794, has been in Italy, and particularly their attack up- lately concluded between the United on the port of Leghorn, an order of his States of America and the agents of Majesty' in council was issued on the 27th the British government, purporting, That of July, and an embargo was laid upon by the above-mentioned treaty of 1794, all Thips and vessels then within the ports it was agreed, that it should, at all times, of this kingdom, or whid"thould come be free to his Maj. sty's Tubjects, and to into any of the said ports laden with any the citizens of the United States, and goods or merchandize taken on board in alfu to the Indians, dwelling on either this kingdom, which may be bound to fide of the boundary line, alligned by any of the ports in the territories of the treaty of peace to the United States, grand duke of Tuscany, or in the do- freely to pass and repass by land or in: minions of the Ecclesiastical state ; the land navigation, into the respective terembargo to continue till the further order ritories and countries of the two con. of the board.

tracting parties, on the continent of

America,

« ZurückWeiter »