Changes in the Law during the last Session of Parliament.

such land, or out of any of his land (§ 7);
and it is expressly declared, that the right
of a widow to dower shall be subject to any
conditions, restrictions, or directions which
shall be declared by the will of her hus-
band, duly executed as aforesaid (§ 8).
The necessary forms under this act will
be found in the Second Part of the
mentaries."

THIS act passed on the 24th July, 1833, and is intituled "An Act to exempt from Poor and Church Rates all Churches, ChaCom-pels, and other Places of Religious Worship."

interfere with any rule of equity, or of any ABSTRACT OF RECENT STATUTES. Ecclesiastical Court, by which legacies bequeathed to widows in satisfaction of dower are entitled to priority over other legacies (§ 12). The act then abolishes two obsolete forms of dower; that is to say, Dower ad ostium ecclesiæ, or Dower ex assensu patris (§ 13).

such their trouble.

Abstract of Recent Statutes.

451

thereto on or before the 1st of June then last, f office of Chaff Wax, and for the expenses of until the decease or resignation of such person: the office of Sealer the like yearly sum of 507. and reciting that all the persons holding the and to the Secretary of Presentations, for the said offices, except the Clerk of the Patents, expenses of the office of Clerk of the Presentawere appointed to such offices prior to the 1st tions, the yearly sum of 50., and for the exJune 1832: and reciting that it is necessary penses of the office of Clerk of Dispensations that competent persons should be appointed for and Faculties the like yearly sum of 50%. the discharge of all or some of the duties of 5. From the time when the office of the the said offices when and as such offices shall Keeper or Clerk of the Hanaper shall become become vacant; and that it is desirable that the vacant by the death, resignation, or removal persons to be appointed to discharge the duties of the present holder thereof, all the duties of of such offices shall be paid by fixed salaries for the office shall be performed by the Clerk of the Crown in Chancery, to be appointed by virtue of this act; and there shall be paid to the said Clerk of the Crown for the said duties of Keeper or Clerk of the Hanaper the yearly salary of 2007.: Provided that if the said office of the now Keeper or Clerk of the Hanaper shall become vacant before any vacancy shall occur in the office of the now Clerk of the Crown, that then only the duties of the said office of Keeper or Clerk of the Hanaper shall be performed by the deputy of the now Clerk of the Crown, until a vacancy shall occur in the office of the said now Clerk of the Crown, in the same manner as if such deputy were Clerk of the Crown appointed by virtue of this act, and that there shall be paid to such deputy for the said duties of Keeper or Clerk of the Hanaper the aforesaid yearly salary of 2007.

1. It is therefore enacted, that the Lord Chancellor, or other the person intrusted with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, shall have as heretofore a secretary, called "the Secretary of Lunatics;" and that after the death, resignation, or removal of the person now holding the office of clerk of the custodies of idiots and lunatics, all the duties of the clerk of the custodies of idiots and lunatics shall be performed by the said secretary of lunatics, in addition to his other duties provided that the person intrusted as aforesaid may make rules and regulations in regard to the duties of such secretary, including such duties as he shall perform by virtue of this act, and to alter or vary the same, as he or they shall think fit.

2. The Lord Chancellor shall have as heretofore an officer called "The Purse-bearer to the Lord Chancellor," and a certain other secretary, called "The Secretary of Presentations;" and that from the time when the offices before mentioned of Chaff Wax and Sealer, shall respectively become vacant by the death, resignation, or removal of the present respective holders thereof, all the duties of such several offices shall be performed by the said Pursebearer; and that when the offices of Clerk of the Presentations and of Clerk of Dispensations and Faculties, shall respectively become vacant by the death, resignation, or removal of the present respective holders thereof, all the duties of such several offices shall be performed by the Secretary of Presentations for the time being.

3. His Majesty, his heirs and successors, under their Royal Sign Manual, may nominate and appoint fit persons to fill the said several other before-mentioned offices of Clerk of the Crown in Chancery and Clerk of the Patents, as vacancies may occur; and such persons so to be nominated and appointed shall hold their respective offices during good behaviour.

4. From the said 20th August, 1833, as to the office of Clerk of the Letters Patent, and from and after the death, resignation, or removal respectively of the several holders of the said other offices, there shall be paid to the Clerk of the Crown in Chancery the yearly salary of 8007.; to the Clerk of the Patents the yearly salary of 400/.; to the Secretary of Lunatics, for expenses attending the office of Clerk of the Custodies of Idiots and Lunatics, the yearly sum of 2007.; to the Purse-bearer the yearly sum of 50%., for the expenses of the

6. The said several salaries shall be taken in full satisfaction for the duties of the said offices respectively, and of all expenses incident to the performance thereof.

7. The several persons who by virtue of this act shall hereafter hold or perform the duties of the said several offices of Keeper or Clerk of the Hanaper, Clerk of the Crown in Chancery, Clerk of the Patents, Clerk of the Custodies of Lunatics and Idiots, Chaff Wax, Sealer, Clerk of the Presentations, and Clerk of Dispensations and Faculties, may have, receive, and take all the fees and emoluments which have been accustomed to be paid and which of right ought to be paid to the said several officers respectively, or to any deputy or clerk of such several officers, in respect of the said several offices, as the same would have been payable if this act and the said recited act had not been passed; and that such fees and emoluments shall be accounted for once in every three months, commencing in the first instance from the date of such appointments respectively, and shall be paid by the said officers respectively into the receipt of his Majesty's Exchequer, and be carried to and made part of the consolidated fund of the United Kingdom of Great Britain and Ireland; and the account of the party so paying such fees shall be verified by his oath, which oath any one of the Masters in Ordinary of the High Court of Chancery is hereby required and authorized to administer.

8. The said several salaries shall be issued out of and be chargeable upon the consolidated fund, after paying or reserving sufficient to pay all such sums as have been directed under any former act or acts to be paid out of the same fund; and the said salaries shall be paid

452

Form of Writ under the Law Amendment Act.-On Tithe Suits.

quarterly, clear of all fees, rates, taxes, and deductions whatsoever, at the four usual days of payment in the year, that is to say, the 5th January, the 5th April, the 5th July, and the 10th October in each year, the first payment to be made on such of the said days as shall next happen after the appointment or succession to the said offices respectively shall have taken place.

9. And reciting that the office of Clerk of Inrolments in Bankruptcy is by the said recited act also directed to cease as therein specified, but power to re-appoint to the said office is

given by the act next herein mentioned; be it enacted, that the said office shall and may continue and be in force, and that fit and proper persons may be from time to time appointed to the same, with all the powers, authorities, and duties, fees, rights, and privileges, given to or imposed upon the said office by an act passed in the second and third years of the reign of his present Majesty, intituled "An Act to amend the Laws relating to Bankrupts," any thing in the said first-recited act to the contrary thereof notwithstanding.

FORM OF WRIT UNDER THE LAW AMENDMENT ACT, FOR THE TRIAL OF AN ISSUE.

WILLIAM THE FOURTH by the grace of God of the United Kingdom of
Great Britain and Ireland, King, Defender of the Faith, to the Sheriff
of our County of
WHEREAS A. B. in our Court, before the
Barons of our Exchequer, at Westminster, on the
last impleaded C. D. of a plea of trespass on the case upon promises.
FOR THAT WHEREAS, one &c., (here copy the declaration) and thereupon
he brought suit: AND WHEREAS the defendant on the

day of

day of last by his Attorney, came into our said Court and defended the wrong and injury when, &c.; and saith that he did not undertake or promise in manner or form as the plaintiff hath above thereof complained against him, and of this he put himself upon the country, and the plaintiff doth the like: AND WHEREAS, the sum sought to be recovered in the said plea, and indorsed on the writ of summons therein, does not exceed 201.; and it is fitting that the issue above joined should be tried before you the said Sheriff of We therefore, according to the form of the statute in such case made and provided, command you that you do summon twelve free and lawful men of your county, duly qualified according to law, who are in nowise akin to the plaintiff or to By order of the defendant, who shall be sworn truly to try the issue above joined the Hon. Mr.between the parties aforesaid, and that you proceed to try such issue accordingly; and when the same shall have been tried in manner aforesaid; We command you that you make known to the Barons of our said ExcheBy Rule of Court, dated, quer what shall have been done by virtue of this writ, with the finding &c. of the Jury hercon indorsed on the judgment may be given thereupon: Date of Issu-Lyndhurst, at Westminster, the ing of Writ. our Reign.

Buron

or

}

day of next, that WITNESS, John Singleton Lord in the

day of

year of

ROSE.

Attorney for the Plaintiff.

Attorney for the Defendant.

ON THE TITHE SUITS TO SAVE THE | vations worthy of insertion in your journal, in PRESCRIPTION ACT.

the hope of removing some portion of the numberless misapprehensions which exist on the subject, and more especially those (for some there are) which affect and unfairly impeach the legal profession.

Whether the tithe-owner has an equal right with any other subject to require the enforcement of the laws of his country, is a position

1

On Tithe Suits to save the Tithe Prescription Act.

453

I do not propose to discuss; but assuming | be previously instituted, for the late debate he has such right, then the accusations of op- displayed a sad lack of correct information. pression cannot be well founded, unless it be in the mode of suing. If suits have been multiplied, or so instituted or otherwise conducted as to render them unnecessarily expensive or vexatious, the legal profession, I will not shrink from admitting, and they alone, have to answer it, as the form of proceeding rests solely with the complainant's solicitor and counsel. Has there been such oppression?

As an instance, take the denounced case of Kendal, which, when examined, will be seen was a singularly unfortunate selection for the cavillers at the church. The persons sued in that parish were never computed at less than 1500; and according to some of the members, there was that number of suits. All the bills were represented as instituted to save the operation of Lord Tenterden's Act,-all filed Mr. Blamire, on the second reading of his by the same person, and he the clergyman,-— bill, candidly admitted what is unquestionable, and to enforce an income of 10,000l. a year. though since continually overlooked; namely, In no one respect were these representations that the operation of Lord Tenterden's Act accurate; nor was it stated, as in justice it could be claimed in respect of any tenement; ought to have been, that Kendal in extent, if so that where it was intended to dispute any not in population, though the latter exceeds claimed exemption from tithe in kind, nothing 15,000, is one of the largest in the kingdom. short of proceeding against the occupant of The great tithes of the parish belong to Trinity each tenement in respect of which the exemp- College Cambridge, as lay impropriators, and tion was claimed, would suffice; consequent- who for upwards of a century, and by a series ly the persons to be sued were marked out, of leases, have granted them to the family of not by an arbitrary, but a defined rule. A the present lessees. These lessees, more than tithe-owner can sue with more safety in equity twelve years since, filed a bill against some of than at common law. A suit cannot be worked the farmers in the parish for tithe in kind, inwithout infinite danger, and consequent injus- cluding the tithes of agistment, green crops, tice, to a complainant, if more than from eight &c. As to these tithes, the answer of the to about twelve defendants are included. This farmers was not a modus, not an exemption, is not only well known to every practical equity but that the vicar, whom they had never, or barrister, but can be most clearly demon- yet have paid, was entitled to them. The strated. As, however, the explanation might vicar was made a party to the suit; he did not be turned to a mischievous purpose (for some court litigation, though his right was so adsolicitors, in the hope of saving expense, have mitted and deemed clear, and though his inunadvisedly exceeded the safe number of de- come from the parish would by success have fendants,) it is better to omit it. Where seve-been abundantly liberal, whilst up to the last ral bills, with the same issue, have been filed, return it was under 3007. per annum has any one included in it less than eight de- first cause heard was before the Vice Chanfendants, or has there been any other unneces-cellor, about two years since, when the vicar, sary expense occasioned? If so, it must be known to the tithe defendants, who, it must be admitted, are sufficiently ready to proclaim their supposed grievances, and should be instanced. No such case has been as yet adduced. In the Kendal suits, to which such pointed reference was made in Parliament, the number of defendants in each suit vary from ten to thirteen. Whilst Mr. Blamire's bill was under discussion, it was hoped some of your correspondents would have considered whether the bill, as in justice it ought, dealt equally with complainant and defendant, and whether all the benefit contemplated by the bill could not, as is at least debateable, have been obtained, and with more fairness and effect, by the parties themselves, and as their common interests dictated, by short and inexpensive orders in the suits, than by any enactment. However this might have been,

the late interference of Parliament, and the extraordinary remarks then made,a have so raised the expectations of the tithe defendants, that legislation cannot now be easily dispensed with. It is hoped, however, that inquiry will

The

in accordance with his previous forbearance, declined taking an active share-content to accept whatever should be declared to belong to him. The judgment was in favor of the lessees. The farmers appealed; and as regards the agistment, green crops, &c. succeeded in obtaining issues at law; one of

b The number of tithe bills filed with refer

ence to Lord Tenterden's Act, is urged, as shewing the tithe owner's watchful care over, and rigidness in exacting his rights; but is it not rather an irrefragable proof of his past forbearance or laxity?

• In the Times Paper of the 4th September, the number of bills filed by the vicar alone, is On the 6th, they admit having been corrected, stated at 1000, as from a respectable quarter. and promise to communicate with their original correspondent and publish his answer. Where is it?

be stated, that the farmers' counsel had, at the d In justice to the Vice Chancellor, it should

hearing before him, overlooked two material documents supporting the vicar's title; and it a Mr. William Brougham, a Master in Chan-was mainly that circumstance, and to try the cery, is reported as saying, that nine out of effect of these documents, that the Lord Chanten of the Kendal suits now pending, and which cellor so far listened to the appeal as to direct may judicially come before him, must fail.

the issues.

454

On Tithe Suits:-Imprisonment for Debt.

which was subsequently tried, and found in favor of the lessees. In August last, the Lord Chancellor granted a new trial on the issue. The success of the farmers, such as it was, on the appeal and on the application for a new trial, was founded on the title of the vicar:

ing, against a tenant of my Lord Lonsdale, for
setting aside a claimed modus.
Sept. 25, 1833.

FOR DEBT.

R.

they themselves attempted not to adduce any ON THE LAW OF IMPRISONMENT other answer, defence, or argument, than his title. The Lord Chancellor enquired what difference it could make to the farmers whether they paid the lessees of the great tithes or the vicar. On which Mr. Duckworth, one of the counsel of the lessees, replied, without being contradicted, that the object of the farmers was to cheat both.

To the Editor of the Legal Observer.
Sir,

Notwithstanding the deference due to the great authorities who have vindicated the practice of imprisonment for debt, I confess I am unable to discover anything very cogent in the reasonings advanced in its favour. Provided a person in insolvent circumstances intimate his situation to his creditors, and offer to make a voluntary surrender of his property to them, he

The vicar finding Lord Tenterden's Act coming into operation, with the vicarial rights still unascertained, and that his further forbearance might compromise those rights, and for ever, was driven to consider whether he would be justified in such forbearance. With whatever readiness and patience he might sub-has, it appears to me, done all that should be mit to a sacrifice of his own income and rights, he deemed he could not honestly compromise the rights and income of others, his successors. On his enquiring of the committee who conducted the farmers' defence, whether, if they succeeded against the lessees by virtue of his title, they would respect that title; they replied, with candour, if not honesty, they would if successful against the lessees, and he made any claim, resist him. Under these circumstances, with reluctance, deferred to the last moment, and as a matter of duty, the vicar filed bills. The lessees, on succeeding before the Vice Chancellor, and being still resisted, filed a number of other bills, and lately more, and so as to include all the farmers who did not chose to submit to the decision. However the whole claim to tithe was made, and bills to determine it existed years before Lord Tenterden's Act was contemplated. The whole number of bills filed by the lessees is fifty-six, comprising about 600 persons as defendants; whilst that of the vicar is forty-nine, comprising about 550, of the same 600. One member, and I observed with surprise and regret it was the Solicitor General, is reported as having stated that 1500 defendants were in effect the same as so many suits. Whilst every practitioner in equity knows that suits could not be extended beyond the number of bills; nor could the complainants, whom it was sought to control, render the suits, though the defendants might, more expensive than as if each contained only one individual. The ten thousand a year income was equally over stated.

required of him, and ought not to undergo any imprisonment. If he has deceived his creditors by false representations, or if he conceal or fraudulently convey away any part of his property, he should of course be subjected to the pains and penalties attached to swindling; but when such practices are not alleged, or cannot be proved, sound policy, I apprehend, would dictate that creditors ought to have no power over the persons of their debtors, and that they should be entitled only to their effects. It is said, indeed, that the fear of imprisonment operates as a check to prevent persons from getting into debt, and so no doubt it does; but then it must, on the other hand, be borne in mind, that the power to imprison tempts individuals to trust to its influence to enforce payment of their claims, and makes them less cautious in their inquiries as to the condition and circumstances of those to whom they give credit. The carelessness of tradesmen, and their extreme earnestness to obtain custom, are more than anything else the great causes of insolvency; and the power of imprisoning merely tends to foster and encourage those habits. If a tradesman trust an individual with a loan of money or goods, which he is unable to repay, he has made a bad speculation; but why ought he, because he has done so, to be allowed to arrest the debtor's person? If he wished to have perfect security, he either should not have dealt with him at all, or dealt with him for ready money only: such transactions on the part of tradesmen are perfectly voluntary, and if they place undue confidence in a debtor who has not misled them by erroneous representations of his affairs, they have themselves only to blame.

The Lord Chancellor's precept and example are so much regarded by the country, on such a subject, that it is to be regretted he did not, It would really therefore be for the advanin one of his speeches on throwing out Mr. tage of creditors, were all penal proceedings Blamire's bill, take occasion to announce that against the persons of honest debtors abolished. so far from seeing any injustice or other im- A tradesman ought rather to trust to his own propriety in endeavouring to avert the opera-prudence and sagacity to keep him out of tion of Lord Tenterden's Act, he, the Lord Chancellor, had himself, and as lessee of the Reverend John Heelis, the rector of the parish of Brougham, filed a bill, which was still pend

scrapes, than to the law, for redress; he may deal upon credit with those whom he knows, but he should deal for ready money only with those of whose circumstances and characters he