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Trial of Issues.- Selections from Correspondence.
407 will be, accomplished by the Judges under
SELECTIONS the powers given by the Law Amendment FROM CORRESPONDENCE. Act, which carries into effect almost all the
No. XXXII. recommendations of the Common Law Commissioners. There remains, however, the consideration of the alterations as to evi
PROVINCIAL LAW LECTURES. dence and costs, on which the Commis To the Editor of the Legal Observer. -sioners have yet to make reports.
Sir. Resuming our subject, it is important
Permit me to employ your useful channel of that the under-sheriffs of other counties in
communication in briefly submitting a disadvan
lage to public notice which legal students appear should, without loss of time, pursue the I to me to labour under in the pursuit of their course adopted in Lancashire, by fixing studies—I allude to the want of Public Lecturing specific days in each month for the trial of in large and populous provincial towns. This issues under the act, as well as assessing important method of instruction, even in Lon. damages on writs of inquiry. Of course
don, was not so general and comprehensive as
it ought to have been, before the incorporation the principal towns, with reference to extent
of the Law Society, which appears to have set of wealth and population, should be selected,
the example of Public Law Lectures. It apand due notice given, so that the complete
pears to me that that society might be the working of the recent act may be ascer means of introducing into large towns sometained before the next meeting of Parlia- what of its own useful and beneficial plans; but ment.
in order that it may have the power of elliciSo far we have spoken only of the faciently doing so, an alteration in its charter conlities afforded by the Law Amendment Act
| ferring that power would of course be neces
sary. for the trial of causes not exceeding 201.
T'he students of the medical profession haye · But it is equally important to advert to the their lectures in abundance ; while the study of diminution of expense which will be effected the law is confined to a practical routine of by the Assizes Removal Act. In the county employment, which allows no time for the study under consideration, the assizes will no of it as a science, and the principles upon which
| the English laws are founded are left to be col. agricultural part of the county, to Liverpool,
| lected from their operation alone. It has been as the commercial, and Manchester, as the
frequently said by writers upon the subject, that
unless the law student be acquainted with the manufacturing portions; and if the same
spirit of the laws-unless he comprehends the course be pursued in Yorkshire and other principles of their foundation, and is able to discounties, where the local circumstances may cern between what is consistent with such render it desirable, we see no reason to principles and what is not, he becomes puzzled doubt that every reasonable complaint
at every new case which he cannot find a preagainst the present administration of justice
cedent for, and has no discretion in legal mat
ters beyond what is furnished by Positive Law, will be speedily removed.
1 as he finds it laid down in works of practice We would suggest, not only to the un- í his knowledge only extending to “italex scripta der-sheriffs of counties, but to the provincial est.” But even the acquirement of knowledge practitioners in general, the expediency of in every branch of practical law would be matepreparing as accurate a statement as possible rially facilitated and hastened by means of public of the several parts of each county from lecturing; for it is evident, that although the which the great bulk of actions come for practice of an office in which a student is
placed he ever so extensive, and ever so varied, trial; and to present memorials in due
yet it seldom happens that there is not some time for the adjournment of future assizes branch of practical law which he has not had to the localities where the parties and wit- an opportunity of engaging in and observing. nesses reside, so that all practicable reduc- This, then, would be remedied by public lection of expense may be effected.
turing; as of course a regular systematic examiWe refer to another article in this Num-nation into all branches of practical as well as ber (page 405.6) in which the expense of elementary and theoretical law could be institrials at the assizes is further examined;
| tuted; and though practice perhaps is not to
| be thoroughly understood but hy engaging in and we invite additional information and lit. vet if the knowledge of the student be by suggestions on these subjects, in order that this means materially increased—if he will not, Parliament, as well as the Judges and the when any new and unfamiliar branch of pracprofession in general, may be put in com- | tice requires his attention, be totally in the plete possession of all the materials requisite dark upon the subject if he has at least a to be ascertained before any other extensive
xtensive general idea of the way in which he should act,
(putting aside the great advantages which public
en alterations are made in our Courts of Justice, liput
is lecturing affords by furnishing knowledge in and especially before the revival of the elementary law), the end is in a very great deLocal Courts project.
2 D 4
Selections from Correspondence.Remarkable Trials, No. XXVI.
gree answered. Hoping that this subject may action, Sir Patience Ward was alledged to have meet with the notice of some of your corre- falsely and corruptly sworn that there was no spondents, and that they, like me, may be per- mention of the Duke of York or of cutting suaded of its importance and utility,
throats while Pilkington was in the room; that I remain yours, &c. the discourse about the Duke was over Birmingham, Sept. 18. A STUDENT. before Pilkington came in, and the Duke was
not named. The information charged the
contrary of these statements. SPOILED STAMPS UNDER THE NEW ACT.
The following was the evidence for the pro-
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 Staip that there was a discourse about burning the Office, Somerset ħouse, 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 that was hanged for firing the city; and Piluseless to me; but he informed me he would be kington answered, yes. And that Sir Patience incurring a heavy penalty by so doing, and did positively depose further, that there was no declined to do so. I have thus between 601. / inention made of cutting of throats. and 701. worth of stamps in my possession, with Mr. Wood deposed, that Sir Patience, at the the prospect of their not realizing as many said trial, did affirın positively, or upon his pence.
oath, that the discourse concerning the Duke of York was over before Pilkington came in;
and that there was no mention of cutting of PALACE COURT.-COUNSEL.
throats. To the Editor of the Legal Observer.
Sir James Smith, alderman, deposed, that Sir,
Sir Patience did positively, or upon his oath, In all the reforms or alterations of the law. say, at the aforesaid trial, that Mr. Pilkington and the practice of its courts and members. was not there while they were discoursing conwhich the Lord Chancellor has effected and is cerning going to St. James's, the residence of effecting, I wish he would just peep into Great the Duke, declaring the Duke was not talked Scotlaud Yard, and annihilate ihe little Court of. Whereupon the Chief Justice Pemberton, there, with its monopoly of barristers and at- applying himself to Sir Harry Tulse, Sir Harry torneys.
made answer, I am very sorry to say it, he was Last week I had to defend a trumpery slander | there all the while. cause; and the plaintiff having taken in counsel Sir John Peake deposed, that Sir Patience specially, I followed his example: but when the affirmed, either positively, or upon his oath, two specials entered, the common barristers said that Mr. Pilkington was not by, while the Duke they had a rule in that court that no foreigner
foreiener l of York was mentioned. could plead there whilst there were any counsel
Sir Thomas Field deposed, that Sir Patience of the court disengaged; the consequence of said, that Mr. Pilkington was not in the room which was that no less than sir counsel were when any thing was spoken relating to the Duke
ed in this petty action ! in which the of York. plaintiff could not have recovered more damages.
covered more damages! Sir Francis Butler, who was foreman of the than nineteen guincas, that being the whole jury, at the trial between the Duke and Pilkingamount laid in his writ, and one of my counsel ton, deposed, that the great question at that merely held a blunk brief.
trial was, whether the words, “firing the city,” E. B. related to the Duke of York, or not; and Sir
Patience deposed, they did not relate to the
Pilkington was not in the room, while they
| discoursed of the Duke of York; that this he No. XXVI.
swore positively, to the best of his remem
brance; he heard no qualification. That after CASE OF SIR PATIENCE WARD, FOR PERJURY,
| the jury went out of Court, they debated the
matter among themselves; and they should 1683.
have laid a little more weight on the evidence An information was filed by the Attorney-Ge- of Sir Patience, if he had not sworn, that when neral against Sir Patience Ward, for perjury, Sir William Hooker took some exceptions in an action for scandal, brought by James at Pilkington's words, and asked, what do Duke of York, the King's brother, against one you mean? he (Sir Patience) laid one hand Thomas Pilkington, for the following words: upon Pilkington's mouth, and the other upon “He (the Duke) hath burnt the city, and is his breast, and demanded also, what do you come to cut our throats.” On the trial of that mean? and answer was made, Hubert. This
Remarkable Trials, No. XXVI.- Superior Courts : Chancery. 409 made the jury believe his evidence ought to be swear at that trial, that Mr. Pilkington was not set aside.
in the room, when the discourse concerning Sir Harry Tulse, alderman, deposed, that on the Duke of York was mentioned. And he the 10th of April, according to an order of afterwards swore, that when Mr. Pilkington Court made the day before, they (the aldermen) said, “he hath burnt the city,” he (Sir Patience) met at Guildhall, where were present Sir Wil. clapped one hand on his mouth, and the other liam Hooker, Sir Patience Ward, Sheriff Pil on his breast, and bid him explain himself, who kington, and himself. And Alderman Pilking. he meant, Hubert? That Sir Francis Butler ton said, “he burnt our city, and is come, or the forernan, thereupon jogged him (Lee) and will come, to cut our throats." This evidence bid hiin take notice of that. And that they he, Sir William Tulse, gave at the trial between inferred Mr. Pilkington must mean the Duke the Duke and Pilkington, and now averred that of York; for else why would Sir Patience have it was true. He testified further, that he was stopped his mouth? asked at that trial, what was the preceding dis- 'The Chief Justice having summed up the course? He answered, it was concerning an evidence, the jury withdrew, and after some order for going to St. James's, or to the Duke time, brought the defendant in guilty; who, of York; some complained of that order, and baving received some intimnation that it was would have had it re-debated. Whereupon he intended to set him in the pillory, absconded. (Sir Harry) answered, it was too late now, for the ('ourt had agreed to it; and then Pilkington said those words, “he hath burnt our city, and
SUPERIOR COURTS. 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 posi
Court of Chancery. tively say he was named at that time, for the
SPECIFIC PERFORMANCE.—COMPROMISING A debate was about the order made, to con
SUIT. gratulate the Duke of York, or of going to St. James's; one of them he was sure was
Certuin parties to a suit, beneficially internamed.
ested in the subject matter, desire to comThe Chief Justice demanding of Sir Harry, promise it ; other parties in the same inwho he understood Pilkington meant, when he
terest, not insane, nor under age, object : said, “ he is, or will come to cut our throats."
the Court is of opinion that it has jurisSir Harry answered, in his opinion it was the
diction to compel them to consent; sed Duke of York.
. quære, Sir William Hooker deposed, that Pilking. The bill in this case was filed for a specific ton, standing at the end of the table, in the performance of a contract for the sale of an room where the aldermen were met, did say, estate, under the provisions of a will. The “ hath he burnt the city ? and is he come to plaintiffs were the trustees for effecting the cut our throats?”
sale, and had entered into a contract for that It being demanded, if the Duke of York was purpose with the principal defendant, the pur. named? 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 be- the Master was directed, and he certified that ing further asked, if it was plain, Pilkington the title was good. To the Master's report meant the Duke of York, when he said those the defendant took no less than 120 excepwords? Sir William answered, nothing could tions. The trustees and some of the legatees appear more plain, for the discourse was about taking alarm at this prospect of endless litigathat matter, and nothing else ; and that Sir |tion, moved for and obtained an order for a Patience Ward was there all the time.
further reference to the Master, for the purThe defendant's counsel urged in his behalf, pose of ascertaining whether it would be fitting that Sir Patience did not swear any thing po- and for the benefit of all parties, to comprositively at the trial, between the Duke and mise the suit, and accept the detendants' offer Pilkington; but qualified his evidence, by of 60,0001. for the estate ; all the costs to be swearing, as he believed, or according to the paid out of the estate. The Master reported best of his memory, and consequently could in favor of a compromise on those terms; and not be perjured, and brought several witnesses, that report was subsequently confirmed by an and some that took notes at that trial, who order of the Vice-Chancellor. testified, that Sir Patience frequently made use The present application was an appeal from of qualifying expressions at that trial, viz. as his Honor's decision. Mr. Altorney-General, he believed, or remembered. They brought Mr. Pepys, and Mr. Lynch, in support of the also a great many witnesses to swear, that Sir appeal, submitted, on behalf of two of the Patience was a gentleman of a fair character, legatees interested in the proceeds of the sale and not likely to perjure himself.
under the will, that the Court had no jurisBut after the defendant's counsel had pro- | diction to compel them to assent to the produced all their witnesses, the king's counsel posal of the defendant. The Court might called Sir Francis Lee, who was upon the jury indeed interpose on behalf of infants or lunabetween the Duke and Pilkington; and Sir tics, but had no power over those persons of Francis being sworn, gave the following ac- full age, cognizant of and capable of taking count of the inatter; viz. that Sir Patience did care of their own interests. The title to the
11 he time
Superior Courts : Chancery; Equity Exchequer.
estate could not be deemed bad, nor the ex. the authority of decided cases, as alınost 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 60,0001, 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 tbe tained.
case, as he wished to impress on all persons, Sir Edward Sugilen and Mr. Spence, for all | professional and non-professional, the necessity the other parties, said, that the objections to of being very careful in the selection of the the compromise of the suit came from persons words by which they expressed their intentions, who were entitled to only two parts out of five in disposing of the property of themselves or of the proceeds of the sale. The Court was of their clients. The substitution of an “or” bound, for the protection of the other parties, for an “and,” or vice versa, or the omission creditors and legatees, to affirm the order of of a single word, such as “ besides,” and other the Vice Chancellor. That order was just in like particles, which are sometimes used withont principle, and agreeable to the practice of the any ineaning-inere expletives,--but too freCourt: it would put a favorable termination quently lead to a vast deal of misconstruction, to this long protracted and expensive suit, and perhaps to a complete violation of the which must, if persevered in, ultimately swal- intentions of the testator. It were much to low up the whole purchase money.
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 mentary dispositions; as he was not quite sure, the acceptance of an offer of compromise, he notwithstanding the anxiety of Courts to do did not see how the property of creditors and justice, but that testators, if they could rise legatecs could be protected from the effects of from their graves, would be astonished at the ruinous litigation.
construction of their wills, and the effect given His Lordship adverted to this case on the to their intentions. last day of his sittings before vacation, and was Grey v. Sharpe and others. Sittings at Linunderstood to say that he would not disturb coln's Inn Hall, July 6, 1833. the Vice Chancellor's order, as no precedent was shewn against it.
Court of Equity (Erchequer. Braizier v. Hudson. Sittings in Lincoln's
TRUSTEES.-SOLICITOR. Inn, Aug. 20th, 1833
Held, that a solicitor who accepts a trust under
a will or settlement, is not entitled to charge CONSTRUCTION OF A WILL. - CUMULATIVE
for voork and labour done by him as a soli. LEGACY.
citor in erecuting the trust. Suggestions for drawing and perusing wills: The question raised and now decided in this The construction to be put on them depends
S case, was, whether a trustee or executor, who on the circumstances of the testator and on :
is a solicitor, is entitled to charge for business The words used : the expediency of fived I done in the trust as a solicitor. A minor ques. legislative forms.
tion was, whether, if not entitled to make such The principal question in this suit, and that charges, he was entitled to the value of stamps to which the following decision applies, arose and parchments of a deed, prepared with the upon the construction of a will. In one part approbation of his co-trustees, but never excof the will, a legacy of 10,0001. was given to a cuted. party, and in another part, a codicil, a legacy | In the first argument on these points, the of 90,0001. was given to the same party. The case of Turner v. Hill, lately decided by his question was, whether the testator intended the Lordship, but not yet reported, was cited latter legacy to be cumulative, or substituted against the solicitor's right to charge ; and the for the former.
cases of Baker v. Grosvenor, (cited from MS. The Vice Chancellor was of opinion that the notes of Mr. Lovat), and Carinichael v. Willson, legacy was cumulative, and not substitutional. 4 Bli. 145, decided in the House of Lords,
The Lord Chancellor, upon appeal, affirmed were cited on the other side. the decision of the Court below, after hearing The questions having again come on for the inatter fully argued, and taking time to further argument on a succeeding day: consider his judgment.
The Lord Chief Buron observed, that it was His Lordship, in the course of his judgment, the duty of a trustee to watch over the solicitor entered into a minute examination of the ex- in all proceedings connected with the trust, pressions used by the testator, in order to shew and to take care that he did only that which that it was clearly his intention to make the was proper, and that his charges were not unlegacy cumulative; and said, that on questions reasonable; he was also bound to tax the costs of this sort, but little light could be drawn from of the solicitor, if necessary. The trustee be.
Superior Courts : Equity Exchequer.
411 ing appointed for this duty, the question was, is not allowed to charge for business done by whether a Court of Equity would allow a trustee, him. acting as an attorney to the trust estate, his! The Lord Chief Baron.-A trustee generally charges for work and labour in that capacity? | is not allowed to make any charge for his la
Mr. Lovat said, there had lately been two bour in the execution of the trust; he might, cases of this nature decided in the Court of if he did not like the office, decline it; but if Chancery; the first of which came on before he accepted it, the law of this Court, and, inSir W. Grant, and was this: A gentleman of deed public policy, prohibited him from making the name of Grosvenor, who was a partner in any advantage of it: that being the law genethe house of Wadeson, Barlow, and Grosvenor, rally, the question now is, whether a trustee, solicitors, was appointed a trustee under a being a solicitor, can charge for his labour as deed, which was a trust to sell a certain estate, such, in exception to the general rule. to pay an auctioneer a sum of noney owing to His Lordship having taken time to look into him by the gentleman executing the deed, and cases, delivered the following judgment on a the expenses of the conveyance. The house, subsequent day. 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 cime 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. Grunt 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 einploy 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 Ě. 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-l performs business that was necessary to be nutes corrected, by introducing other words transacted, if this attorney, being an executor, for the allowance of such charges, when Mr. I performs those duties himself, he, in my opiLynch, who was for the cestui gue trust, op- nion, is not entitled to be paid for the perposed the alteration, and stated that the object formance of those duties : it would be placing of it was to get an allowance in respect of bu- his interests at variance with the duties he had siness which was transacted by the trustee in to discharge. It was said that the bill might character of a solicitor; which, upon the prin- be taxed, and that this would be a sufficient ciples of public policy, he could not obtain, check ; I am of opinion that it would not; the inasmuch as it was the duty of the trustee to estate had a right, not only to the protection watch over the solicitor. The Vice Chancellor of the taxing officer, but also to the vigilance said, he was not aware of any thing which and guardianship of the executor, in addition prevented atrustee, being a solicitor, from being to the check of the taxing officer. There paid for business done by him in that charac- might be cases (I do not speak with reference ter, if it was necessary for a solicitor to be to the present case) where a trustee, placed in employed, and his charges were such as would the situation of a solicitor, might, if he were be proper, if the business had been done by allowed to perform the duties of a solicitor, another solicitor.
and to be paid for them, be so placed that he Mr. Duckworth said it was of great import- might find it very often proper to institute and ance that the point should be decided ; it was carry on legal proceedings, which he would the general impression among the members of not do, were he to derive no emolument from the profession, that in such cases, a solicitor them, and were to employ another person. In